ECJ Antitrust Ruling Not Likely To Jump-Start EC Deal Challenges In "Gap Cases"

In Short

The Development: The Court of Justice of the European Union ("ECJ") annulled a General Court ("GC") ruling that had adopted a high standard of proof for the European Commission ("EC") to block transactions in concentrated markets in which neither the parties to the deal nor other competitors have a "dominant position," a so-called "gap case" (European Commission v CK Telecoms).

The Background: Prior to Brexit, the EC had prohibited a merger in mobile networks in the United Kingdom that would have left three remaining competitors. The EC found that the merger would significantly restrict competition even though it did not result in a "dominant position" under EU law. The GC annulled the EC's decision, holding that the EC failed to prove a "strong probability" of competitive harm. The ECJ disagreed, stressing that the EC need show only that such harm is "more likely than not."