EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

of competition on the market and allows start-ups to take part in the innovation race mentioned above. On the one hand, start-up acquisitions play an important role in facilitating entrepreneurship and innovation (e.g. Rasmusen, 1988). The combination of the start-up’s resources (e.g. a specific set of data the start-up generates), services or products with those of the digital platform may give the merged entity a significant competitive advantage over its rivals (Lécuyer, 2020, p. 43). On the other hand, killer acquisitions may have negative effects on competition, market structure and even innovation of products and services. On digital markets, even more problematic may be “reverse” killer acquisitions, where the question is what innovation is being foregone by the buyer as a result of buying a business it could have built organically instead (Caffara et al . [online], 2020). 1.2 Teleological perspective In recent years, several reports on the competition policy towards digital markets have been published (Crémer, 2019 (the “EU law report”); Furman, 2019 (the “UK law report”); Stigler [online], 2019 (the “US law report”) (the “Reports”). They propose a new theoretical framework for merger control, e.g. related to the theory of harm (for instance, the use of the balance of harm theory by competition authorities instead of the balance of probability theory), but their axiological context has not been presented in detail. Regardless of this, the Reports represent different teleological perspectives of competition law: they all postulate the consumer welfare protection, but perceive its value differently. According to the EU law report, “even where consumer harm cannot be precisely measured, strategies employed by dominant platforms aimed at reducing the competitive pressure they face should be forbidden in the absence of clearly documented consumer welfare gains” (Crémer, 2019, p. 3). The UK law report advises the Competition and Markets Authority (the “CMA”) to “take more frequent and firmer action to challenge mergers that could be detrimental to consumer welfare through reducing future levels of innovation and competition, supported by changes to legislation where necessary” (Furman, 2019, p. 12). The US law report postulates the most consequentialist concept of consumer welfare, as “the categories of economic harms to consumer welfare from digital platforms are the standard ones: price, quality, and innovation” (Stigler [online], 2019, p. 57). At the same time, scientific papers on killer acquisitions do not relate to digital markets (e.g. Cunningham et al ., 2020) or papers on the axiological context of digital markets do not include references to killer acquisitions (e.g. Ezrachi, 2018). The present paper aims to analyse killer acquisitions from the perspective of the teleology of the EU merger control.

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