Bertelsmann AG and Sony Corp of America v Independent Music Publishers and Labels Association (Impala)
There is no presumption that a merger is compatible or incompatible with the common market, and the Commission must assess the evidence in each case, applying the Airtours criteria to collective dominance in a realistic way.
Facts
Sony and Bertelsmann notified a joint venture combining their recorded music businesses, which would reduce the number of major record companies from five to four. The European Commission cleared the joint venture. Impala, an association of independent music companies, challenged the clearance, and the General Court annulled it, holding that the Commission had not properly examined whether the joint venture would strengthen a collective dominant position. The parties appealed.
Legal principle
The Court of Justice set aside the General Court's judgment. The court said that the Merger Regulation does not establish a presumption as to the compatibility or incompatibility of a notified concentration with the common market, and that the Commission must assess the effects of the concentration on the basis of the evidence. In applying the Airtours criteria for collective dominance, they should not be applied mechanically, but in the light of an overall economic mechanism of hypothetical tacit coordination. The General Court had erred in its approach to the evidence, and the case was sent back.
Related cases on merger control
- Airtours plc v Commission Case T-342/99, [2002] ECR II-2585
- British Sky Broadcasting Group plc v Competition Commission [2010] EWCA Civ 2
- CK Telecoms UK Investments Ltd v Commission Case T-399/16, EU:T:2020:217
- Commission v Tetra Laval BV Case C-12/03 P, [2005] ECR I-987
- Gencor Ltd v Commission Case T-102/96, [1999] ECR II-753
- IBA Health Ltd v Office of Fair Trading [2004] EWCA Civ 142
- Illumina Inc v Commission Joined Cases C-611/22 P and C-625/22 P, EU:C:2024:677
- Meta Platforms Inc v Competition and Markets Authority [2022] CAT 26
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