News
In Two Coauthored Articles, Analysis Group Consultants Consider Future of EU Merger Review in Light of Sustainability Mandates
As the European Commission (EC) works to revise its Horizontal and Non-Horizontal Merger Guidelines, it faces the challenge of balancing the imperatives of preserving competition, encouraging innovation, and integrating sustainability objectives. How it will do so is unclear, and it may well be a significant milestone in the tenure of Teresa Ribera, the EC’s Executive Vice-President (EVP) for a Clean, Just and Competitive Transition. In two articles, Analysis Group Vice President Joshua White, Associate Claire Paoli and coauthor Jay Modrall of Norton Rose Fulbright consider several issues around how the EC’s task might be accomplished, and the possible consequences.
In “Sustainability Considerations in EU merger control,” an article published in the Journal of Antitrust Enforcement, Mr. White, Ms. Paoli, and Mr. Modrall examine the EC’s decisional practice and economic evidence around integrating sustainability benefits into merger assessments. They discuss how sustainability considerations have emerged as a parameter of competition in market definition and competitive assessments, potentially disadvantaging transactions between parties that advance sustainability objectives. The authors consider whether the current framework for the “efficiency defence” can accommodate sustainability considerations, and how revisions to the Merger Guidelines could enable a more balanced assessment of a transaction’s potential benefits and harms.
In “Will the New EUMR Guidelines Be a Significant Impediment to Sustainability?,” an article published in Concurrences, the authors undertake a practical examination of how the current Merger Guidelines account for sustainability benefits, outlining several considerations for the Commission’s ongoing review. They argue that modernizing the treatment of efficiencies – by broadening the scope of consumer benefits, extending time horizons, and applying consistent evidentiary standards – would better align EU merger control with EVP Ribera’s mandate and the objectives of the Clean Industrial Deal.
Read the Journal of Antitrust Enforcement article (subscription required)
Read the Concurrences article
Associated People
Joshua White
Managing PrincipalMr White is a consulting and testifying economist who specialises in applying microeconomics and sophisticated econometric modelling to complex litigation and merger-related questions, primarily in matters involving the health care, financial services and technology industries. He has supported clients in various jurisdictions and industries in follow-on competition damages litigation, assessing overcharge, upstream and downstream pass-on and volume effects. He has served as a testifying expert in the UK Upper Tribunal (Lands Chamber), the UK Competition Appeal Tribunal and the Amsterdam District Court on competition cases.
Mr White has supported high-profile companies with complex merger reviews across multiple jurisdictions, including in the Veolia/Suez, LVMH/Tiffany, Sika/MBCC and Eutelsat/OneWeb mergers. He has also provided evidence to the UK’s Competition and Markets Authority (CMA) and the European Commission (EC), including on behalf of clients involved in cartel investigations, abuse of dominance investigations and mergers. Mr White has also provided support to European financial and competition regulators in coordinated conduct investigations.
Mr White has extensive experience addressing competition and intellectual property (IP) issues in matters related to cutting-edge pharmaceutical products and FRAND licensing questions. As part of this work, he has supported a number of scientific and technical experts in front of courts and regulatory bodies. He also regularly supports pharmaceutical clients on competition issues around market access, pricing, denigration and competition from generic manufacturers.
Mr White has worked in a number of jurisdictions, including the UK, the European Union, Switzerland, Australia, New Zealand, South Africa, Canada, Japan, Korea, the Netherlands, Belgium and the US. His writing has been published in an array of journals, including the Journal of European Competition Law & Practice, the Competition Law Journal and the Journal of Antitrust Enforcement, and he regularly speaks at international competition law and policy conferences.