Disruptive innovation and merger remedies: How to predict the unpredictable?

Innovation seems to have become the new mantra among the antitrust community in Europe. In the specific context of merger control, the debate focuses on the possible impact of mergers on classic R&D and whether turnover-based jurisdictional thresholds create a risk that certain harmful transactions in highly innovative sectors slip through the cracks. Little is said, however, on the rise of disruptive innovation patterns in many industries, and the regulators’ ability to apprehend disruptive innovation in merger control assessments. In particular, imposing structural or long-term remedies in fast-evolving markets where the future is more uncertain than usual could result in situations of unnecessarily disruptive remedies. This paper discusses the impact of disruptive innovation on European merger control processes and the need to adapt the regulators’ tools—and in particular merger remedies—to the specificities of innovative sectors.

I. Introduction 1. Traditionally, there have been two ways of looking at market innovation from a macroeconomic theory standpoint. The first one—chronologically—is Joseph Schumpeter’s theory of continuous innovation and creative destruction, whereby markets develop in cycles. [1] Schumpeter challenged the static analysis of macroeconomics developed by Ricardo and Keynes to introduce a dynamic element based on regular equilibrium disturbances. Under Schumpeter’s assumptions, excluding innovations and innovative activities, the evolution of markets would lead to a stationary state. Growth is only possible because the equilibrium is regularly broken by the appearance of disruptive innovations, each of them starting a new cycle that will eventually result in a new stable equilibrium.

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  • Cleary Gottlieb Steen & Hamilton (Paris)
  • Dechert (Paris)


Frédéric de Bure, Laurence Bary, Disruptive innovation and merger remedies: How to predict the unpredictable?, September 2017, Concurrences N° 3-2017, Art. N° 84407,

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