In this Seminar, Anna Tzanaki will present her paper titled ‘Dynamism and Politics in EU Merger Control: The Perils and Promise of a Killer Acquisitions Solution Through a Law & Economics Lens’.
For more than 35 years, EU merger control remained stable and relied entirely on turnover thresholds to determine whether a merger should be reviewed by the European Commission or by national authorities. This system was simple, predictable, and avoided jurisdictional conflict between the EU and its Member States. It was also part of a political compromise in which the Commission promised not to use general antitrust rules as a substitute for merger enforcement.
However, the digital economy exposed major weaknesses in this model. Killer acquisitions – the takeover of small but innovative startups – often fall below the EU’s turnover thresholds and therefore escape EU review, even when they may have significant cross‑border effects.
To address this gap, the Commission began using Article 22 EUMR in a new way, encouraging Member States to refer below‑threshold mergers to the EU. While this increased flexibility, it also disrupted the original power balance between EU and national authorities and did not fully solve key problems such as deterrence or externalities. The Court of Justice, in the Illumina/Grail case, limited the Commission’s expansive approach but allowed a narrower referral system based on national ‘call‑in’ powers.
The current reinterpretation of Article 22 is neither optimal nor sustainable, and broader reforms to the EU merger control framework are still needed.