Innovation competition in EU merger review [Archived]
Produced in partnership with Jay Modrall of Norton Rose Fulbright LLP
Innovation competition in EU merger review [Archived]

The following Competition practice note Produced in partnership with Jay Modrall of Norton Rose Fulbright LLP provides comprehensive and up to date legal information covering:

  • Innovation competition in EU merger review [Archived]
  • Commission guidance on innovation competition
  • Innovation competition in Dow/DuPont
  • Standard of proof and relevant time period
  • Innovation competition and market structures
  • Assessment of innovation competition effects
  • Types of competitive harm
  • Efficiencies
  • Remedies
  • Common ownership
  • More...

ARCHIVED–this archived practice note reviews the approach adopted by the European Commission to assessing innovation competition in merger investigations and reflects the position at the date of publication (22 June 2018). It is not maintained.

Under the EU Merger Regulation, the European Commission must assess the effect on competition of mergers, acquisitions and joint ventures (concentrations) meeting the EU Merger Regulation’s jurisdictional thresholds. Where the Commission has serious doubts about whether a notified concentration will significantly impede effective competition, the Commission may open an in-depth (phase II) investigation and prohibit the concentration, unless the notifying party(ies) offer remedies that address the Commission’s concerns.

What constitutes a significant impediment to effective competition (SIEC) varies from case to case. While the Commission most often expresses concerns about anticipated price effects of notified transactions, recent decisions have focused attention on the Commission’s analysis of notified transactions’ potential to impede ‘innovation competition.’ The most complete explanation so far of how the Commission assesses the effect of notified concentrations’ on innovation competition is set out in the Commission’s March 2017 decision in Dow/DuPont (M.7932).

The Commission’s Dow/DuPont (M.7932) decision was very controversial. While the Commission insists it simply applied well-established principles to the facts of the case, critics have described the approach as an ‘innovative leap into the theoretical abyss’. In fact, while Commissioner Vestager highlighted the importance of innovation competition in

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