Rivista del Diritto Commerciale e del diritto generale delle Obbligazioni

Summary: Abstract: The paper takes its cue from the judgement of EU General Court that annulled Commission’s decision to block the proposed acquisition of Telefónica UK by Hutchison 3G UK in the sector of the mobile telephony market. The opposite assessment of the Commission and the Court offers the opportunity to reflect about the criteria for prohibiting mergers due to the so-called unilateral effects in the oligopolistic market. According to Whereas 25 of reg. 139/2004, under certain circumstances, it is possible that concentrations, involving the elimination of important competitive constraints that the merging parties had exerted upon each other, as well as a reduction of competitive pressure on the remaining competitors, may result in a significant impediment to effective competition, even in the absence of a likelihood of coordination between the members of the oligopoly. This study aims to highlight the importance of the strategic interdependence between enterprises operating in the oligopolistic market, so that the market conditions (in terms of price, innovation, quality of products) depend on action-reaction mechanisms of all competitors. The paper concludes assigning importance to the pluralistic structure of market and to the possibility of choice for consumers not only under merger control, but also whatever the Antitrust Authority has to value the risks of lessening competition. In accordance with the results of the debate about goals of competition law, it should be considered inadequate an approach that limits itself to assess the diminutions on the consumer welfare. Keywords: Antitrust Law; Merger Control in European Union; Oligopolistic Market; Risks of Lessening Competition Sommario: 1. Premessa: i confini mobili del bilanciamento degli interessi incisi dalle operazioni di concentrazione. – 2. La concentrazione Telefonica Europe/ H3G UK: il divieto della Commissione. – 3. Segue: l’opposta valutazione del Tribunale. – 4. L’interdipendenza strategica nei mercati oligopolistici. – 5. La “theory of harm” nella valutazione delle concentrazioni nei mercati oligopolistici. – 6. Il contributo al dibattito sull’individuazione degli obiettivi dell’intervento antitrust.