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EU merger control in online platforms: unilateral competitive effects

April 27, 2022April 27, 2022
EU merger control in online platforms: unilateral competitive effects

ABBREVIATIONS

CJEU – Court of Justice of the European Union

DM – Digital Market

DMA – Digital Markets Act

EC – European Commission

EEA – European Economic Area

EU – European Union

EUMR – European Union Merger Regulation – Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings [2002] OJ L 24

TEU – Treaty on European Union

TFEU – Treaty on the Functioning of the European Union

 1. Introduction

1.1. Background

The Internet and digitization at the turn of the XXI century have changed the old offline business paradigm, resulting in an explosion of online platform enterprises.[1] Furthermore, the worldwide coronavirus (COVID-19) pandemic has shown how society and the economy are becoming increasingly reliant on the digital economy.[2]

An increasing number of mergers are taking place in online platforms, which are envisaged by the expansion of the role of start-ups and the increasing importance of digital platforms in everyday life. The efficiency of the present merger control framework in monitoring online platform-involved mergers is called into doubt, and issues on how to proceed with merger review in practice are posed.[3]

This situation provides a basis for studying merger control within online platforms, which covers a very wide range of relations. This paper focuses on the unilateral effects of horizontal mergers within online platforms. The reason for studying unilateral effects is their new nature in online platforms which requires special attention as part of the increase in the number of start-ups and various forms of activity on online platforms. Considering that the Commission is working on the provisions of the DMA and its adoption is envisaged soon, it is important to note its provisions regarding gatekeepers and their obligations under this Act.

Another significant problem of the new period after the transition to digitalization is the thresholds established by the EUMR and theories of harm, which are increasingly becoming an agenda in the meetings of the Commission. While some consider it necessary to change thresholds and establish new priorities to identify violations of healthy competition, others do not agree with such provisions and argue the importance of applying existing provisions in relation to DM participants. This work provides for a partial study of theories of harm and the possibility of changing thresholds which depends on many factors, including the formation of the market itself in online platforms.

1.2. Purpose and Aim

The purpose of this paper is to research EU merger control from different perspectives specifically focusing on unilateral effects of horizontal mergers in online platforms. It is aimed at understanding the concept and role of merger control and its regulation within DM, a practical approach to the current rising role of start-ups and their acquisitions by leading companies within online platforms.

The following research questions will be answered in order to achieve the purpose of this paper:

  1. What is the EU merger control? How is it regulated within the EU digital market?
  2. What is an online platform? How can network effects affect merger control?
  3. What are the main provisions of the proposed DMA concerning merger control?
  4. What are unilateral effects as a different type of competition harm and their role in online platforms?
  5. What are the practicalities and which challenges can be mentioned in regards to merger control within online platforms?

1.3. Delimitations

Since the research field is very broad the following delimitations have to be made.

The focus of this work is EU merger control and its unilateral effects while analysing it from the perspective of DM. Under this focus, it can be narrowed down specifically to the concept of merger control, online platforms and unilateral effects, an overview of DMA and gatekeepers’ role within this Act, a case-law based approach to mergers in online platforms and current challenges by merger control in DM.

This work is limited to the extent of the merger control regulation within the EU and the conceptual approach. This thesis does not discuss the provisions of DMA, merger control procedure, and other types of mergers and generally by not focus on horizontal, except for its unilateral effects, vertical and conglomerate mergers.

1.4. Methodology and Material

The main research method used in this thesis is descriptive. Descriptive research, as the name implies, describes the current condition of events, focusing solely on the phenomena or situation under investigation and its features.[4] Moreover, research and action methods are applied in this thesis in order to find immediate solutions to current challenges within merger control in online platforms.

The material used in this thesis includes primary and secondary sources. Primary sources in this thesis include the EU legislation, as well as legal instruments concerning EU merger control legislation and case law. Books, academic articles, doctrinal works and legal blog sources are used as secondary sources.

1.5. Outline

This thesis consists of five chapters, including its introduction and conclusion.

The introduction addresses an overview, the necessity of this topic and the methodology of the thesis research.

The second chapter refers to the understanding of concepts and regulations of merger control and online platforms.  Merger control requirements proposed DMA, network effects are also discussed in this chapter.

The third chapter focuses on unilateral effects as a type of competitive harm, rising cases within online platforms, the role of unilateral effects in those cases and acquisitions by gatekeepers within DMA.

The fourth chapter introduces the analysis of cases concerning EU merger control in online platforms and discusses current challenges within the digital platforms.

The conclusion makes an overall review of the analysis in this thesis.

2. EU merger control and online platforms

2.1. EU merger control

2.1.1. Merger control overview and regulation

EU merger control plays an important role in preventing the consequences of anti-competitive actions after mergers or acquisitions. Merger control has a wide scope within the internal market and provides for a division into two parts: regulation throughout the EU based on the EUMR[5] and national regulations and control, which are based on the legislation of the EU Member States.

With the exception of Luxemburg, all EU Member States have an EU-compliant merger control mechanism, which prescribes the merger procedure, control regime, mandatory notification and sanctions for non-compliance with these rules. The EU has exclusive jurisdiction over anti-competitive actions with a “Community dimension”.[6] Transactions, which are subject to notification to, and clearance by, the EC under EUMR are not subject to parallel merger inquiries under national merger control provisions of Member States.[7]

Thus, an important regulator of relations in the framework of merger control is the EUMR, which contains the rules for notification and assessment of concentrations, thresholds, notification requirements, and obligations to suspend implementation-pending clearance, fundamental procedures and administrative sanctions.[8] Moreover, procedural matters relating to notifications (including forms), time limits, the right to be heard, file access, treatment of confidential information and submission of commitments are covered by “implementing” Commission Regulation[9].[10]

The acquisition of direct or indirect control of an undertaking by one or more individuals already controlling another undertaking or by one or more other enterprises might result in a “change” of control on a long-term basis.[11] It can also occur through the merging of two or more separate undertakings. Article 3 of EUMR defines the concept of concentration and control. Subjects of control are persons or undertakings that either have or have been assigned rights in a related transaction or have the power to exercise those rights in a related transaction.[12] Under this Article, control of one enterprise by another provides for both de-jure and de-facto management of the company. For example, the real control when managing less than 50% of the shares of another company, de-facto control, and not its de-jure management, is considered.

It is important to note that the EU merger control rules apply to all undertakings involved in the merger process regardless of their registration or location.[13] The reason for this is the importance of the stability of the internal market in the framework of the merger and the possibility of negative influence from companies that are interested in carrying out commercial or other activities within the EU.

2.1.2. EU Dimension

According to Article 1(2) of EUMR, if a concentration has a “Community dimension”, parties must notify the EC for permission prior to implementation.[14] The proposed merger must be disclosed to the EC if the merged enterprises’ annual revenue exceeds defined levels in terms of worldwide and European sales.

The EC performs the function of reviewing and examining mergers that are of large character in the framework of established thresholds. The EUMR considers two ways to reach turnover thresholds for the EU dimension.

The primary way requires: (a) combined worldwide turnover of all the merging firms over €5 000 million, and (b) EU-wide turnover for each of at least two of the firms over €250 million.[15]

The alternative way requires: (a) a worldwide turnover of all the merging firms over €2 500 million; (b) a combined turnover of all the merging firms over € 100 million in each of at least three of the Member States; (c) a turnover of over €25 million for each of at least two of the firms in each of the three Member States; (d) EU-wide turnover of each of at least two firms of more than €100 million. In both alternatives, an EU dimension is not met if each firm archives more than two-thirds of its EU-wide turnover within the same Member State.[16]

Under the applicable national merger control laws, national competition authorities in the EU Member States may evaluate the transaction if it falls below certain levels. As previously noted, national merger control laws play an important role in the normalization of merger controls and the prevention of anti-competitive actions in EU Member States which serve as the main purpose of merger control within the EU.

2.1.3. Merger control within the EU digital market

Digitalization continues to gain momentum globally, as well as in business activities within the EU. Antitrust authorities in several countries have proved that merger-control is an effective way to ex-ante regulate prospective anticompetitive transactions.[17] From 2010 to 2019, it is estimated that EC has reviewed around 3200 merger cases.[18] Due to the fact that there is no clear regulation of merger control within the DM, opinions on this matter are divided into two parts, where some argue that merger control regulation should be developed by the EU based on judicial practice, while others are convinced that there is no such need and digital merger control can rely on provisions of EUMR.

While the core ideas of the EC’s Notice on the Relevant Market[19] are still valid, the rules do not address some of the recent developments in practice, notably in the digital economy. The EC is presently determining whether and how the recommendations should be revised to reflect those results.[20]

Following Germany and Austria’s implementation of filing thresholds based on transaction values to catch such acquisitions, the EC is examining whether to recommend adjustments to the Community dimension thresholds. The experts advise against modifying the Community dimension requirements, instead recommending that the feasibility of the German and Austrian standards, as well as the EUMR’s existing referral mechanism, be continuously monitored.[21] The peculiar establishment of thresholds by Germany and Austria has led to doubts about the effectiveness of the current system of thresholds in the EU, the purpose of which is to reveal the facts of illegal competition. Consequently, it is also important to note that the revenues and annual earnings of the company, the turnover no longer show the actual position of the company in the market due to the inability to track activities and establish a balance in most types of activities in the DM. Holding the speech at the 24th Annual Competition Conference[22], Commissioner Vestager mentioned that thresholds are still considered an important foundation in merger control, but it is believed that there is a need to establish new thresholds based not on the company’s sales price, but on the value of the merger.[23] At the same time, the Commissioner doubts the success of the establishment of the new threshold while giving hope for the improvement of the present system of merger control and a planned approach to change.

Thus, merger control does not have specific regulations within the DM, however, the EU is gradually preparing and implementing acts in this area, which makes it possible to rely on successful delimitation within the framework of merger control in the DM.

2.2. Online platforms

2.2.1. Concept

Online platforms play an important role in the business activities of companies that are aimed at conveniently attracting buyers within a unified system of activities. It is difficult to come up with a complete definition of online platforms that encompasses all of the many aspects of today’s digital business models. At the same time, policymakers must include all of these traits in their analysis since each one may pose a threat to a certain public interest.[24]

Nevertheless, the Commission gave a broader and more appropriate definition to the concept of an ‘online platform’, and analyzed its use, relying on the opinions of influential lawyers. Thus, an ‘online platform’ is an undertaking that operates in two (or multi)-sided marketplaces and uses the Internet to facilitate interactions between two or more different but interdependent groups of users in order to produce value for at least one of them.[25]

The concept of an online platform defined by the EC is based on economic principles that include the activities of multi-sided platforms and companies. Multi-sided platforms are defined as: “a) two or more groups of customers, b) who need each other in some way, c) but who cannot capture the value from their mutual attraction on their own; and d) rely on the catalyst (platform) to facilitate value-creating transactions between them”.[26]

The Commission’s largely economic definition of multi-sided online platforms sheds light on key characteristics of these enterprises, such as their intermediary position, the interdependencies that emerge between their various user groups, and the role that data plays in bridging these gaps. This is a valuable method of thinking about internet platforms that policymakers and regulators may use to guide their work.[27]

2.2.2. Network effects and their barrier to entry or expansion

The network effect is a term used in economics to describe the impact of one user of a good or service on the value of that product to other consumers.[28] In general terms, network effects are structured into two types according to the principle of subjects participating in multi-sided markets. These types are direct and indirect network effects. Direct network effects occur when the number of users on one side of the platform varies, and the value of the product or service to other users on the same side of the platform changes as well.[29] Indirect network effects occur when the number of users on one side of the platform changes, and the value of a product or service to a set of users on the other side of the platform changes as well.[30]

Market entry barriers are an important factor leading to ineffective competition. If a market entry has simple conditions and clearly defined delineations, then the merger is unlikely to have a negative impact on the market for healthy competition. As long as the entry is foreseeable, timely, and sufficient to dissuade or defeat any possible anti-competitive impacts of the merger, it is a competitive restraint on the merging parties.[31] Depending on the market specifics, online platforms and participants in this market may provide for certain barriers, such as thresholds, transaction costs, licensing of activities, etc., which affect the opportunities for new participants to enter this market, given their little experience and strength in this market.

The strength of network effects must reach a significant level to represent an entry barrier in the meaning of EU merger control, which is difficult to evaluate and may vary depending on the specific characteristics of the relevant market. Thus, network effects are viewed as a possible barrier to entrance or growth, and so play an essential role in the entire competitive analysis.[32]

2.2.3. Digital Markets Act (DMA)

The need for a clear regulation of online platforms in order to develop the DM and ensure healthy competition has been a major issue in the EC policy in recent years. Large online platforms, having a certain strength within the market, act as “gatekeepers”. In order to prevent power seclusion in one entity, the EC proposed a new DMA[33] in December 2020 that will help set limits for “gatekeepers” and lay the foundation for a new legal tradition within the digital marketplace.[34]

The EC establishes the provisions of the DMA in two directions, which, firstly, cover the concept and scope of “gatekeepers”, and secondly, their obligations and general delimitations within the framework of activities in the DM. To be clear, the scope and requirements are linked: obligations are targeted to meet competition issues that arise only when a corporation has a significant amount of market power.[35]

Therefore, according to the DMA, large companies in online platforms to qualify as gatekeepers must meet such objective and general criteria as (a) have a strong economic position and market influence throughout the EU; (b) play the role of connecting large enterprises and multiple users within the online platform market and (c) have a stable activity for many years.[36] It can be concluded that a gatekeeper must operate a ‘core platform service’, which includes online intermediation services, online search engines, online social networking services, video-sharing platform services, number-independent interpersonal communication services, operating systems, cloud computing services, advertising services provided by a provider of any of the services listed before.[37] These general criteria are considered as qualitative criteria; however, the DMA also provides quantitative criteria that directly establish the thresholds for the application of the provisions of this Act.

These suggestions may guarantee that the EU sets the rules for fair access and competition for all businesses, including SMEs, and that they encourage a safer and more accessible Internet for European people, as well as a digital ecosystem that respects fundamental rights and democratic institutions.[38]

3. Unilateral competitive effects within Digital Market

3.1. Unilateral Effects: A Different Type of Competitive Harm

The merger in many cases, in practice, can negatively contribute to the emergence of restrictions for healthy competition in the market. As a result, the companies are on the path to higher prices in the market after the merger. This ability of companies to increase prices after the merger due to the removal of competitive restrictions is provided for by unilateral effects. This process involves the merger of competitors in the market, which are not even aimed at dominating the market, but at the same time play an important role in the supply of their products by merging. This situation gives them an opportunity to raise prices in the market due to the solitude of the forces of two competitors already at one large company. Interestingly, buyers will not avoid it due to the rise in prices, on the contrary, the company may be able to acquire more buyers in the market.[39] Thus, if a company can raise prices above the competitive level without influencing customers to lower their purchases to the point where the price rise is unprofitable, it is said to have “unilateral” market dominance.[40]

Theories of competition harm are enshrined in the EUMR provisions, which are divided into three main principles and provide for the conclusion by the Commission of their significantly harmful nature to customers which are (a) large market shares by merging firms; (b) differentiated products; (c) not increasing supply by increasing price by competitors. [41] These principles are the basis for the concept of unilateral effects and are essential for their characteristics, which are indicated above.

In rulings allowing mergers with significant market shares notwithstanding the lack of unilateral effects, the EC evaluated the absence of unilateral effects. In the Philips/Agilent Health Care Solutions[42] and Philips/Marconi Medical Systems[43] cases, conclusions based on the merging parties’ lack of substitutability were reached, and both mergers were approved despite substantial market shares in the provision of medical diagnostic equipment.[44]

The EC has relatively little experience with unilateral effects. In circumstances where the post-merger market share was already significant to support a finding of dominance, the EC tended to use unilateral effects analysis. In areas with unilateral effects, the EC’s examination has frequently overlooked dynamic elements such as the remaining competitors’ capacity to reposition their products. While the EC was aware of the importance of unilateral effects analysis, the EC’s case law indicated that there was no definite answer as to whether unilateral effects analysis could be extended from the dominance test to bridge the purported gap in the EUMR.[45]

3.2. Unilateral Effects on online platforms

Practice in recent years shows an increase in the role of start-ups in online platforms as well, however, which subsequently choose the need to be merged with large companies, or, on the contrary, large companies attract and merge such start-ups. These actions, of course, are not always envisioned as competition harms. The acquirer’s position enables it to spot developing trends in consumer consumption patterns early on and respond – whether by replicating new goods or services or acquiring successful start-ups.[46] In this situation, the threat of acquisition to competition is not confined to the denial of rivals’ access to inputs, but also includes the strengthening of dominance.[47]

According to Article 2(3) EUMR, a concentration shall be declared incompatible with the common market where as a result the creation or strengthening of a dominant position it significantly impedes effective competition.[48] This provision also applies to mergers of start-ups by dominant companies, especially when actions are directed at a competitor of the acquiring company and such actions entail an even greater strengthening of the dominant position without the possibility of other competitors exerting significant influence. Thus, startups are now important actors in the context of horizontal unilateral effects within online platforms.

The acquisition of start-ups from the side of large companies can be considered difficult to be regulated under the EUMR. One of those difficulties is in terms of determining the jurisdiction, which acquirers manage to change EC’s jurisdiction without much effort within online platforms at the time of the merger. In addition, the determination of jurisdiction is important for establishing the company’s turnover and identifying the fact of relevant turnover thresholds in accordance with the EUMR. Another difficulty can be seen in distinguishing the negative impact on competition or maintaining healthy competition in the market as a result of such a merger. While the removal of prospective competition may be sufficient to create competitive concerns, proving the presence of possible competition with a sufficient degree may be challenging.[49]

Since online platforms are so widespread and involve many types of activities, the issue of unilateral effects is endlessly debated. An important factor in this is the application of the provisions of the EUMR, which currently have an important role in regulating merger control within online platforms. However, when it comes to multi-sided platforms, traditional methodologies for analyzing mergers between single-sided enterprises might lead to incorrect results. Such an evaluation involves a narrow analysis of the market and a focus on the effects of competition. When multi-sided platforms are involved in a merger, the accurate analysis must account for indirect network effects between the numerous sides, as well as the resulting influence on pricing and production for multiple sides.[50]

 4. Practicalities in the EU Merger control in online platforms

With the increase in the number of online platforms, digital mergers are rising and therefore the number of EU merger cases is also growing. Before diving into recent merger cases, it is important to note that the Commission is carefully considering the closeness of competition, consumers’ ability to switch providers within online platforms, general barriers to entry and expansion, network effects, and geographic and product market definitions. Some of the digital mergers that the EC has lately examined were referred to it through the referral mechanism, such as Apple/Shazam and Facebook/WhatsApp.[51] This means that mergers can be considered by the internal merger control system of the EU Member States in connection with such a system.

One of the important cases in the digital marketplace is the Facebook/WhatsApp case, which covers the merging process of WhatsApp Inc. to Facebook Inc. Both platforms are aimed at communication between people, however, in different forms where WhatsApp is used through smartphone apps, and Facebook has wider services within the social network. The EC accepted that the two platforms are not direct competitors and that consumers will continue to enjoy a diverse range of consumer communications applications following the transaction. Despite the fact that network effects are a feature of consumer communications applications, the analysis revealed that the merged business will still face enough competition following the merger.[52]

The consumer communications sector, according to the Commission, is a new and rapidly developing industry characterized by frequent market entrance and short innovation cycles, in which significant market shares may prove to be transitory. In such a dynamic environment, the Commission believes that large market shares are not always indicative of market power and, as a result, of long-term harm to competition.[53]

According to Article 6(3)(a) of EUMR, the Commission has the authority to revoke a decision if it is based on inaccurate information provided by one of the undertakings.[54] The provisions of this article were applied within the framework of the protection of the personal data of these platforms’ users. Initially, in 2014, Facebook noted that there is no way to link the personal data of Facebook and WhatsApp users and that such functions cannot be developed by Facebook. However, in 2016, WhatsApp announced updates to its terms of service and privacy policy, including the possibility of linking WhatsApp users’ phone numbers with Facebook users’ identities.[55] This situation approved the provision of intentionally false information on the part of Facebook and held it liable in the form of a fine.

Looking at the broader market for social networking services, the Commission found a “certain overlap and a blurring of lines in the functionalities” when comparing these services with those offered by consumer communication apps, but also a number of important differences, as social networking services offer a much broader and richer set of services and social experience.[56]

Another significant case that provides for a clear analysis by the Commission is the merger of Apple and Shazam, where the latter has a narrower focus on its services as music recognition in the platform. In order to identify the possibility of violation of the rules of healthy competition, the Commission proceeded to analyze the positions of the competitors of these companies and their status as a result of the merger. It should be noted that the Commission in this case also focuses on the possible dissemination of personal data of users, which may seriously affect the competition with other companies.

By gaining access to economically sensitive information about its clients, the combined organization would not be able to block off competing suppliers of digital music streaming services. The combination of Shazam’s and Apple’s datasets on user data would not provide the combined firm with a competitive advantage in the areas in which it competes. Any fears about this were put to rest because Shazam’s data is not unique, and Apple’s rivals would still be able to access and utilize comparable datasets. Subsequently, the Commission came to the conclusion that the acquisition would not cause any significant competition issues in the EEA or any part of it.[57]

These cases are indicative of the Commission’s successful merger control which resorts to a clear analysis of the issues due to the lack of regulation within online platforms. However, it is necessary to take into account emerging challenges of unilateral competitive effects in EU merger control within online platforms.

The majority of the purchases were not evaluated by the EC or national competition authorities since they were below the notification criteria, which is an issue for existing competition policy and economic regulation aimed at protecting market contestability. Such a provision complicates the verification process and provides for barriers in identifying all participants in the merger in order to maintain healthy competition. Because competition authorities tend to focus more on the consequences of the merger on present competition than on anticipated competition and innovation, the few mergers that have been considered were generally authorized without constraints.[58]

At present, due to the emergence and increase of such problems, it is important to take into account the bifurcation of ideas about the way out of such a situation. One idea is to change thresholds and establish regulations to allow more merger cases to be handled within online platforms while restricting gatekeepers to focus the market on their hands. Another idea is to establish new theories of harm and expand the powers of the Commission to restrict some activities of companies that allegedly violate healthy competition in the market. Finally, passing a DMA without including a provision to regulate concentrations would leave a substantial hole in the EU’s digital agenda.[59]

5. Conclusion

As a result of the analysis carried out in this paper, the role of merger control in the era of transition to a DM, which is gaining more and more scope for a successful resolution in the EU, becomes clear.

Despite finding that there is no specific regulation on merger control within online platforms, the EC takes the position of applying the provisions of EU primary law and especially those of the EUMR. This position once again confirms the need to accelerate the process of adoption of the DMA, which, according to assumptions, will play a rather serious role in improving the regulation of many relations in the DM.

Having studied regulation and the concept of online platforms, it is impossible to do without studying the effects of the network and the barriers to entry that they cause. This issue, as a result of a brief analysis, remains open for study, since the strengthening of the role of both direct and indirect network effects raises serious concerns about entering the online platform market.

The EC does not have much practice in studying questions of unilateral effects. However, there is a connection with the study of the dominance test, which is applied in theoretical studies and did not have practical reflections.

Finally, case law provides some insight into the Commission’s analysis of merger control in the digital marketplace which provides insight into the EU’s targeted policies on merger control and online platform surveillance. The rising role of start-ups, the application of new regulations, and the frequent discussion to establish new thresholds allow for the improvement in merger control in online platforms.

 

BIBLIOGRAPHY

Legislative acts

  1. Commission Notice on the definition of relevant market for the purposes of Community competition law [1997] OJ C 372
  2. Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings [2004] OJ L 24
  3. Commission Regulation (EC) No 802/2004 of 7 April 2004 implementing Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings [2004] OJ L 133
  4. Proposal for a Regulation of the European Parliament and of the Council on contestable and fair markets in the digital sector (Digital Markets Act) [December 2020] COM/2020/842

 

Books and Articles

  1. Antonio Robles Martin-Laborda, “Merger control and online platforms: the relevance of network effects” Market and Competition Law Review (October 2017)
  2. Ashurst LLP, “Quickguides Overview and Merger Control” (November 2021)
  3. Control of Acquisitions by Digital Gatekeepers in EU Law”, TILEC Discussion Paper No. DP2021-16, 2021 (October 11, 2021)
  4. David S. Evans & Michael D. Noel, “The Analysis Of Mergers that Involve Multisided Platform Businesses”, Journal of Competition Law & Economics, Oxford University Press (May 2008)
  5. Eline Chivot, “The new EU rulebook for online platforms: How to get it right, who will it impact and what else is needed?”, European View 20 (2021)
  6. Jacques Crémer, Yves-Alexandre de Montjoye and Heike Schweitzer, “Competition Policy for the digital era” Publications Office of the European Union (2019)
  7. Jens-Uwe Franck and Giorgio Monti and Alexandre de Streel, “Options to Strengthen the Control of Acquisitions by Digital Gatekeepers in EU Law”, TILEC Discussion Paper No. DP2021-16, 2021 (October 11, 2021)
  8. Neil Horner “Unilateral Effects and the EC Merger Regulation – How The Commission Had its Cake and Ate it Too” HANSE LAW REVIEW (2006)
  9. Olga Batura, Nicolai van Gorp, Prof. Pierre Larouche “Online Platforms and The EU Digital Single Market” (November 2015)
  10. Roopika Rastogi, “Assessing the “unilateral” effects on horizontal non-coordinated merger” Internship Project Report (2012)
  11. Roscoe B. Starek III and Stephen Stockum “What Makes Mergers Anticompetitive?: “Unilateral Effects” Analysis Under The 1992 Merger Guidelines” American Bar Association (Spring 1995)
  12. Siyou Zhou, “Merger Control in Digital Era”, International Federation of European Law (“FIDE”) Congress (2021)
  13. Steve Spinks and Ken Daly – Sidley Austin LLP, “Merger Control A practical cross-border insight into merger control issues” 18th Edition (2021)
  14. Vibhute K. and Aynalem F., ‘Legal Research Methods’, Teaching Material (2009)

 

Internet sources

  1. Authority of the House of Lords – Select Committee on European Union, “Online Platforms and The EU Digital Single Market”, 10th Report of Session 2015–16, p. 16 (April 2016) <https://publications.parliament.uk/pa/ld201516/ldselect/ldeucom/129/129.pdf> accessed  9 January 2022
  2. David Evans and Richard Schmalenese “The Antitrust Analysis of Multi-sided Platform Businesses”, National Bureau of Economic Research (December 2012) <http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1482&context=law_and_economics> accessed 9 January 2022
  3. European Commission, “Mergers Overview” <https://ec.europa.eu/competition-policy/mergers/mergers-overview_en> accessed 26 December 2021
  4. European Commission “The future of EU merger control” International Bar Association 24th Annual Competition Conference (11 September 2020) <https://ec.europa.eu/commission/commissioners/2019-2024/vestager/announcements/future-eu-merger-control_en> accessed 6 January 2022
  5. European Commission, ‘Public Consultation on the regulatory environment for platforms, online intermediaries, data and cloud computing and the collaborative economy’ (September 2015) <https://ec.europa.eu/digital-agenda/en/news/public-consultation-regulatory-environment-platforms-onlineintermediaries-data-and-cloud > accessed 8 January 2022
  6. European Commission, “The Digital Markets Act: ensuring fair and open digital markets” <https://ec.europa.eu/info/strategy/priorities-2019-2024/europe-fit-digital-age/digital-markets-act-ensuring-fair-and-open-digital-markets_en> accessed 10 January 2022
  7. European Commission, “Mergers: Commission approves acquisition of WhatsApp by Facebook” (3 October 2014)

<https://ec.europa.eu/commission/presscorner/detail/en/IP_14_1088> accessed 11 January 2022

  1. European Commission, “Mergers: Commission fines Facebook €110 million for providing misleading information about WhatsApp takeover” (18 may 2017) <https://ec.europa.eu/commission/presscorner/detail/pl/IP_17_1369> accessed 12 January 2022
  2. European Commission, “Mergers: Commission clears Apple’s acquisition of Shazam” (6 September 2018) <https://ec.europa.eu/commission/presscorner/detail/en/IP_18_5662> accessed 12 January 2022
  3. European Court of Auditors, Special Report No 24/2020: The Commission’s EU merger control and antitrust proceedings: a need to scale up market oversight <https://www.eca.europa.eu/en/Pages/DocItem.aspx?did=56835> accessed 4 January 2022
  4. Mariniello, M. and C. Martins “Which platforms will be caught by the Digital Markets Act? The ‘gatekeeper’ dilemma”, Bruegel Blog, December (2021) <https://www.bruegel.org/2021/12/which-platforms-will-be-caught-by-the-digital-markets-act-the-gatekeeper-dilemma/> accessed 10 January 2022

 

 

TABLE OF CASES

 

  1. Case No COMP/M.2256 – Philips / Agilent Health Care Solutions, CELEX database Document No 301M2256 [2001] SG(2000)D/286492
  2. Case No COMP/M.2537 – Philips / Marconi Medical Systems, CELEX database Document No 301M2537 [2001] SG (2001) D/291821
  3. Commission Decision of 3 October 2014 declaring a concentration to be compatible with the common market (Case No COMP/M.7217 – Facebook/WhatsApp) according to Council Regulation (EC) No 139/2004
  4. Commission Decision of 6 December 2016 pursuant to Article 6(1)(b) (Case M.8124 – Microsoft/LinkedIn) in conjunction with Article 6(2) of Council Regulation No 139/20041 and Article 57 of the Agreement on the European Economic Area.
  5. Commission Decision of 11 March 2008 (Case No COMP/M.4731 – Google/ DoubleClick) declaring a concentration to be compatible with the common market and the functioning of the EEA Agreement.
  6. Commission Decision of 6 September 2018 (Case C(2018) 5748 – M.8788 – Apple/Shazam) declaring a concentration to be compatible with the internal market and the EEA Agreement.

—

[1] Siyou Zhou, “Merger Control in Digital Era”, International Federation of European Law (“FIDE”) Congress (2021), p. 2

[2] Eline Chivot, “The new EU rulebook for online platforms: How to get it right, who will it impact and what else is needed?”, European View 20 (2021), p. 22

[3] Zhou (n 1) 2

[4] K. Vibhute and F. Aynalem, ‘Legal Research Methods’, Teaching Material (2009) p. 22

[5] Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings [2004] OJ L 24

[6] Ashurst LLP, “Quickguides Overview and Merger Control” (November 2021), p. 1

[7] ibid 1

[8] Steve Spinks and Ken Daly – Sidley Austin LLP, “Merger Control 2020. A practical cross-border insight into merger control issues” 18th Edition (2021), p. 4

[9] Commission Regulation (EC) No 802/2004 of 7 April 2004 implementing Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings [2004] OJ L 133

[10] Spinks and Daly (n 8) 4

[11] ibid 4

[12] EUMR (Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings) art. 3

[13] European Commission, “Mergers Overview” <https://ec.europa.eu/competition-policy/mergers/mergers-overview_en> accessed 26 December 2021

[14] Spinks and Daly (n 8) 6

[15] EUMR (Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings) art. 1(2)

[16] EUMR (Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings) art. 1(3)

[17] Zhou (n 1) 7

[18] European Court of Auditors, Special Report No 24/2020: The Commission’s EU merger control and antitrust proceedings: a need to scale upmarket oversight <https://www.eca.europa.eu/en/Pages/DocItem.aspx?did=56835> accessed 4 January 2022

[19] Commission Notice on the definition of the relevant market for the purposes of Community competition law [1997] OJ C 372

[20] Spinks and Daly (n 8) 17

[21] ibid 17

[22] European Commission “The future of EU merger control” International Bar Association 24th Annual Competition Conference (11 September 2020) <https://ec.europa.eu/commission/commissioners/2019-2024/vestager/announcements/future-eu-merger-control_en> accessed 6 January 2022

[23] ibid

[24] Olga Batura, Nicolai van Gorp, Prof. Pierre Larouche “Online Platforms and The EU Digital Single Market” (November 2015), p. 17

[25] European Commission, ‘Public Consultation on the regulatory environment for platforms, online intermediaries, data and cloud computing and the collaborative economy’ (September 2015) <https://ec.europa.eu/digital-agenda/en/news/public-consultation-regulatory-environment-platforms-onlineintermediaries-data-and-cloud > accessed 8 January 2022

[26] David Evans and Richard Schmalenese “The Antitrust Analysis of Multi-sided Platform Businesses”, National Bureau of Economic Research (December 2012) <http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1482&context=law_and_economics> accessed 9 January 2022

[27] Authority of the House of Lords – Select Committee on European Union, “Online Platforms and The EU Digital Single Market”,  10th Report of Session 2015–16, p. 16 (April 2016) <https://publications.parliament.uk/pa/ld201516/ldselect/ldeucom/129/129.pdf> accessed  9 January 2022

[28] ibid 25

[29] ibid 25

[30] ibid 26

[31] Antonio Robles Martin-Laborda, “Merger control and online platforms: the relevance of network effects” Market and Competition Law Review (October 2017) p. 7

[32] ibid 8

[33] Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on contestable and fair markets in the digital sector (Digital Markets Act) [December 2020] COM/2020/842

[34] Spinks and Daly (n 8) 17

[35] Mariniello, M. and C. Martins “Which platforms will be caught by the Digital Markets Act? The ‘gatekeeper’ dilemma”, Bruegel Blog, December (2021) <https://www.bruegel.org/2021/12/which-platforms-will-be-caught-by-the-digital-markets-act-the-gatekeeper-dilemma/> accessed 10 January 2022

[36] European Commission, “The Digital Markets Act: ensuring fair and open digital markets” <https://ec.europa.eu/info/strategy/priorities-2019-2024/europe-fit-digital-age/digital-markets-act-ensuring-fair-and-open-digital-markets_en> accessed 10 January 2022

[37] Mariniello and Martins (n 35)

[38] Chivot (n 2) 27

[39] Neil Horner “Unilateral Effects and the EC Merger Regulation – How The Commission Had its Cake and Ate it Too” HANSE LAW REVIEW (2006) p. 24

[40] Roscoe B. Starek III and Stephen Stockum “What Makes Mergers Anticompetitive?: “Unilateral Effects” Analysis Under The 1992 Merger Guidelines” American Bar Association (Spring 1995) p. 803

[41] Roopika Rastogi, “Assessing the “unilateral” effects on horizontal non-coordinated merger” Internship Project Report (2012) p. 20

[42] Case No COMP/M.2256 – Philips / Agilent Health Care Solutions, CELEX database Document No 301M2256 [2001] SG(2000)D/286492

[43] Case No COMP/M.2537 – Philips / Marconi Medical Systems, CELEX database Document No 301M2537 [2001] SG (2001) D/291821

[44] Horner (n 39) 29

[45] ibid 29

[46] ibid 29

[47] ibid 29

[48] EUMR (Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings) art. 2(3)

[49] Jacques Crémer, Yves-Alexandre de Montjoye and Heike Schweitzer, “Competition Policy for the digital era” Publications Office of the European Union (2019) p. 111

[50] David S. Evans & Michael D. Noel, “The Analysis Of Mergers that Involve Multisided Platform Businesses”, Journal of Competition Law & Economics, Oxford University Press (May 2008) p. 665

[51] Crémer, Montjoye and Schweitzer (n 49) 120

[52] European Commission, “Mergers: Commission approves acquisition of WhatsApp by Facebook” (3 October 2014) <https://ec.europa.eu/commission/presscorner/detail/en/IP_14_1088> accessed 11 January 2022

[53] Commission Decision of 3 October 2014 declaring a concentration to be compatible with the common market (Case No COMP/M.7217 – FACEBOOK / WHATSAPP) according to Council Regulation (EC) No 139/2004 para. 99.

[54] EUMR (Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings) art. 6(3)(a)

[55] European Commission, “Mergers: Commission fines Facebook €110 million for providing misleading information about WhatsApp takeover” (18 may 2017) <https://ec.europa.eu/commission/presscorner/detail/pl/IP_17_1369> accessed 12 January 2022

[56] Crémer, Montjoye and Schweitzer (n 49) 121

[57] European Commission, “Mergers: Commission clears Apple’s acquisition of Shazam” (6 September 2018) <https://ec.europa.eu/commission/presscorner/detail/en/IP_18_5662> accessed 12 January 2022

[58] Franck, Jens-Uwe and Monti, Giorgio and de Streel, Alexandre, “Options to Strengthen the Control of Acquisitions by Digital Gatekeepers in EU Law”, TILEC Discussion Paper No. DP2021-16, 2021 (October 11, 2021) p. 5

[59] ibid 6