EC Merger Regulation and the Status of Ancillary Restrictions: Evolution of the European Commission’s Policy

In the scheme of things relating to EC Merger Regulation, the European Commission (the ‘‘Commission’’) has done its best to remove the assessment of ancillary restrictions from its ‘‘to do’’ list. The Commission is understandably reluctant to dedicate resources to the assessment of this type of restrictions which, although not part of the main competition law issues raised by a notifiable concentration, can be complex, case-specific and difficult to process within short procedural deadlines. However, once a concentration has been cleared by the Commission and is implemented, contractual clauses that may potentially qualify as ancillary, such as non-competes or various exclusivities, are also among those most likely to lead to future disputes between the private parties concerned. This is especially the case where the parties’ original deal consists in a continuing commercial relationship (e.g. a joint venture) rather than a clean, full transfer of companies or assets.