Global Antitrust Hot Topics #1 Mergers: A Definitive Need for Reform?

1st Webinar of the « 8th Global Antitrust Hot Topics Conference » organised by Concurrences, in partnership with Baker Botts and Cornerstone Research, with Hanna Anttilainen (Head of Unit - Mergers, DG COMP), Peter Davis (Senior Vice President, Cornerstone Research), Catriona Hatton (Partner, Baker Botts), Adam Shulman (Deputy General Counsel, Celanese) and Stephen Weissman (Partner, Baker Botts).

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Catriona Hatton opened the discussion by recalling serious challenges for merger control enforcement on both shores of the Atlantic. In particular, the antitrust community is struggling with the best way to assess acquisitions of small competitors by large players. In 2019, the attempted acquisition of Pacific Biosciences by Illumina in the DNA sequencing sector provided an example of how enforcers (the UK CMA and the US FTC in that case) could challenge a transaction involving the acquisition of a nascent competitor and ultimately contribute to the abandonment of a deal. In addition to this changing enforcement environment, the standard of proof in European merger control proceedings has recently been questioned by a landmark judgement of the General Court of the European Union (Case T-399/16, CK Telecoms v Commission). Although it is still necessary to wait for the Court of Justice to review the appeal lodged by the European Commission, this judgement may well have a significant impact on the various reforms of merger control under consideration at European level and in the meantime, it will impact assessments of transactions in highly concentrated markets. As part of a broad-based review of merger control enforcement to adapt to the new economy, the European Union is considering several changes, including broadening its jurisdiction to capture smaller transactions which may impact competition.

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