Ūkio subjektų konglomeratinių koncentracijų teisinio reguliavimo ypatumai Europos Bendrijoje

Abstract

A “pure” conglomerate merger involves the acquisition of products that are not related on the demand or supply side: it is a merger in which there is not a horizontal, vertical, complementary or neighborhood relationship between the products. That is, conglomerate issues arise in mergers between parties which are not actual or potential competitors of one another (horizontal mergers), and where neither produces a good which is, or could be, used by the other (vertical mergers). Conglomerate mergers may have as their motivation or consequence effects which are positive or at least ambiguous from the perspective of maximizing consumer welfare. When a conglomerate merger occurs between two suppliers of complementary goods (i.e. products where demand for one is positively correlated to demand for the other), the merger group generally has an incentive to reduce its prices, which benefits consumers. In addition, conglomerate mergers may lower transaction costs, give rise to productive efficiencies (e.g. through economies of scope), increase pricing efficiency and/or prevent profit expropriation. On the other hand, conglomerate mergers may harm consumers in certain circumstances, in particular by marginalizing or eliminating competitors. The principal ground for intervention in conglomerate mergers is that the merger will allow the merged group to leverage market power in one market („the leveraging market“) into a second („the leveraged market“) to the detriment of consumers („leveraging“).
It is first necessary to identify the conduct that the merged group might adopt as part of a leveraging strategy. This might involve, for example, offering customers the option to purchase two or more products for less than the aggregate of the individual prices (mixed bundling), designing products so that they are not compatible with rivals‘ products (technical tying) or engaging in predatory pricing. The second stage is to assess whether the merged group will have the incentive and ability to leverage its position in one market into a second. Determining whether the merged group will have the incentive and ability to pursue a leveraging strategy will depend to a material extent on the type of leveraging that is being investigated. Thirdly, if so, will the conduct in question have a significant effect through the elimination or marginalization of competitors? Finally, it is necessary to determine whether there is a causal link between the merger and the adverse effects identified at the second and third stages.
In addition to that, it has to be said, that recent decisions of the Community Courts have made it more difficult for the Commission to intervene in conglomerate mergers.