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1 21 (2006 ) 5/ 1 " "" 2 " " 3 " ( ) 4 & 5 18 " " & " " & " ;( ) " ') : "" 150 : ( ) " " ;( ) & ( ) " : (" " ) (2005) " ) " ( ) " ' ' 611/05 " (2005) & & (2005) ' &

2 22 (2006 ) 5/? (" " ) 1988" & ()21 & : " : ; (1) ; (2) " (3) & " " ' 2247/95 " : " (") ( ) 9/99 " ;(1998) 213 (5) " ' ' " ( ) 1/00 ;(2002) 746 (3) ' ' " 7014/02 " ;(2003) 694 (8) 7005/02 " ;(2005) (812 (6) ) 613/05 " ;(2004) 892 (4) ' " (1998) (3) ' " (1988) ( ) ) (2006) 930 ( 6 7

3 23 (2006 ) 5/ 8 " " " " ) 9 10 "" ) & & (1998) " ' Columbus Capital Corporation " (2000 ) " ; " ; (2001) (2002) " US Department of Justice and the Federal Trade Commission Horizontal Merger Guidelines (Issued 1992 revised 1997) and Non-Horizontal Merger Guidelines Commission Notice - Guidelines on the Assessment of Horizontal Mergers under the Council Regulation on the Control of Concentrations between Undertakings (Issued 2004)

4 24 (2006 ) 5/ ) & & (100% ) &??? 30 " " (1971) " ) (1998) (" 5 4 " " (1995) ) (1958" ( ) 11 12

5 25 (2006 ) 5/ " " " " " " & ) International Shoe Co v Federal Trade Commission 14 & : 280 US 291 : & 13 14

6 26 (2006 ) 5/ "In the light of the case thus disclosed of a corporation with resources so depleted and the prospect of rehabilitation so remote that it faced the grave probability of a business failure with resulting loss to its stockholders and injury to the communities where its plants were operated we hold that the purchase of its capital stock by a competitor (there being no other prospective purchaser) not with a purpose to lessen competition but to facilitate the accumulated business of the purchaser and with the effect of mitigating seriously injurious consequences otherwise probable is not in contemplation of law prejudicial to the public and does not substantially lessen competition or restrain commerce within the intent of the Clayton Act" 15 ( ) & " &) Clayton Act 7 & " ( & Clayton Act 7 & 1950 Celler Kefauver Act " : ' ;P Arreda & H Hovenkamp Antitrust Law (2nd ed Aspen 2005) Vol IV p : H Hovenkamp Federal Antitrust Policy - The Law of Competition and its Practice (2nd ed St Paul Minn 1999) p E O Correia "Reexamining The Failing Company Defense" 64 Antitrust Law Journal (1996) : 683 ) "" "" "" ('

7 27 (2006 ) 5/ " Failing Company Defense " ; ( ) " & 18 ) " : 4 " " " " " 18

8 28 (2006 ) 5/ ) Antitrust Law 19 ) : "Business failures are indispensable means of imparting incentive for efficient business behavior by placing the costs of mistake on the firms that make them Condoning monopoly in order to avert business failure protects not only monopoly but what is worse inefficient monopoly It may not even reduce the number of bankruptcies significantly since by reducing the expected cost of failure it encourages firms to take greater financial risks" " " "" Areeda & Hovenkamp H Hovenkamp R A Posner Antitrust Law (2nd ed Chicago and London 2001) p ' 16 " 28 ' ' 16 " Correia 696 ' ' 16 '

9 29 (2006 ) 5/? " ' 16 " Correia & ( ) : : (International Competition Network) ICN 18 " C-68/94 and C-30/95 France v Commission (1998) I-1375 (1998) 4 CMLR

10 30 (2006 ) 5/ 28 ) 29 & & & & ' 16 " H Hovenkamp ) ( ) 80 ) 80 ( It is true the imminent failure if the acquired firm would be" :19 " R A Posner relevant in appraising the competitive effect of the acquisition It might indicate that the acquisition had changed nothing in the market - the competitor that was eliminated by it was on its way out "anyway US Department of Justice and the Federal Trade Commission Horizontal Merger : Guidelines (Issued 1992 revised 1997)

11 31 (2006 ) 5/ " " ) ) & ) 34 " 35 ) ) ) ( ' " (1988) ( ) 613/05 " (2006)930 (3) 951 ' 16 " H Hovenkamp P Arreda & 11 " : 21 & 11 " National Society of Professional Engineers v United States 435 US 679 (1978)

12 32 (2006 ) 5/ ) 36 & 37 Citizen Publishing Co v US 394 US 131 (1969) US Department of Justice and the Federal Trade Commission Horizontal Merger Guidelines (Issued 1992 revised 1997) C-68/94 and C- (26 " ) 30/95 France v Commission (1998) :? Commission Notice - Guidelines on the Assessment of Horizontal Mergers under the Council Regulation on the Control of Concentrations Between Undertakings (Issued 2004) : Co v US Citizen Publishing ) : "A merger is not likely to create or enhance market power or facilitate its exercise if the following circumstances are met: 1) the allegedly failing firm would be unable to meet its financial obligations in the near future; 2) it would not be able to reorganize successfully under Chapter 11 of the Bankruptcy Act; 3) it has made unsuccessful good-faith efforts to elicit reasonable alternative offers of acquisition of the assets of the failing firm that would both keep its tangible and intangible assets in the relevant market and pose a less severe danger to competition than does the proposed merger; and 4) absent the acquisition the assets of the failing firm would exit the relevant market" France v Commission : "The Commission considers the following three criteria to be especially relevant for the application of a "failing firm defense" First the allegedly failing firm would in the near future be forced out of the market because of financial difficulties if not taken over by another undertaking Second there is no less anti-competitive alternative purchase than the notified merger Third in the absence of a merger the assets of the failing firm would inevitably exit the market" ) ( 36 37

13 33 (2006 ) 5/ ; 38?? & 39 & ' 16 " Correia " " ' 7829/03 " : (2005) ' 16 " Areeda and Hovenkamp : ' 16 " Correia "

14 34 (2006 ) 5/ ) 44 ) 45 & & & ) ' 16 " Areeda and Hovenkamp 39 9 " Areeda and ' Hovenkamp ' 16 " Areeda and Hovenkamp (2003) ( ) " " : " Citizen Publishing Co v US 37 "

15 35 (2006 ) 5/ 2004? 46 " & ) & 47 & France v 48 Commission 49 ) ) 36 " 100%

16 36 (2006 ) 5/ ) 50 & & & ) ) ) : "" " (going concern) " " 46 " 50

17 37 (2006 ) 5/?? " : : " ) ( " & 51 & & 51

18 38 (2006 ) 5/ & ) & ) & & 21 & 52 ) ) " ' Columbus Capital Corporation : D P Majoras (2002) "Antitrust Remedies in the United States: ; (1998) Adhering to Sound Principles in a Multi-faceted Scheme" Presentation to the Annual Fall Canadian Bar (Association Conference on Competition Law 2002 (Ottawa) 52

19 39 (2006 ) 5/ ) & & : " "

20 40 (2006 ) 5/ & ) &