EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

current thresholds? Should the EUMR be updated in order to address this problem? What if killer acquisitions do not pose a significant threat to consumer welfare, but distort competition itself? Ordoliberalism, commonly perceived as the axiological basis of European competition law, provides a unique perspective of the EU competition policy, which should serve a multitude of purposes. According to Ordoliberals, the competitive process and the economic freedom are values in themselves and therefore should be protected by competition law. However, it can be observed that such an ordoliberal perspective on competition policy has been marginalised (especially since 2004, when a more economy-based approach was introduced in the process of modernising the EU competition law). Consumer welfare seems to be the core of the assessment of merger cases by the European Commission. Freedom to compete and consumer welfare seem to represent opposite approaches to competition law: deontological and consequentialist. The paper does not intend to analyse the details of this distinction. The paper does, however, intend to investigate whether the core values of these two approaches (freedom to compete and consumer welfare) are present, and if so, to what extent, in the decisions of the EC and the judgments of the Court and the Court of Justice of the European Union (the “CJEU”) related to these decisions, with the scope limited to concentrations between undertakings. The results may indicate whether the Commission “automatically” applies the EUMR rules based on the threshold, or whether it does include references to the teleological perspective of the EU merger control. This approach might influence the (lack of ) prevention of killer acquisitions on digital markets. The effects of killer acquisitions on digital markets are not unambiguous. For example, reversekiller acquisitions arenot necessarilydetrimental to innovation; combining the best two development processes in order to bring a more innovative product onto the market faster could involve discontinuing one of the pre-merger products (Yun, 2020, p. 669). Therefore, a pure economic analysis consistent with consequentialist thought may justify non-intervention in such killer acquisitions. At the same time, Ordoliberal thought would lead to a different perception of killer acquisitions, which enable GAFAM to become digital conglomerates. Presumably, a strategy of GAFAM companies to acquire start-ups (if identified) is to “kill” (future / potential) competition “and/or extend their domination by acquiring complementary services in neighbouring markets resulting in marginalisation of rivals and higher barriers to entry” (Lécuyer, 2020). 2.2 Methodology The methodology of the paper is based on the formal-dogmatic method, the historical method and a case study.

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