Clifford Chance

The EU Court of Justice's CK Telecoms Judgment: Restoring the Commission's wide discretion to prohibit mergers in concentrated markets

27 July 2023

The recent CK Telecoms ruling of the Court of Justice of the EU (CJEU) has overturned a previous judgment of the General Court, which had sought to create stricter and more structured tests for the European Commission to meet before prohibiting certain mergers in concentrated markets under the EU Merger Regulation.

In particular, the CJEU held that the General Court had applied a standard of proof for the Commission's decision that was too high, an overly restrictive interpretation of certain key concepts that formed the basis of the prohibition, and an approach that unlawfully required certain merger efficiencies to be assumed by the Commission. In doing so, the CJEU's judgment has largely restored the Commission's wide discretion in the assessment of mergers in concentrated markets (e.g., 4-to-3 mergers) that do not create a dominant market player.

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