EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

The research is based on the assumption that the insufficient level of prevention of killer acquisitions is contrary to the teleology of EU law, in particular the EU competition law. In this paper, the notion of teleology with regard to the competition policy is understood in accordance with Kantian thought (see: Kant, 2000): it postulates (self-)purposiveness of undistorted competition instead of a consequentialist approach arguing for the consumer welfare lens alone. 1.3 Content of the paper The paper begins with a brief introduction of the axiological foundations of European competition law, such as consumer well-being and consumer welfare, effective competition structure, efficiencies and innovation, fairness, economic freedom and market integration. These values are put in perspective of the EU merger control law. Following this, the paper considers the significance of the multitude of goals and values that European competition law seeks in the policy towards killer acquisitions. The paper explores inter alia the tension between the numerous goals of the EU competition law (consistent with ordoliberalism) and a pure economic analysis of the effects of killer acquisitions. These two opposing thoughts are referred to in the paper as deontological and consequentialist. With regard to killer acquisitions, there is a need to re-open the debate as to whether ordoliberal ideas are shaping and/or should continue to shape the future of the EU merger control policy. 2.1 Problem Formulation The current EU legal system seems to be inadequate with regard to killer acquisitions. The EU merger control is based on the thresholds criterion, which is not adapted to transactions with start-ups, i.e. undertakings with a minor market share, but with an immense potential for growth. For example, when Facebook bought Instagram in 2012, it had 30 million monthly active users. However, in 2021 it exceeded 1 billion users. 2. Problem Formulation and Methodology

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