Dissertation: EU merger control has significantly affected the interpretation of the Finnish ...

Uutisen oletuskuva
The development of EU merger control can be seen in the development of Finnish merger control, according to Lic. Sc. Jaana Boëlius. She will defend her doctoral thesis at the University of Vaasa.
Väitöstutkimuksen mukaan EU:n tuomioistuimen antamat kriteerit ovat nähtävissä myös Suomen viimeaikaisessa kilpailuoikeudellisessa ratkaisukäytännössä kuten NCC/Destia -ratkaisussa.

Boëlius examines how the development in EU merger control has affected the development in Finnish merger control in oligopolistic markets. The objective of her study is interregulation which refers to the interdependence of the merger control provisions and case practice between EU and Finland. The focus is on the assessment criteria and the development of the said criteria.

Oligopolistic markets refer to a market structure with a limited number of sizeable firms. Because the behaviour of one firm has an appreciable impact on the overall market conditions, and thus indirectly on the situation of each of the other firms, oligopolistic firms are interdependent.

The effects of a merger on competition in oligopolistic markets can be divided into coordinated and non-coordinated effects. The first effects refer to a situation where firms that previously were not coordinating their behaviour, are, as a result of the merger, significantly more likely to coordinate and harm effective competition. A merger may also make coordination easier, more stable or more effective for firms which were coordinating prior to the merger.

The latter effects refer to a situation where a merger eliminates important competitive constraints on one or more firms, which consequently would have increased market power, without resorting to coordinated behaviour.

The Airtours case is a watershed

The assessment criteria have moved from a structure-based approach to a more behavioural approach. The judgment of the Court of First Instance (currently the General Court) in Airtours v Commission can be considered as a watershed in different phases of the development of the assessment criteria.

In this judgment, the Court adopted three necessary conditions for the finding competition concerns. First, the coordinating firms must be able to monitor to a sufficient degree whether the terms of coordination are being adhered to. Second, discipline requires that there is some form of credible deterrent mechanism that can be activated if deviation is detected. Third, the reactions of outsiders, such as current and future competitors not participating in the coordination, as well as customers, should not be able to jeopardise the results expected from the coordination.

“These conditions can also be identified in the recent case practice in Finland, for example, in the NCC/Destia case”, says Boëlius.

The study shows that EU merger control has significantly affected the interpretation and enforcement of the Finnish merger provisions. However, the criteria and their emphasis are subject to changes. The Court of Justice has later stated, for example, that in applying the above-mentioned criteria it is necessary to avoid a mechanical approach involving a separate verification of each of the criteria taken in isolation.

“It will be seen how the tentative future development in the EU will affect the development in Finnish merger control”, says Boëlius.

Public defence

The public examination of Lic.Sc. Jaana Boёlius’ doctoral dissertation “Interregulation of oligopolistic markets” will be held on Friday 20 May at 12 o´clock in auditorium Kurten (C203, Tervahovi). Professor Matti Rudanko (Aalto University, Finland) will act as opponent and professor Vesa Annola as custos. The examination will be held in Finnish.

Boëlius, Jaana (2016). Interregulation of Oligopolistic Markets – Finnish Merger Control in View of EU Merger Regulation and EU Case Practice. Acta Wasaensia 350.

Publication pdf

Further information: Jaana Boëlius, tel.+358 40 550 9050, email: jaana.boelius(at)gmail.com

Did you like the article?