Annotation on the Judgment of the Court (Grand Chamber) of 13 July 2023 in Case C-376/20 P, Commission v CK Telecoms UK Investments Ltd [2023] EU:C:2023:561
The year 2023 proved to be quite a rollercoaster for EU merger control. 2023 was the year of innovation, which saw the introduction of the use of Article 22 of the EU Merger Regulation1 (EUMR) to capture concentrations that do not meet turnover thresholds in the Illumina/Grail saga,2 as well as the ‘rebirth’ of applying Article 102 TFEU in assessing concentrations ex post. Yet, it was also the year in which more ‘traditional’ concepts which have been around in the EUMR for nearly two decades, were subject to judicial review before the European Court of Justice (ECJ) for the first time ever. One such case was the CK Telecoms judgment,3 in which the ECJ clarified the standard of proof applicable to merger control in oligopolistic markets as well as the application of the significant impediment to effective competition (SIEC) test to so-called gap cases. This case note will focus on these two points arising out of this judgment.