Revue des affaires europeennes, ISSN 1152-9172, Nº 2, 2023, p. 407-422
Killer acquisitions are a threat to young and innovative companies as transactions involving them are generally below EU or national thresholds, and therefore not in the scope of merger control. This is a cause for concern for regulators which are unable to assess such transactions despite the potentially harmful effects on competition. The legal vacuum in merger control enables dominant firms to acquire nascent companies with the aim of eliminating a potential competitor. The European Commission is attempting to address this vacuum by defining a new type of infringement known as the “killer acquisition”. The Commission suggests a new reading of Article 22 of Regulation No 139/2004 on merger control. The new interpretation allows a national competition authority to refer a case to the European Commission even if the transaction does not exceed the national merger control thresholds. This broad interpretation of Article 22 is questionable for two reasons: first, it broadens the application of the EU Merger Regulation at the risk of distorting the true purpose of merger control which enshrines ex ante regulation through the assessment of quantitative thresholds. Second, while this new interpretation pursues a legitimate goal, it fails to comply with certain fundamental principles of EU Law.
