Pernille Edh Hasselgård

European Competition and Regulatory Law Review, Volume 6 (2022), Issue 2, Page 147 - 153

Björn Lundqvist

European Competition and Regulatory Law Review, Volume 5 (2021), Issue 3, Page 186 - 199

The article aims to address the problem of so-called killer acquisitions broadly, extending also to strategic alliances and other forms of collaborations. We find that ‘killer situations’ can appear in all forms of collaborations that imply a change of control of research results. We therefore conclude in this part I that for the Competition Authority to only focus on killer acquisitions in the form of mergers can be counterproductive. Both mergers and strategic alliances in the pharmaceutical industry would instead benefit from a more intense competition law scrutiny, and in part II we develop what is needed to intensify the competition law scrutiny of accquisitions and collaborations. Keywords: pharmaceutical, mergers, antitrust, killer acquisitions

Björn Lundqvist

European Competition and Regulatory Law Review, Volume 5 (2021), Issue 4, Page 344 - 363

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

Nicholas Levy, Andris Rimsa, Bianca Buzatu

European Competition and Regulatory Law Review, Volume 5 (2021), Issue 4, Page 364 - 379

In March 2021, in an effort to secure jurisdiction over transactions that might otherwise escape review under EU and national merger control rules, the European Commission (EC) published guidance encouraging Member State competition authorities to ask the EC to examine potentially anti-competitive concentrations that fall below national merger control thresholds. To date, in a decision that is under appeal to the General Court, the EC’s new guidance has been applied only once to refer the Illumina/Grail transaction to the EC. More generally, the EC’s new guidance has proven controversial, revealing divergences between certain Member State antitrust agencies and the EC. Keywords: merger notification thresholds, EU Merger Regulation, killer acquisitions, interagency coordination