What is the substantive test against which a merger will be assessed?
The substantive test applied by the Competition Authority is whether the merger will obstruct effective competition by giving one or more undertakings a dominant position or by strengthening such a position. The test therefore corresponds to the EC’s former “dominance” test. In practice reference is frequently made by the Competition Authority in its merger decisions to EC Commission’s decisions and the CFI’s and ECJ’s judgments. The test applies to vertical and conglomerate mergers and is the same for all categories of mergers . The Competition Authority has not issued any guidelines on its approach to the substantive assessment. It is specifically stated in Article 17.C of the Act that the Competition Authority shall take into account the development of technical and economic progress provided that it is to consumers’ advantage and does not form an obstacle to competition, the extent to which the competitive position of the merged undertaking is affected by international competition
