Category Archives: Merger control

Competition – Concentrations – Decision declaring that the concentration is incompatible with the internal market

Judgment

T-175/12

09.03.2015

Parties

Jurisdiction

Formation

Judge Rapporteur

Advocate General

Subject-matter

Application for annulment

Deutsche Börse AG

v

European Commission

 General Court

 3rd Ch.

S. Papasavvas

 /

Competition – Merger

Keywords

 Competition — Concentrations — Financial instruments sector — European derivatives market — Decision declaring that the concentration is incompatible with the internal market — Assessment of the effects of the transaction on competition — Efficiency gains — Commitments

Significant points

 [From the press release (no public version of the judgment being available as yet)]

 

The General Court considers, first, that none of the arguments put forward by Deutsche Börse can call into question the Commission’s conclusions on the definition of the relevant market. According to the General Court, the Commission did not make errors of law or assessment in considering that exchange-traded derivatives (ETDs) and over-the-counter derivatives (OTC derivatives) belonged to separate markets.

Secondly, the General Court rejects Deutsche Börse’s arguments relating to the efficiency gains which the merger could have brought and to the commitments made by the companies for the purpose of counteracting the significant restrictions of effective competition.

Noteworthy

 As no public version of the judgment is currently available whilst the parties are consulted on possible redactions to the decision on confidentiality grounds, we are unable to provide substantive commentary on the General Court’s findings.

 However, we note already that the confirmation of the Commission’s 2012 decision is significant in defending the Commission’s long-standing policy regarding competition in securities trading. Indeed, the Commission published a communication in 2004 highlighting the risk of foreclosure on these markets stemming from market consolidation and in 2006 published an issues paper which showed skepticism towards the efficiencies that could arise from the vertical integration of operators providing the trading, clearing and settlement of securities trading (see on these points, PARTSCH Ph.-E., Droit bancaire et financier européen, Larcier 2009, p. 689, paragraph 1090).