Case‑376/20 P, CK Telecoms: Tetra Laval Survives, But The Legal Test For Non-Coordinated Effects Will Have To Wait

By: Pablo Ibañez Colomo (Chillin Competition)

There will be no revolution in EU merger control after all. Today’s judgment in CK Telecoms sets aside the first instance ruling. However, it does so in a way that does not depart from Tetra Laval and the prevailing understanding of, inter alia, the principles governing the review of Commission decisions and the applicable standard of proof.

A close reading of the judgment shows that much of the appeal is about the specifics of the decision. The idea that the General Court ‘distorted‘ the Comission’s analysis pervades the ruling, and comes across as an element that must have been central to the outcome of the case. This post, as usual, will not focus on these specifics, but on the issues of principle addressed by the Court.

The most salient aspects of the judgment, which I examine in detail, can be summarised as follows:

• First, the General Court erred in law when setting the applicable standard of proof. ‘Strong probability’ sets the bar too high, the ECJ holds.
• Second, the ‘marginal review’ doctrine only applies to the legal characterisation of facts and only in relation economic assessments (para 124).
• Third, the General Court erred in law when laying down the conditions under which non-coordinated effects can arise absent dominance (and, similarly, by failing to take into account the full range of factors).
• Fourth, the General Court erred in law when defining the notion of ‘closeness of competiton’ and ‘important competitive force’.

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