The draft Merger Guidelines present themselves as a codification of the case law and the Commission’s decisional practice. Frédéric Jenny and I tested that claim against the full record.
Most of the text passes. The contested provisions do not. They are policy choices written in the voice of settled practice.
Is the change on the table disciplined enough to remain merger control?
Competitiveness, industrial policy and the boundary of the objective
Does European competitiveness belong in a merger assessment at all?
Counterfactual, evidence and symmetry
Can a dynamic efficiency be proven to the standard the draft requires?
Remedies, investment commitments and predictability
Should the Commission clear a merger on the strength of an investment commitment?
Each theme opens with a yes-or-no question, one word per panelist, then three minutes each. Audience questions follow theme three.