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Killer Acquisitions and Other Forms of Anticompetitive Collaborations (Part II):

A Proposal for a New Notification System

Björn Lundqvist


Keywords: mergers, antitrust, killer acquisitions

In two consecutive articles, of which this is the second one, I analyse so-called ‘killer acquisitions’ and other collaborations detrimental to competition. In this article, I have analysed the merger rules and whether they can identify and capture the problematic cases identified in Part I. After concluding that this is not the case, I present a proposal that I believe would benefit competition and innovation in the pharmaceutical industry. I suggest that certain firms in the pharmaceutical sector should be obliged to notify collaborations that imply change of control over research, research assets or research results, and that the focus under the merger rules should be on innovation and innovation results. A notification system should thus be put into place also for strategic alliances including license agreements and R&D collaborations in which the control over promising research or research capabilities is transferred to a large pharmaceutical firm. Such transfer is conducted through the covenants and restrictions of an R&D start-up and its key employees, even though there are no formal change of control of the start-up as such. I furthermore suggest that that ancillary agreements to such collaborations including shareholding agreements and option programmes that imply that leading researchers are locked-in by explicit or implicit non-compete and other forms of covenants should be scrutinised in the merger review.
Keywords: mergers, antitrust, killer acquisitions

Björn Lundqvist, Associate Professor, Faculty of Law, Stockholm University, Leading Researcher at the HSE-Skolkovo Institute of Law and Development. I am very grateful for the input on an earlier version of this paper given by researchers at the HSE-Skolkovo Institute for Law and Development, especially Alexey Ivanov, Olga Gavrilova, Anna Pozdnyakova and Daria Kotova. I am appointed as expert for the European Commission in reference to the update of the R&D block exemption. The opinions stated herein are my own. For correspondence: <>.


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