Prometheus bound? : the uncertain future of the unilateral effects analysis in EU merger control after CK Telecoms

In the recent CK Telecoms (Case T-399/16) judgment, the General Court annulled the European Commission’s decision to block the four-to-three telecom merger Hutchison3G UK/Telefónica UK. This watershed case is set to curtail the Commission’s ability to challenge future mergers in concentrated markets and proposes a fundamental reshape of the analysis of unilateral effects in the absence of dominance. This article shows that CK Telecoms advances six propositions that form the foundation of a new frame of reference for the analysis of unilateral effects under the EU Merger Regulation. This new framework has been welcomed by commentators as a long-overdue recognition that ‘the law’ trumps the Commission’s administrative discretion and as a vindication of the ‘more economic approach’. Based on a thorough review of 15 years of merger enforcement in the mobile telecommunication sector, this article challenges this account by debunking both the ‘rule of law’ and the ‘more economic approach’ arguments in support of the new framework. It instead demonstrates that each of the six principles advanced by CK Telecoms neither constitutes a reaffirmation of ‘the law’, nor aligns EU merger enforcement with the economic analysis of unilateral effects. In critically reflecting on the new framework laid down in CK Telecoms, this article formulates a number of policy proposals as building blocks for an alternative frame of reference that would preserve the effectiveness of EU merger enforcement in future unilateral effects cases while enhancing legal certainty.