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The article discusses the decision made by the Portuguese Competition Authority (PCA) to prohibit Vodafone Portugal's acquisition of Nowo Communications. The PCA raised concerns about the high level of concentration in the telecommunications market, limited diversification of offerings, and the low customer mobility. The article also mentions the potential entry of a new player, Digi, which could disrupt the market. The PCA rejected the commitments proposed by Vodafone to address the competition concerns. The article compares this decision to a similar merger in Spain, where the European Commission approved the merger with certain remedies. The article concludes by mentioning the emergence of potential buyers for Nowo, including Media Capital and Digi. [Extracted from the article]

The rising concentration in digital platform markets raises the question to what extent traditional merger control is effective in these market environments. This contribution sheds a light on ways in which national competition authorities throughout the European Union and in the United Kingdom have adapted their analyses to the specific characteristics and complexities of digital markets. Through detailed case studies, I offer insights into ways in which horizontal, vertical and conglomerate theories of harm were made relevant to digital markets. At the same time, the case analysis shows areas in which competition law should further develop theories of harm in line with the insights into these market environments, particularly as regards ecosystem theories of harm. [ABSTRACT FROM AUTHOR]

This article discusses recent policy changes and legislative developments that have expanded the jurisdiction of the European Commission and national competition authorities. These changes have created uncertainty for businesses regarding whether their transactions will need to be reviewed. The article also highlights a significant development in the assessment of conglomerate mergers, particularly in the digital sector. The European Commission recently prohibited a conglomerate merger between Booking Holdings and eTraveli, based on an ecosystem theory of harm. This departure from previous guidelines and the lack of a clear economic and legal framework for such theories of harm raises concerns about predictability and legal certainty in merger control. The article emphasizes the need for a balanced approach that addresses the challenges of digital markets while providing a just and predictable framework for businesses. [Extracted from the article]

This article examines the EUMR’s purpose and ex-ante control against the background of ‘killer’ or ‘zombie’ acquisitions that evaded scrutiny by falling below merger control thresholds, while other concentrations were permitted due to debatable market definitions or inadequate theories of harm. Recognizing these shortcomings, the article discusses ex-post control following Towercast and Continental Can. It submits that the conditionality introduced in these judgments constitutes (1) an effort by the CJEU to limit ex-post merger control, (2) an ultra vires restriction on the application of Art 102 TFEU, or (3) a de facto acquisition ban for bottleneck holders and ecosystem orchestrators. [ABSTRACT FROM AUTHOR]

The EU Merger Regulation (EUMR) provides the European Commission with exclusive jurisdiction to assess mergers, acquisitions and full-function joint ventures with an EU dimension on the basis of turnover-based thresholds. The EUMR also contains corrective mechanisms allowing the Commission, under certain circumstances, to review smaller transactions. Until recently, these corrective measures have not been frequently applied but the picture is changing. The Commission believes that market developments (particularly in digital and pharma markets) are resulting in more acquisitions of companies that play or may play a significant competitive role in the EU despite generating little or no turnover. Similar considerations may apply to companies with valuable assets, intellectual property rights, data or infrastructure. This article analyses the development in the Commission's guidance instruments which look to give merging parties a sense of the circumstances in which smaller deals may be referred by Member States to the Commission for EUMR assessment (mindful though that these developments may yet be checked by the EU's highest court in the light of Advocate General Emiliou's recent opinion on the subject - matter). Legislation has also been evolving at the Member State level (e.g., recently in Ireland) to allow national competition authorities to review sub-threshold deals. This article also provides a comparison of the EU system with certain other non-EU 'call-in' systems and which reflects that merging parties have an increasingly complex merger control picture to navigate in 2024 and beyond before they can safely implement deals (such as in digital and pharma sectors). [ABSTRACT FROM AUTHOR]

This paper not only discusses the issue of the approach used, the issue of ex-post and ex-ante merger control regulation usage, issues of conflict of norms, overlapping legal rules, and the existence of legal vacuum which complicates the enforcement of rules regarding merger control in Indonesia. The legal issues examined in this paper concern the characteristics of merger control based on the ratio decidendi of KPPU decisions during the 20 years of enforcing business competition law in Indonesia and the ius constituendum of the ex-ante and ex-post approach. This research is based on normative legal research using a statute approach, conceptual approach, case approach, and comparative approach method. These methods lead to the conclusion of the research, which is, that in the past 20 years, Indonesia has experienced a change in the ex-post merger control approach, resulting in partiality in the articles applied that are not entirely used in KPPU decisions. Furthermore, the idealized rules (ius constituendum) on the control of mergers in Indonesia, outlined in Law No. 5 of 1999, will be examined based on the principles and objectives of competition law enforcement in the country.

This paper considers the role that innovation plays in EU merger control analysis, and seeks to integrate perspectives highlighted by the philosophical literature on the so-called ‘direction of innovation’ in order to critically assess the impact of market concentration on the diversity of innovation and its ability to address larger normative questions and challenges, such as the transition to more sustainable economies. While normative goals other than competition are not an inherent part of merger control, this paper argues that in concentrated markets, ignoring such questions can play into the hands of the powerful merging entities, allowing them to further determine the direction of innovation to best serve their interests and business models rather than public interests. This is illustrated by critically discussing the merger between Bayer and Monsanto as an example.

Competition authorities worldwide are increasingly inclined to review and challenge mergers. They are using an ever-wider range of tools to claim jurisdiction over transactions that traditionally fell outside their authority (such as those that fell below the corresponding thresholds). They base this new approach on a broader analysis of criteria that goes beyond what were considered the boundaries of competition law. In this context, the substantive assessment of mergers is also evolving, with competition authorities taking into account factors such as sustainability, employment, data/digital markets issues and innovation, and weighing them up against predicted efficiencies to determine a merger's benefits and risks. In addition, commitments for clearance are increasingly being used to address non-traditional concerns. [ABSTRACT FROM AUTHOR]

This paper not only discusses the issue of the approach used, the issue of ex-post and ex-ante merger control regulation usage, issues of conflict of norms, overlapping legal rules, and the existence of legal vacuum which complicates the enforcement of rules regarding merger control in Indonesia. The legal issues examined in this paper concern the characteristics of merger control based on the ratio decidendi of KPPU decisions during the 20 years of enforcing business competition law in Indonesia and the ius constituendum of the ex-ante and ex-post approach. This research is based on normative legal research using a statute approach, conceptual approach, case approach, and comparative approach method. These methods lead to the conclusion of the research, which is, that in the past 20 years, Indonesia has experienced a change in the ex-post merger control approach, resulting in partiality in the articles applied that are not entirely used in KPPU decisions. Furthermore, the idealized rules (ius constituendum) on the control of mergers in Indonesia, outlined in Law No. 5 of 1999, will be examined based on the principles and objectives of competition law enforcement in the country. [ABSTRACT FROM AUTHOR]

The article discusses the application of two regulatory frameworks of the European Union to Chinese investments in the energy sector: merger control focused on the protection of market competition and foreign investment control based on the protection of security and public order. First, it analyzes the application of the EU-wide merger control to Chinese mergers and acquisitions with a particular focus on the role of state-owned enterprises (SOEs) as primary actors in the implementation of China's industrial policies. Second, it discusses the evolution of the EU investment control framework aimed at addressing the security risks associated with foreign direct investment (FDI) in the European energy infrastructure and the acquisition of the associated critical technologies. [ABSTRACT FROM AUTHOR]

Annotation of the Judgment of the Court of Justice (Second Chamber) of 16 March 2023 in Case C‑449/21 Towercast [ABSTRACT FROM AUTHOR]

This article examines the EUMR’s purpose and ex-ante control against the background of ‘killer’ or ‘zombie’ acquisitions that evaded scrutiny by falling below merger control thresholds, while other concentrations were permitted due to debatable market definitions or inadequate theories of harm. Recognizing these shortcomings, the article discusses ex-post control following Towercast and Continental Can. It submits that the conditionality introduced in these judgments constitutes (1) an effort by the CJEU to limit ex-post merger control, (2) an ultra vires restriction on the application of Art 102 TFEU, or (3) a de facto acquisition ban for bottleneck holders and ecosystem orchestrators. [ABSTRACT FROM AUTHOR]

Copyright of Yearbook of Antitrust & Regulatory Studies is the property of University of Warsaw and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

In the UK, following the enactment of the Communications Act 2003, amending the Enterprise Act 2002, the assessment of mergers involving broadcaster and/or newspaper enterprises is subject to – alongside the regular competition standard under the 'substantial lessening of competition' (SLC) test – a public interest standard. Under this standard, certain media mergers need to be assessed pursuant to the following considerations: media plurality, broadcasting standard objectives and free expression of opinion grounds. While the statute defines these terms ambiguously, it does provide guidance to the Secretary of State, the competition authority and the courts to decide how the statute is intended to be applied consistently. The paper will analyse how the media plurality test has been applied, some of the considerations of the CMA and OFCOM, and in doing so it will touch on the discretion of the decision making stakeholders. [ABSTRACT FROM AUTHOR]

This study explores how competition authorities in three jurisdictions—South Africa, Australia, and the United Kingdom—have responded to proposed corporate mergers and acquisitions involving online intermediation platforms that provide automobile marketplaces. The article examines the notified (and ultimately prohibited) MIH eCommerce Holdings acquisition of WeBuyCars in South Africa; the notified (and authorised) Gumtree acquisition of Cox Media in Australia; and, in the UK, the notified (and authorised) eBay acquisition of Motors.co.uk. The author evaluates the competition considerations that came to the fore in each of these three cases and, based on these determinations, the competition authorities’ decisions. The article then highlights some of the complexities that digital online intermediation platforms pose for competition authorities, and some of the possible ways in which the complexities can be managed.

The Illumina/Grail and Towercast rulings of July 2022 and March 2023 create new avenues for the control of concentrations below the European Union (EU) and national turnover thresholds. These new avenues concern (i) a referral to the European Commission by a national competition authority (NCA) and (ii) a review under the EU provision on abuse of dominance by an NCA. In both cases, the rationale seems predominantly based on the need to have effective competition law oversight on the so-called killer acquisitions of emerging competitors and undertakings that aim to extend their dominance by acquiring existing (small but) effective or particularly innovative competitors. The obvious drawback of increasing possibilities of the ex-post merger control is that this comes at a cost to legal certainty and the one-stop-shop principle that has characterized the EU merger control so far. Especially the Towercast judgment calls into question the structure, purpose, and merits of merger control in the EU over the past 35 years. Looking forward, much will depend on how the NCAs and the European Commission will use their new-found powers; some reorganization of merger vetting procedures at the national level may be required. However, it appears likely that the system of merger control in the EU will come to focus more sharply on mergers that raise serious competitive concerns and less on providing a system of comprehensive administrative review, based mainly on size. This may also provide opportunities to rationalize the application of public enforcement capacity. [ABSTRACT FROM AUTHOR]

The Anti-Monopoly Law (AML) in China allows the responsible authority for merger control to consider not only the competition interest but also other public interest reasons when it reviews a takeover or merger. Where the responsible authority considers that the benefits of a takeover or merger to the public interest outweigh the harms to competition, it may 'exempt' the transaction. This 'public interest exemption' has never been formally applied since the introduction of the law in 2008. One explanation for this can be found in the ambiguity of the law: there are no legal provisions that clarify the public interest considerations. A second explanation is that China did not establish a separate review procedure for this public interest exemption. In practice, some approval decisions made by the enforcement authority led to confusion, as it was unclear whether the transactions were 'exempted' for public interest reasons or for industrial policies. This article reflects on the role of the public interest exemption in China. By drawing lessons from the past and examining the public interest exemption regime in Germany, it aims to provide suggestions for future reforms, against the background of the promulgation of the Amendment to the AML in 2022. [ABSTRACT FROM AUTHOR]

This article examines whether sustainability concerns play and should play any role in EU merger control. While competition authorities have commenced exploring pathways to excuse prima facie anticompetitive mergers on sustainability grounds, little progress has been made in setting out whether and under which conditions mergers that adversely affect sustainability parameters can be found anticompetitive. Under the EU merger control regime, the adverse effects of mergers on sustainability are only cognizable as innovation-related issues, as recently evidenced in Dow/Dupont and Bayer/Monsanto. In these cases, the Commission pioneered a novel approach aimed at predicting the impact of a merger not only on prices but also on innovation competition. This theory of harm, although a welcome improvement to the current framework of merger analysis, fails to accommodate all competition-relevant sustainability concerns because of its exclusive focus on innovation capabilities, efforts, and output. On this basis, we argue that innovation competition should not be understood only as an output-maximizing device but also as a polycentric process under which independent decision-makers pursue various innovation paths. Such an approach gives prominence to the diversity, quality, and direction of innovation and constitutes an alternative to the predominant output-centred understanding of innovation. To operationalize this notion of innovation competition as a polycentric process we explore four pathways: adopting quality-related and sustainability-sensitive innovation metrics; using indicators of industry-wide structural effects; endorsing a structural filter; and protecting nascent competitors. Adding such an approach to the existing analytical framework would, arguably, enable the Commission to deal with all sustainability concerns related to the notion of innovation competition. [ABSTRACT FROM AUTHOR]

The Norwegian Supreme Court recently overturned a decision by the Competition Appeals Tribunal to block an acquisition in the digital marketplace for auction-based car sales. The acquisition, which involved Schibsted and Nettbil, fell below the merger thresholds and was the first time the Competition Authority had prohibited a concluded transaction. The Court disagreed with the Competition Authority's findings that the acquisition would reduce competition and negatively affect consumers, stating that there was no evidence of increased prices or decreased quality. The judgment clarified important aspects of merger control, including market definition and the assessment of internal documents. [Extracted from the article]

Mergers between previously contending firms are a permanent challenge for policymaking as they potentially harm competition. The core incentive to merge is the prospect of higher joint profits of the previously independent firms after the merger. We discuss and compare the core assumptions of Horn and Wolinsky (1988) and von Ungern-Sternberg (1996) that lead to contrary results regarding the attractiveness of horizontal mergers of downstream firms in a 1:2 setting leading to a monopolized 1:1 setting. While the latter finds a merger beneficial for the downstream firms, it harms their joint profit, according to Horn & Wolinsky. We theoretically apply both models to the two settings. We also present extensive sample calculations that quantitatively confirm the two papers' core insights. Discussing and contextualizing the results, we provide a comprehensive overview of horizontal mergers in the downstream part of vertical structures with bargaining over linear input prices. Due to continuing relevance of horizontal mergers for competition policy and, in particular, in light of the consolidation phase in tech start-ups, the topic is of enduring relevance in policymaking. [ABSTRACT FROM AUTHOR]

The aim of this article is to provide a short overview of the 2023 US Draft Merger Guidelines and some interpretations of its impact on merger control practices. The US practice shows that merger control standards have been changed several times, in accordance with the need to increasingly consider economic efficiencies and the consequences of making wrong decisions, which could reduce innovation and other behaviours of undertakings that lead to an increase in economic efficiency and improve competition. Due to the fact that guidelines can influence how judges evaluate challenges to mergers, it remains to be seen how the final guidelines will enable the courts to understand and support the agencies' views on antitrust enforcement. [ABSTRACT FROM AUTHOR]

Copyright of Ruch Prawniczy, Ekonomiczny i Socjologiczny (0035-9629) is the property of Adam Mickiewicz University and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Background: Merger control is an increasingly necessary and important policy mechanism, particularly in the telecommunications sector. Given that a Rogers--Shaw merger could still occur, this article explores and evaluates various approaches to merger review and control. Analysis: By comparing the Competition Bureau's approach to merger control in Canada with merger control strategies employed by competition authorities in Europe, this article reveals limitations in Canada's merger control process and the Competition Act. Conclusions and implications: The Competition Bureau's treatment of structural merger control remedies in conjunction with legislation that prioritizes economic effciencies over the needs of consumers, and a lack of public interest considerations, drastically limits the scope of the Competition Bureau's capacity to regulate the telecommunications industry appropriately. This article provides recommendations that would better equip competition regulators in Canada. [ABSTRACT FROM AUTHOR]

The aim of this article is to provide a short overview of the 2023 US Draft Merger Guidelines and some interpretations of its impact on merger control practices. The US practice shows that merger control standards have been changed several times, in accordance with the need to increasingly consider economic efficiencies and the consequences of making wrong decisions, which could reduce innovation and other behaviours of undertakings that lead to an increase in economic efficiency and improve competition. Due to the fact that guidelines can influence how judges evaluate challenges to mergers, it remains to be seen how the final guidelines will enable the courts to understand and support the agencies' views on antitrust enforcement.

The CK Telecoms judgement shed the light on the difficulties to apprehend unilateral effects, aka insufficient individual rivalry, in the context of a merger. This paper examines the overall European competition law framework applicable to these effects. After underlining the difficulties related to their apprehension by the competition authorities, the adequacy of the solely ex ante-based European competition regime will be assessed as well as the use of the New Competition Tool as an option to solve the identified drawbacks. [ABSTRACT FROM AUTHOR]

Using data on 4784 completed mergers and acquisitions in China announced between 2002 and 2016, we find that the adoption of the Chinese Anti-Monopoly Law substantially reduces the shareholder returns for horizontal acquisitions. Based on our findings on reduced post-merger sales and returns, we argue that a loss of market power drives this negative relationship. We also find that the acquiring firms' cost efficiency does not significantly change as a result of the combination, suggesting that the decline in shareholders' wealth after horizontal mergers is not because of reduced cost efficiency. Furthermore, we conduct a series of robustness checks to examine how adopting antitrust law decreases the wealth of producing firms' shareholders. Overall, our results indicate that the government must implement stricter guidelines for antitrust policies to protect consumer welfare. [ABSTRACT FROM AUTHOR]

Merger control impacts the type of merger projects that are submitted, as well as the information provided by the merging parties upon assessment. In this paper, we consider the outcomes in terms of selection of merger types and evidence provision of alternative timings for merger review, pre‐ or postconsummation of the merger. We show that the selection effect induced by the ex post merger review is welfare‐improving due to the deterrence of the most anticompetitive merger projects. In contrast, the welfare impact of evidence provision under ex post assessment is ambiguous. Balancing these two effects makes possible the welfare comparison between the ex ante and the ex post merger policy enforcement. [ABSTRACT FROM AUTHOR]

The year 2021 was the first remarkable year of Chinese anti-monopoly law enforcement in the digital economy. Against the macro backdrop of strengthening anti-monopoly and preventing the disorderly expansion of capital, China has closed high-profile cases and enacted relevant guiding documents, implying that competition in the digital economy is undergoing a revolution in China. However, with the strengthening anti-monopoly enforcement in the digital economy, China has also been confronted with new challenges. For example, how to make sure that the interconnectivity between platforms and data interoperability do not interfere with data security, personal privacy, and consumers' legitimate rights and interests? How to balance the curbing of almost unconstrained digital ecosystems and the enhancement of economic efficiency? With the emergence of digital giants, profound changes are taking place in the competitive relationships between various market participants, while the advantages and disadvantages of capital growth have become increasingly prominent. We propose competition authorities worldwide to learn from and cooperate with each other to solve monopolistic problems in the digital economy, considering it is a global matter. [ABSTRACT FROM AUTHOR]

Despite a large volume of studies examining the welfare impact of acquisitions, there are not many studies that model the welfare impact of acquiring new firms. This study offers a review of the literature and presents a framework for evaluating the welfare impact of the acquisition of new firms. Our results suggest that the acquisition of new firms is not necessarily welfare reducing as long as (1) the number of new firm entry is within a given range (i.e., not too many and not too few), (2) sufficient oligopolistic interdependence is present (output response from firms not involved in the acquisition or outsider firms), and (3) there are cost symmetries. The key factor that makes the privately beneficial acquisition welfare enhancing is the profit opportunity for outsider firms and oligopolistic interdependence, given the restriction on the number of new firms. Our findings imply that, under the given conditions, start-up acquisitions may not need to be restricted by merger control policies. Our literature review and model highlight the need for regulators to pay attention to the specific number of new firms that enter a given market when there are no cost synergies. [ABSTRACT FROM AUTHOR]

This article highlights some of the key challenges for the Brazilian merger control regime in dealing with mergers involving digital platform ecosystems (DPEs). After a quick introduction to DPEs, we illustrate how their market power may be strengthened through conglomerate mergers, and yet these concerns remain largely unaddressed in the current landscape for merger control in Brazil. The article is divided in four sections. First, we introduce the reader to the framework for merger control in Brazil. Second, we identify the possible theories of harm related to conglomerate merger, and elaborate on the way in which their application may be affected by the context of DPEs. Third, we conduct a review of previous mergers involving DPEs in Brazil, aiming to identify the theories of harm employed (and those that could have been explored) in each case. Fourth and finally, we summarize and results and suggest adaptation to merger control in Brazil, advancing proposals for a more consistent and predictable analysis. [ABSTRACT FROM AUTHOR]

The Digital Markets Act (DMA) focuses on several ex ante behavioural obligations on entities that have been designated as so-called gatekeepers. However, the DMA also introduces certain elements that have the potential to significantly impact the established merger control system within the EU. It includes two new relevant instruments for the European Commission aiming at the regulation of gatekeepers’ ability to grow externally by way of mergers and acquisitions. One of the obligations imposed by the DMA is the obligation on gatekeepers to inform the Commission of any intended concentrations irrespective of whether they are notifiable under EU merger laws. Secondly, the DMA seeks to implement a link between the behavioural control of gatekeepers and their transactional activities by authorizing the Commission to prohibit the gatekeeper, for a limited time, from conducting any more acquisitions in the specific sector that is affected by so-called systemic non-compliance with the obligations under the DMA. This article explores the impact of these two types of provisions and calls for a cautious approach, striking the balance between the interests of undistorted competition, innovation and the dynamic impact that M&A activity may bring to these and other relevant factors. [ABSTRACT FROM AUTHOR]

The UK Competition & Markets Authority has closely scrutinised M& A deals in the FinTech sector in recent years. This article provides an overview of the UK regulatory framework and key themes regarding the approach by regulators to FinTech M& A deals. It concludes by reflecting on the policy decisions which regulators will need to make as activity in this sector increases. [ABSTRACT FROM AUTHOR]

The internationally dominant compulsory notification mechanism under merger control aims to remedy anti-competitive harm by blocking or conditionally approving mergers ex ante. However, such a mechanism is not free from disadvantages. As an alternative, the voluntary notification mechanism, though superficially producing fewer deterrence effects, is in effect no worse than the compulsory mechanism (CM), given its significantly less implementation costs. In order to examine which mechanism suits a given jurisdiction, it is necessary to evaluate the costs and benefits for the implementation of such a mechanism. The enforcement of the CM in China can be argued to present insufficient benefits and high costs, due to the extreme low proportion of blocked and conditional approved cases, as well as the unsatisfactory deterrence effect, and the significant constraints by implementing resources, in particular human capital. Such a particular situation in China implies that the voluntary mechanism (VM) might be advisable to be a more feasible option for young competition jurisdictions. [ABSTRACT FROM AUTHOR]

For more than 30 years, EU institutions and Member States have been engaged in a dialogue on what measures might be considered appropriate to protect media pluralism. With the increasing globalization of digital services, national legislatures have increasingly recognized the need to actively shape the media market by controlling mergers taking place within it. The aim of this article is to discuss the PKN Orlen/Polska Press case and to explain the role of EU competition authorities in protecting media pluralism. The analysis also seeks to determine whether – and based on which competencies – the EU should counter systemic threats to media independence in Member States. The Polish experience may also be helpful in view of work currently underway on the new Media Freedom Act – EU legislation intended to counteract the growing monopolization of media and ensure its protection as a central pillar of democracy. [ABSTRACT FROM AUTHOR]

This article explores the interplay between the EU FDI Regulation and the EU Merger Regulation; and highlights how the lack of substantive and procedural convergence between the two regimes has exacerbated the challenges of managing the growing number of parallel regulatory reviews. The EU FDI Regulation created a mechanism for coordinating national screening of inward investments by foreign buyers. The adoption of the Regulation is part of a wider policy shift stemming from calls to preserve the EU's industrial base, which led to the launch of the EU Industrial Strategy. These developments have added a layer of complexity to the EU regulatory landscape: M&A transactions may now be subject to multiple FDI filings just as they may qualify for merger control review in several jurisdictions. This article focuses in particular on the interplay between the 'legitimate interest' exception under the EU Merger Regulation and FDI controls. [ABSTRACT FROM AUTHOR]

First, the failing firm doctrine does not envisage that the failing firm would have to remain on the market. Rarity and special nature of the failing firm defence arises from the fact that in extreme cases it would allow for something that merger control rules have arguably been drafted - to avoid merger to monopoly. Estonia • Failing Firm Defence: There Is a First Time for Everything Keywords: failing firm defence; merger control; Phase II investigation; remedies EN failing firm defence merger control Phase II investigation remedies 244 247 4 10/07/22 20220701 NES 220701 One of the most elusive concepts in the world of merger control has been the I failing firm defence i . [Extracted from the article]

Conglomerate merger control went out of fashion in the United States and the European Union several decades ago. Both jurisdictions embraced the premise that nonhorizontal mergers should normally be considered benign because exclusionary theories of harm are economically implausible, and nonhorizontal mergers are almost always certain to result in significant efficiency effects that the merged entity can be expected to pass on to consumers. Conglomerate effects analysis subsequently all but disappeared from the enforcement practice. However, the emergence of a handful of powerful digital platforms with vast global ecosystems of interconnected services is currently causing competition agencies a great deal of concern. Their growth has not been entirely internal. Collectively, Alphabet, Meta, Apple, Amazon, and Apple have acquired over eight hundred companies. Many of their targets were innovative start-ups operating in complementary markets. This contribution compares and critically assesses how this development has affected the U.S., EU, and U.K. competition agencies' approach to conglomerate merger control. It finds that, as a reaction to the advent of Big Tech, conglomerate effects analysis has made a significant comeback in EU merger control. While the U.S. and U.K. authorities have not yet intervened against any conglomerate acquisitions in practice, evidence suggests that they are also more open to nonhorizontal theories of harm again. [ABSTRACT FROM AUTHOR]