In this short piece, I critically discuss the development of harm to innovation as a theory of anticompetitive harm in EU merger policy, following the conditional approval of the Dow/Dupont in 2017.
In the last few years, the European Commission’s (the “Commission”) assessment of horizontal mergers has been increasingly focused on innovation competition, particularly in mergers involving R&D intensive markets. In this context, the Commission’s decision in Dow/DuPont of March 2017 continues to be the subject of much debate almost a year after its adoption (Case COMP/M.7932 Dow/DuPont, para. 3297). The gist of this controversy consists in understanding whether the Commission has, in this case, intervened on the basis of a “novel” economic theory of harm in support of its finding that the merger created a risk of a significant impediment to effective innovation competition (“SIEIC”). From a legal standpoint, the root cause of the controversy is one of process. Introducing new
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