As a general rule, the European Commission is skeptical about the use of both efficiency arguments and failing firm defenses to address the potential loss of competition caused by a merger. However, as will be seen from the examination below, an identifiable trend is emerging: the Commission is increasingly willing to recognize efficiency arguments to justify a proposed merger.
The three proposed mergers that have been prohibited by the Commission since February 2012 share a number of commonalities that highlight the Commission’s developing view of efficiency arguments and the role of remedies. See Deutsche Börse/NYSE Euronext (Case COMP/M.6166), UPS/TNT Express (Case COMP/M.6570) and Ryanair/Aer Lingus (Case COMP/M.6663).
The Commission has also cleared two mergers since September 2013 on the basis of the failing firm defense. Despite the successful use of the failing firm defense in these two cases, it is still too early to identify a trend in this area. See Nynas/Shell Harburg (Case COMP/M.6360) and Olympic Air/Aegean Airlines (Case COMP/M.6796).