Illegality of Conduct in EU Merger Control: Should We Trust the “Summary Analysis”?
Illegality of Conduct in EU Merger Control: Should We Trust the “Summary Analysis”?

Summary/Abstract: The paper addresses the problems related to the assessment of ex post illegality of conduct during theex ante merger assessment under the EU merger control regime. Largely overlooked by legal scholarship andmarginalized in the enforcement practice due to its narrow scope of application, illegality assessment and itsapplication under the substantive compatibility test raises important issues related to the relationship betweenmerger control and antitrust enforcement, determination of the Commission’s margin of discretion in assessingcomplex economic matters, role of illegality assessment under the “more economic approach” and its consistencywith the principles of predictability and legal certainty. The paper follows the evolution of legal standards for theillegality assessment developed in merger review jurisprudence and subsequently applied in the Commission’senforcement practice. The discussion evolves around the concept of deterrence, its measurement and feasibility ofadministering the illegality test as an integral part of the substantive merger assessment

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