Wed. Dec 1st, 2021

John Gapper’s article on the Penguin Random House deal (“Penguin Random House wins the financial prize”, Opinion, 6 November) concludes that “when PRH publishes so much of the Booker shortlist and makes such healthy profits, it seems strong enough to me”. I myself have no view on this agreement, but it may suggest to some that the burden of proof should be on PRH to justify the agreement, rather than on the US Department of Justice to show that it is harmful.

It is very clear that the burden of proof currently lies with the competition and antitrust authorities if they want to block a transaction.

This is the case in the EU, the UK and in most other countries – especially in the US, where the antitrust agencies cannot block the transaction themselves, but have to prove the damage it causes in a court of law.

Should the burden of proof always be on the competition authorities, or are there some cases where the burden should be on the parties who want to merge to prove that the transaction is not harmful, or even that it holds positive benefits?

Any change does not necessarily have to be for all mergers, but perhaps only for certain categories of transactions – most likely those above a certain size.

Whatever the answer, it’s definitely a debate we need to have.

Simon Holmes
Member, British Competition Appeal Tribunal Visiting Professor, University of Oxford

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