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Comment: Novelis-Aleris EU decision brings new theory of harm: ‘pivotality’

By Natalie McNelis ( February 5, 2021, 12:36 GMT | Comment) -- Novelis was hamstrung in the 2019 EU review of its Aleris acquisition by a new theory of harm focusing on “pivotality” to assess capacity constraints, according to the decision published last week. The regulator said a company would gain too much market power unless rivals had enough capacity to cover its share of demand. This novel theory of harm was key to the watchdog’s insistence on a significant divestment in the case.A few years ago, the buzz in EU merger control was “innovation,” which made its debut as a serious theory of harm in the agrochemical mergers of 2017 and 2018. The Novelis-Aleris decision, published last week (see here), brings a new one to the fore: “Pivotality.”...

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