Efficiencies and customer benefits in EU and UK merger control
Produced in partnership with John Cook
Efficiencies and customer benefits in EU and UK merger control

The following Competition guidance note Produced in partnership with John Cook provides comprehensive and up to date legal information covering:

  • Efficiencies and customer benefits in EU and UK merger control
  • The ‘efficiency defence’—the legislation and guidelines
  • UK approach to efficiencies
  • EU approach to efficiencies—
  • Proving efficiencies in practice

BREXIT: The law and practice referred to in this Practice Note may be impacted by Brexit. For further information on the potential impact, see: The effect of Brexit on UK competition law in a deal or no deal scenario.

The EU and UK merger control regimes are now very similar in the approach to efficiencies and customer/consumer benefits. The UK practice, and subsequently its revised merger legislation in the Enterprise Act 2002, came to focus almost exclusively on the competition effects of a merger, while the EU regime now appears able to accommodate efficiency arguments within the more flexible test for appraising a concentration introduced as part of the 2004 reforms.

The ‘efficiency defence’—the legislation and guidelines

The legislative provisions in the EU and UK regimes and the explanatory guidance of the regulators provide the scope for evidence and advocacy relating to the efficiency and customer benefits of a transaction under review.

The approach to efficiencies is now very similar across the EU and UK merger regimes. In both, efficiency arguments may be deployed to counter a finding that the merger substantially lessens competition (SLC—in the UK regime) or significantly impedes effective competition (SIEC—in the EU regime). An 'efficiency defence' based on merger savings may negate the possibility of an SLC or SIEC finding if the efficiencies enhance competition (often