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UPS/TNT – Commission’s disclosure of economic analysis insufficient

Jonas Koponen et al., Linklaters Publications, March 2017

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On 7 March 2017, the General Court of the European Union annulled the decision of the European Commission ("EC") prohibiting the acquisition of TNT Express by United Parcel Services ("UPS").

The Court found that the EC breached UPS’ rights of defence by relying on a version of an econometric model to support its decision that was in some respects different from the one disclosed to UPS during the investigation. The Court holds the EC to a strict standard requiring annulment when there is the slightest chance that the notifying party might have been able to defend itself better if it had access to the final version of the model.

This judgment imposes significant constraints on the EC in terms of making changes to its econometric models following the statement of objections. Given this, the EC may well appeal this judgment to the European Court of Justice.

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