Preparing effectively and working collaboratively with authorities can go a long way in successful merger control

“Merger control has resulted in more interventions by competition agencies and technology players especially need to be aware of the much more significant levels of regulatory scrutiny. When agencies look at whether mergers are likely to lead to reduced competition, technology is now a consideration of paramount importance.

The problem is, they are still struggling to define if and how innovation is impacted by the different dimensions of technology and how to assess potential harm in fast-moving and dynamic markets. Our approach is to assist our clients in building a strong team to prepare well, be diligent in assembling the right information for the inevitable requests for information they will receive, present effectively and be ready for a long-haul process.”

- Gerwin Van Gerven
The implications of new technology are also having a greater bearing on authorities’ interest in and propensity to review proposed mergers. For example, agencies are looking at the extent to which control over data can potentially harm competition. When approving the recent merger between Apple and Shazam, EU Commissioner Margrethe Vestager noted: “Data is key in the digital economy. We must therefore carefully review transactions which lead to the acquisition of important sets of data, including commercially sensitive ones, to ensure they do not restrict competition.” Meanwhile, the Japan Fair Trade Commission is reviewing its merger guidelines in order to clarify how it will assess data accumulation by online platforms – the potential first step in addressing online platform competition concerns.

What agencies are investigating is whether the application of new technology should fall within an existing theory of harm such as stifling innovation or conglomerate effects. However, there continues to be doubt as to how appropriate these theories are in the context of technology markets. This is all the more so because technology markets are fast-moving and dynamic and theories of harm which seem plausible today may be obsolete or become irrelevant as these markets develop. It is therefore important to challenge the regulators’ starting position and creatively and productively think beyond the immediate effects of any merger in the tech sector. For example, in Just Eat/ HungryHouse, the UK CMA was persuaded to assess the market as it would be in the future, as opposed to its traditional approach of focusing on a static snapshot of the market at the time the deal was entered into.