The Competition Law Observatory (CLO)

Kadir Baş, The Substantive Appraisal of Joint Ventures Under the EU Merger Control Regime, (Kluwer Law International, Alphen aan den Rjin, 2014), hardback, xxii+226 pp., price: €120, ISBN: 9789041158161.

Published in the prestigious “International Competition Law Series” published by Wolters Kluwer, the book under review is based on Kadir Baş’s 2013 PhD thesis at Queen Mary, University of London. It aims to critically analyse the approach towards the substantive appraisal of joint ventures, which the Author considers “one of the most intricate and controversial topics of competition law” (p. xvii), under the EU merger control regime.

In particular, the book explores the current EU merger control approach to some issues arising from the “hybrid economic nature” of joint ventures (as they possess characteristics of both mergers and agreements), namely: what types of joint ventures should be treated as mergers under competition law; how the fact that parent companies remain independent outside the scope of cooperation should be assessed; and which substantive test should be used for joint ventures legally established.

The analysis is carried out in seven chapters. After an introductory chapter, the Author starts with a presentation of the phenomenon of joint ventures and their roles in the economy and as a tool of inter-firm collaboration. The categorisation according to specific sector industries (high-tech, network, air transport and mining industries) is interesting. Chapters 3 and 4 explain how full-function and partial-function joint ventures are appraised under EU merger rules, respectively.

Chapter 5 looks at how joint ventures are assessed under US competition law. One of the issues treated deals with the situation of where the parents retain some independent activities in the joint venture’s market. The Author suggests that “it may be, from an economic viewpoint, more reasonable to incorporate this fact, into traditional merger control analysis, as a mitigating factor, rather than an aggravating factor, as is currently the case in the EU” (p. 144). In the final Chapter 6, the Author offers alternative approaches to the one applied so far, also proposing a new wording of Article 3(4) of the EU Merger Regulation.

Independently from the fact that one may agree or not with the suggestions advanced by Baş, the work is very thought-provoking and well researched, and is certainly recommended to academics and lawyers alike.

Reviewed June 2017
By Riccardo Sciaudone
Head of the Competition Law Observatory

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