EU ANTITRUST: HOT TOPICS & NEXT STEPS
EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022
supplemented with another criterion, more suitable for digital markets. It seems that the Commission looks at mergers from the consumer welfare perspective, but probably there will be more and more deontological references, like in the recent Case No. M.9409. The DMA seems to introduce a deontological approach: a subjective criterion, without any analysis of the effects of the gatekeeper’s behaviour. Apart from the controversy related to the DMA and the replacement of loopholes in competition law with sector regulation, since such regulation has already been created, it is a pity that only the notification duties of gatekeepers related to killer acquisitions have been introduced. 4. Conclusion It is uncertain whether the current effect-based approach can effectively prevent killer acquisitions on digital markets. However, preventing such killer acquisitions would be desirable on the basis of ordoliberal axiology. An insufficient level of “implementation” of ordoliberal thought under the current EU merger law may therefore have a negative impact on the structure of digital markets. A free market economy is not about competitors buying themselves out, but about competing with each other. References:  Akman, P. (2014). The Role of Freedom in EU Competition Law. Legal Studies , Vol. 34 No. 2, pp. 183-–213.  Albæk1, S. (2013). Consumer welfare in EU competition policy. In: Heide-Jor gensen C., Bergqvist Ch., Neergaard U., Troels Poulsen S. (eds). Aims and Values in Competition Law . Copenhagen: DJOF Publishing Copenhagen, pp. 67–88.  Andriychuk, O. (2012). The Dialectics of Competition Law: Sketching the Or do-Austrian Approach to Antitrust. World Competition Law and Economics Review , Vol. 36 No 3, pp. 355–384.  Benöhr I., Micklitz, H.-W. (2018). Consumer protection and human rights. In: Howells G., et al . (eds). The Handbook of Research on International Consumer Law, Second Edition . London: Edward Elgar Publishing Limited, pp. 16–34.  Caffarra C., Crawford, G., Valletti, T. (2020). “How Tech Rolls”: Potential Competition and “Reverse” Killer Acquisitions [online]. [cit. 2022-01-05]. Available at: https://vox eu.org/content/how-tech-rolls-potential-competition-and-reverse-killer-acquisitions  Communication from the Commission. Commission Guidance on the application of the referral mechanism set out in Article 22 of the Merger Regulation to certain categories of cases. OJ C 113, 31.3.2021, p. 1–6 .
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