EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

However, the remarks about freedom to compete in the two decisions were made only in the context of the contractual relationship between undertakings (to confirm an undertaking’s freedom to compete). Two cases including the keyword “economic freedom” were found. In these decisions, the Commission considered whether the imposition of the financial and investment requirements significantly limits an undertaking’s economic freedom, “thereby creating an obstacle to the exercise of the rights provided for by the EC rules on the free movement of capital and the freedom of establishment” (Case No. M.4197 – E.ON / Endesa , para. 65). No decisions were identified on the basis of the keyword “freedomof competition”. Although recent studies relating to all competition decisions of the Commission note the post-2013 rise in such decisions that reference ordoliberal goals (Stylianou, Iacovides, 2019, p. 32), it seems that the Commission’s concentration control practice lacks such ordoliberal perspective. The Commission hardly ever referred to freedom to compete, freedom of competition and economic freedom in its merger control decisions. 3.3 Impact on policy towards killer acquisitions on digital markets Not only does the merger control legal system based on thresholds seem to be outdated with regard to digital markets, but also any references to the teleology in the Commission’s decision-making practice in the field of merger control are very rare. Even when such references exist, competition as a value in itself is underestimated and the parameter on the basis of which the Commission assesses the transaction is consumer welfare. It leads to a philosophically inconsistent system, creating “a paradoxical situation where one economic phenomenon (i.e. competition) is semantically covered by the other (welfare)” (Andriychuk, 2012, p. 355). The statement that not only consumer welfare, but also competition itself and freedom to compete should be protected, could have an impact on the competition law approach towards killer acquisitions. Such an approach would encourage protection of the competition process, which also includes the structure of competition (on numerous relevant markets, digital conglomerates dominate), while the consumer welfare objective would mean focusing on the outcome of the competition process as the ultimate criterion. While choosing the right merger control system, “it is critical to take into account the important role that exit via acquisition plays in providing incentives for venture capital (VC) investment and entrepreneurship, and more broadly in driving dynamic innovation” (Reilly [online], 2021). However, if a deontological competition policy is adopted, other values, such as competition structure and freedom to compete, may prevail. Then there might be no place for killer acquisitions and, for instance, the threshold criterion from the EUMR would be

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