In 2021, the Commission announced that it would revisit 15-25 merger decisions adopted between 2012 and 2018 to evaluate whether its predictions during the merger control process regarding entry, expansion and imports materialized ex post, with the assistance of an external contractor.[1]  In February 2023, the Commission issued a request for information in the context of this study, seeking information about the effects of the acquisition by Aegean Airlines of Olympic Air—one of the rare cases in which the regulator accepted the “failing firm” defense.[2]  It has been reported that the Commission has also sent questionnaires regarding Orange/Jazztel,[3] Ryanair/Aer Lingus,[4] Ineos/Solvay.[5]  The final report is scheduled for publication later this year.[6]

In its ex post studies, the Commission does not aim to conduct a second review of the transactions in question.  Rather, the Commission intends to evaluate the economic effects of its decisions, including on prices, quality, and innovation.  Taken together, these ex post evaluations  provide the Commission with insights regarding the effectiveness of its past interventions.[7] 

Ex Post Review of the Aegean Airlines/Olympic Air Transaction

 On October 9, 2013, the Commission unconditionally approved the acquisition of Olympic Air by Aegean Airlines after having prohibited the first attempt of the companies to combine their operations in 2011.[8]  In February 2023, the Commission revisited its assessment of the transaction as a part of its ex post study on economic impact of merger-control decisions.[9]

The Commission has now sent questionnaires to market participants with a view to learning whether its prediction—that rival airlines were unlikely to enter or expand on Greek routes—was correct.[10]  In particular, the Commission’s questions focused on entry and expansion on 11 routes where the Commission identified competitive concerns. 

In addition, prior to the clearance of the Aegean Airlines/Olympic Air transaction in 2013, the companies separately announced plans to leave four routes on which they were competing.[11]  In this context, the Commission asked whether the companies would be likely to re-enter those routes before the end of 2016, absent the transaction.

Aegean Airlines/Olympic Air is not the only merger control decision that the Commission is revisiting.  In January 2023, the Commission sent questionnaires to the market participants in the context of the Orange/Jazztel transaction, conditionally approved by the Commission in 2015.[12]  In particular, the Commission has asked the market participants to explain whether its assessment as to barriers to entry and effect on future competition have proven correct. 

The ex post review of the Orange/Jazztel transaction comes at the time when the Commission is reviewing the joint venture between Orange and MasMovil, Spain’s second and fourth largest telecom operators, respectively.[13]  It remains to be seen if and how the Commission will take its findings from the ex post evaluation of Orange/Jazztel into account in its review of the Orange/MasMovil/JV.

Impact of the Ex Post Study on the Commission’s Decision-Making

In the aftermath of the COVID-19 crisis, with the rise of digitalization, and increasing market concentration, European competition policy enforcement is under intense debate.  The Commission’s ex post evaluations will certainly feed into this debate.  As noted by the 2019 Nobel Prize winners in economics, “[t]o make progress, we have to constantly go back to the facts, acknowledge our errors, and move on.”[14]  However, as the final report is not expected until later in 2023, it is yet to be seen whether it will have a meaningful impact on the Commission’s enforcement.  While these studies may help steer competition policy—and even potentially be used in the assessment of future transactions[15]ex post evaluations may suffer from several shortcomings: [16]

  • Data.  Access to data, both prior to and after the Commission’s decision, is key for the evaluation.  While the Commission could rely on market participants, these may be reluctant to cooperate with the Commission.
  • Methodology.  The methodology used in the ex post evaluations may suffer from shortcomings.  For instance, the robustness of a Difference-in-Differences analysis—often used in ex post evaluations[17]—is dependent on the suitability of the control group.
  • Experts.  The evaluation’s credibility also depends on its experts.  They must be independent from the decision being evaluated.  At the same time, they must be knowledgeable about the decision and skilled in the evaluation methodologies.

[1]              Call for tenders COMP/2021/OP/0003, “Commission assessment of future market entry, expansion and import in EU merger decisions,” June 18, 2021, available at:

[2]              Aegean Airlines/Olympic Air (Case COMP/M.6796), October 9, 2013 (“Aegean Airlines/Olympic Air”)

[3]              Orange/Jazztel (Case COMP/M.7421), Commission decision of May 19, 2015.

[4]              Ryanair/Aer Lingus (Case COMP/M.6663), Commission decision of February 27, 2013.

[5]              Ineos/Solvay (Case COMP/M.6909), Commission decision of May 8, 2014.

[6]              Call for tenders COMP/2021/OP/0003, “Commission assessment of future market entry, expansion and import in EU merger decisions,” June 18, 2021, available at:

[7]              For example, in 2015 the Commission published the conclusions of  the 27 ex post evaluations it conducted.  It found that remedies accepted by the Commission are relatively effective in eliminating anticompetitive price effects: unconditionally approved concentrations result in a 5% price increase on average, compared to around 1% for remedied concentrations.  See European Commission Report, “A review of merger decisions in the EU: What can we learn from ex-post evaluations?”, July 2015, p. 11, available here.

[8]              Although the Commission found significant competitive concerns, it eventually approved the Aegean Airlines/Olympic Air transaction because it found that Olympic Air was a failing company and would have exited the market without the transaction. Aegean Airlines/Olympic Air, para. 840.  See our EU Competition Quarterly Report (January – March 2015) for a detailed analysis of the Commission’s clearance decision.

[9]              Mlex, “Predictions in Aegean’s ‘failing firm’ takeover of Olympic Air revisited by EU watchdog”, February 3, 2023.

[10]             For example, in its 2013 decision, the Commission found that it was unlikely that a “countervailing entry    (that is entry that would be timely and sufficient to discipline the merged entity) would occur in the foreseeable future” on 11 routes where the Commission identified competitive concerns. Aegean Airlines/Olympic Air, para. 630.

[11]             Aegean Airlines/Olympic Air, para. 40.

[12]             Orange/Jazztel (Case COMP/M.7421), Commission decision of June 19, 2015 (“Orange/Jazztel”).  MLex, “Orange-Jazztel deal revisited by EU Commission as part of analysis of past mergers”, January 26, 2023.

[13]             The joint venture between Orange and MasMovil was notified to the Commission on February 13, 2023.  See Orange/MasMovil/JV, Case COMP/M.10896.

[14]             Abhijit V. Banerjee and Esther Duflo, “Good Economics for Hard Times”, PublicAffairs, November 12, 2019.

[15]             European Commission Webinar, “Ex post Economic Evaluation of European Competition Policy”, October 17, 2020, pp. 1-2, available here.

[16]             Fabienne Ilzkovitz, “Ex-post economic evaluation of competition policy: The EU experience”, August 27, 2020, available at here.

[17]             European Commission Report, “A review of merger decisions in the EU: What can we learn from ex-post evaluations?”, July 2015, pp. 18-27, available here.  The Difference-in-Differences is used to estimate the causal effects of the Commission’s decision.