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

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. 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. 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
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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
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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. Why is it a current issue?

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. Enforcing public interest clauses
Institutional design
Single
authority
model
Dual responsibilities model
Shared
competences
External
intervention
Concurrent
procedures

9. Other considerations?
Broad
efficiency
claims
Failing firm
defence
Derogation from
the standstill
clause
Specific clausesGeneral clauses
Broad remedy
packages