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PUBLIC INTEREST
CONSIDERATIONS
IN MERGER CONTROL
Presentation of the OECD Background paper
Aranka Nagy
OECD Competition Di...
The Background note together will all materials related to the
discussion can be found at:
www.oecd.org/daf/competition/pu...
Although efficiency is central to competition law and policy in all OECD
Members, the competition laws of some jurisdictio...
OECD Members interpret public interest clauses narrowly and apply
them only under exceptional circumstances, while many no...
Outline
• Why is it a current issue?
• What is the form that public interest takes in the
law?
• Which authority is best p...
Why is it a current issue?
Public interest clauses
‘Public security’,
‘plurality of the media’,
‘prudential rules’
(European Union)
‘National securit...
Enforcing public interest clauses
Institutional design
Single
authority
model
Dual responsibilities model
Shared
competenc...
Other considerations?
Broad
efficiency
claims
Failing firm
defence
Derogation from
the standstill
clause
Specific clausesG...
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Public interest considerations in merger control - Aranka Nagy - OECD Competition Division – June 2016 discussion

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This presentation by the OECD Competition Division was made during a roundtable discussion on Public interest considerations in merger control held at the 123rd meeting of the Working Party No. 3 on Co-operation and Enforcement on 14 June 2014. More papers, presentations and contributions from delegations on the topic can be found out at www.oecd.org/daf/competition/public-interest-considerations-in-merger-control.htm

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Public interest considerations in merger control - Aranka Nagy - OECD Competition Division – June 2016 discussion

  1. 1. PUBLIC INTEREST CONSIDERATIONS IN MERGER CONTROL Presentation of the OECD Background paper Aranka Nagy OECD Competition Division Working Party No. 3 on Co-operation and Enforcement 14 June 2016 Roundtable
  2. 2. The Background note together will all materials related to the discussion can be found at: www.oecd.org/daf/competition/public-interest- considerations-in-merger-control.htm 2
  3. 3. Although efficiency is central to competition law and policy in all OECD Members, the competition laws of some jurisdictions also include objectives which extend beyond the core economic goal of competition law, so-called ‘public interest considerations’. Merger control is likely to have political and economic consequences, so such considerations are particularly prevalent. Public interest considerations in merger control vary considerably across jurisdictions and take various forms. One such form are public interest clauses which be included as merger assessment criteria or in other provisions of the law. The methods for accommodating public interest clauses are subject to debate and differences can be observed across OECD Members and non-members. Abstract 3
  4. 4. OECD Members interpret public interest clauses narrowly and apply them only under exceptional circumstances, while many non-Members use them more frequently. Competition authorities might face a difficult balancing exercise in weighing public interest criteria against competition factors, as they do not necessarily point to the same direction. Apart from clauses in the law, there are some other exceptional and rare circumstances (e.g. financial crisis) where merger assessment indirectly takes into account the public interest through factors like broad efficiency claims or failing firm defence. Competition authorities are not obliged by law to address these considerations in every case and competition law generally does not include public interest in them explicitly. Competition authorities may, however, apply the same balancing exercise in these situations as when measuring competition factors against public interest clauses. Abstract 4
  5. 5. Outline • Why is it a current issue? • What is the form that public interest takes in the law? • Which authority is best placed to enforce public interest clauses? • Are there any other situations when authorities assess public interest in merger control?
  6. 6. Why is it a current issue?
  7. 7. Public interest clauses ‘Public security’, ‘plurality of the media’, ‘prudential rules’ (European Union) ‘National security’, ‘media plurality’, ‘stability of the UK financial system’ (United Kingdom) ‘Benefit to the public’ (Australia) ‘Public benefit’ (New Zealand) ‘Principle or interest of major significance to society’(Norway) ‘Efficiency enhancing effects’, ‘company whose revitalization would be impossible’ (Korea) ‘Public interest’ (the Netherlands) ‘Overall economic benefit’ (Chinese Taipei) ‘National/public security’, ‘defence’ (Singapore) ‘Fundamental strategic interest of the national economy’(Portugal)
  8. 8. Enforcing public interest clauses Institutional design Single authority model Dual responsibilities model Shared competences External intervention Concurrent procedures
  9. 9. Other considerations? Broad efficiency claims Failing firm defence Derogation from the standstill clause Specific clausesGeneral clauses Broad remedy packages

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