The Commission’s Liability For Bad Merger Decisions

Article by Gordon Christian and Simon Holmes*

Originally Published in Competition Law Insight

A Look At The Commission's Exposure Following The MyTravel And The ECJ's Judgment In Commission v Schneider Electric

Two years ago (in "Blocking mergers unlawfully", CLI 25 September 2007), the authors analysed the judgment of the European Court of First Instance in the Schneider Electric v Commission case. That case was a milestone in EC competition law as it was the first time that the Community Courts had confirmed that the European Commission could, in EU parlance, be "non-contractually" liable (that is to say, be liable in tort) for an unlawful merger prohibition decision if certain conditions were met. However, although the case reverberated through the competition community, many practitioners cautioned at the time that, even though the principle had been established, the paucity of merger prohibition decisions – and the significant hurdles put into an