While the U.S. antitrust authorities have not clarified their enforcement practice toward vertical and conglomerate mergers since the issuance of the Department of Justice's 1984 Merger Guidelines, the European Commission on November 28, 2007 published its long-awaited Non-Horizontal Merger Guidelines. The Commission did not draw up Draft Guidelines until February 2007 even though it had announced its intention to compile such Guidelines shortly after its publication of the Horizontal Merger Guidelines in January 2004. These Draft Guidelines were then published on the Commission's homepage and interested parties were invited to provide comments on this draft. The Commission received thirty-two comments, a majority of which supported the new Guidelines and approved of the Draft Notice. The Final Guidelines published in November 2007 are mostly consistent with the Draft Notice – the European Commission only made minor changes to its draft.
It took the European Commission almost four years to prepare its Non-Horizontal Merger Guidelines. As such, one would expect the new Guidelines to carefully and exhaustively describe the Commission's analysis of vertical and conglomerate mergers—but this does not seem to be the case. This article describes the Commission's approach to non-horizontal mergers described in the Guidelines by comparing the new guidelines to the Commission's previous approach.
