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

Claire Turgot

European Competition and Regulatory Law Review, Volume 5 (2021), Issue 2, Page 112 - 121

Large digital technology companies are suspected of engaging in a ‘killer acquisitions’ strategy whereby they acquire promising start-ups to eliminate potential future rivals or to integrate them into their own offerings, thereby cementing their dominance. Many of these transactions escape the scrutiny of competition authorities as they do not meet the notification thresholds. This has generated a growing sense of urgency about the need to amend the European Commission’s merger ‘toolbox’. However, an increasing reliance on non-traditional theories of harm may prevent consideration of the transaction’s substantial benefits for innovation and competition. This short contribution takes a critical look at current merger control and discusses the possibility of a more open approach to reviewing acquisitions in the digital space. Keywords: mergers, European Union, reform, online platforms, competition policy

Kiran S. Desai

European Competition and Regulatory Law Review, Volume 5 (2021), Issue 2, Page 149 - 155

Mateusz Brzeziński

European Competition and Regulatory Law Review, Volume 3 (2019), Issue 3, Page 280 - 293

The freedom of establishment gives the opportunity to do business in any European Union Member State. To facilitate and improve this possibility, the EU legislator has adopted rules on cross-border mergers. Despite the growing popularity of cross-border mergers, conducting this type of merger, especially if it concerns a larger number of companies from different jurisdictions, is not an easy or quick process. This may be due to the fact that there are many obstacles to cross-border mergers. Although a cross-border merger requires a lot of organisational efforts and overcoming of many hurdles, companies that have decided to consolidate in accordance with the described mechanism might confirm that the economic benefits that can be achieved as a result are worth it. Keywords: Cross-border Mergers, Companies, High-Tech, Procedure

Aaron L Nielson

European Competition and Regulatory Law Review, Volume 2 (2018), Issue 3, Page 156 - 165

Jurisdictions around the world have been converging on a common analytical framework for merger review. Because the circumstances of proposed mergers (or combinations) are often idiosyncratic, the standards that competition authorities apply are flexible, thus providing economists with discretion to perform individualized, merger-specific analysis. Jurisdictions thus have moved away from—or declined to adopt in the first place—bright-line rules in favour of open-ended standards. This shift away from bright-line rules, however, may create a paradox: the very discretion necessary to achieve right outcomes is the cause of wrong ones. Although open-ended standards allow competition authorities to better tailor their analysis, they also empower them to act for pretextual reasons, especially in contexts for which politicized decision-making is most tempting such as the ‘online world.’ Likewise, even when a competition authority’s analysis is not pretextual, discretionary standards may make it more difficult for it to effectively rebut allegations of pretext. Hence, although doing so may introduce more imprecision into merger analysis, greater reliance on bright-line rules might nonetheless be justified. Keywords: Mergers, Discretion, Bias