In March, 2009, the Competition Bureau released in final form a Bulletin to provide "practical guidance" on the Bureau's approach to "efficiencies" claims in mergers, as provided for in section 96 of the Competition Act (the Act). In particular, the Bulletin addresses the information required and the analytical approach to be used to determine when the Bureau will refrain from challenging on a merger on the grounds that the efficiency gains likely to be brought about by the merger will be greater than and will offset the anticompetitive effects likely to arise from it. The Bulletin, released in draft for public comment in August 2008, is said to supplement the discussion of efficiencies in the Bureau's Merger Enforcement Guidelines (revised in 2004), commonly known as the MEGs.
Of note in the final version of the Bulletin, the Bureau appears to have softened its approach to the strict separation of its consideration of the anticompetitive effects of a merger (which the Bureau must prove) from the efficiencies to be brought about by the merger (which the merging parties must prove). The Bulletin now states that cost savings from substantiated efficiency gains may be relevant to a consideration of whether the merger will produce anticompetitive effects if, as a result of the cost savings, "the parties to the merger are better positioned to compete in a competitive market or are less likely to engage in coordinated behaviour." In addition, the Bulletin expressly identifies so-called "dynamic efficiencies" (defined as the "optimal introduction or improvement of products and production processes") as often being a "key factor in Bureau reviews in concentrated industries characterized by rapid technological change or innovation."
Most importantly, the final version of the Bulletin no longer contains the section of the draft suggesting that the Bureau would consider whether, as a result of the merger, efficiencies would be forgone (i.e., reasonably contemplated resource savings by one or both of the merging parties would not be achieved because of the merger). The Bureau would then discount any efficiency gains established by the merging parties by the amount of the foregone efficiencies. This section of the draft Bulletin was the subject of substantial criticism on the grounds that, among other things, it was not contemplated by the Competition Act and was not susceptible to meaningful evaluation by the Bureau; the removal of this section of the Bulletin is a welcome development.
In the end, the Bulletin amounts to a helpful - but not highly enlightening - supplement to the MEGs' discussion of the Bureau's approach to efficiencies. The real test of the Bureau's stated willingness to clear mergers on the basis of efficiencies will be whether the Bureau will refrain from challenging a merger it believes will produce anti-competitive effects on the grounds of the efficiencies it will generate or whether, as has historically been the case, parties will have a very difficult time 'clearing' an otherwise anti-competitive merger by relying on the "efficiencies defence" in section 96 of the Act. Only time will tell.
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