Legal Criteria of Horizontal Mergers Permissibility within the Control over Economic Concentration

This paper is devoted to the legal criteria of horizontal mergers permissibility. The competition law of Russia focuses extensively on the rules of definition of mergers subject to merger control. However, it has some gaps in the rules related to analysis of such mergers (their influence on competition) as distinct from the best practices of antitrust law. In turn, this does not allow participants of business intercourse to understand the criteria by which the antitrust authority is guided in its decision-making process, and, as a consequence, it is impossible to reasonably foresee the results of such control. The key purposes of this paper are: (1) to identify and establish the relationship between the fundamental criteria for the permissibility of horizontal mergers; and (2) to develop the rules for the application of a set of such fundamental criteria. So the paper is politico-legal in its nature. In order to achieve these purposes, the author identifies and analyzes the criteria of the first and the second order. The author refers to the “system criterion” and the “purpose criterion” as the first order criteria which are necessary for a consistent and reasoned justification of rules for the application of the second-order criteria. Among the key second-order criteria the author in particular refers to anticompetitive consequences (the unilateral effect and the coordinated effect), barriers to entry to the relevant market, quantitative criteria, behavioral criteria (in the case of the coordinated effect), merger efficiencies. Based on the results of this analysis, the rules for the application of the second-order criteria are proposed. Key words: control over economic concentration, horizontal mergers, criteria, purposes, presumptions, standard of proof.