This presentation by Nicholas LEVY, Partner at Cleary Gottlieb Steen & Hamilton LLP was made during the roundtable discussion on agency decision-making in merger cases: from a prohibition decision to a conditional clearance held during the 124th meeting of the OECD Working Party No. 3 on Co-operation and Enforcement on 29 November 2016. More papers and presentations on the topic can be found out at www.oecd.org/daf/competition/agency-decision-making-in-merger-cases.htm

1. clearygottlieb.com
Agency Decision-Making in Merger Cases:
Prohibition Decisions & Conditional Clearances
A Practitioner’s Perspective
Nicholas Levy
124th Meeting of OECD Working Party No. 3
November 29, 2016

2. 2
Agency Decision-Making in Merger Cases – A Practitioner’s View
1. A “balance of probabilities” standard should apply to the determination of whether a merger should be
prohibited or conditionally approved.
2. That standard may more readily be met in respect of Phase I remedies, although agencies should be
careful not to abuse that latitude and over-reach.
3. Account should be taken of merger-related efficiencies in assessing both competitive harm and the
appropriateness and proportionality of any remedy.
4. Third party views are relevant, although agencies should be skeptical where third parties have a
vested interest in the outcome of a case or stand to benefit from a remedy.
5. Agencies should be open, straightforward, and timely about the need for, and scope of, remedies in
any case. “Moving the goalposts” during the review process should ideally be avoided.
6. Agencies should be ready to advise as soon as practicable where competition issues are incapable of
being remedied (or may be addressed only with far-reaching remedies).
7. Remedies practice has evolved, and continues to evolve. Providing regular guidance on agency
practice and candidly reviewing the effectiveness of past remedies is extremely helpful.
8. Co-operation and co-ordination between agencies is highly desirable to ensure consistency, avoid
unnecessary duplication, and align procedures and timetables.