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Analysis Group Authors Explore the Future of EU Merger Review Policy
The EU’s incoming head of competition policy stands to inherit a full slate of responsibilities related to fair markets and sustainable economies. If confirmed, Teresa Ribera will step into the role of Executive Vice-President for a Clean, Just and Competitive Transition. A mission letter from European Commission President Ursula von der Leyen charges Ms. Ribera with “[modernizing] the EU’s competition policy to ensure it supports European companies to innovate, compete and lead world-wide and contributes to our wider objectives on competitiveness and sustainability, social fairness and security.” Dr. Von der Leyen specifically hinted at a review of the EU horizontal merger guidelines (HMG) and a focus on the risks of killer acquisitions.
In a blog post, Analysis Group Vice President Joshua White, Senior Analyst Claire Paoli, and coauthor Jay Modrall (Norton Rose) explore how the mission letter’s ambitious mandate might translate into merger review policy. Noting that the mission letter urges not just a reassessment of the 20-year-old HMG but “calls for substantive changes” in how the European Commission assesses mergers under EU law, the authors posit that changes to the HMG could include increasing the influence of innovation-related efficiencies when weighing a transaction’s impact on competition; taking account of the EU’s present-day security and defense environments; and giving greater weight to time horizons and investment intensities for markets with longer product life cycles, such as energy or pharmaceuticals. In addition, they mention that the commission’s “non-horizontal merger guidelines are also overdue for an update.”
Mr. White, Ms. Paoli, and Mr. Modrall also consider how Ms. Ribera may strengthen protections against killer acquisitions, in which an incumbent business eliminates potential competition by acquiring a market entrant and then terminates development of a project that threatens the incumbent’s market share.
The blog post, “Mission Impossible? Teresa Ribera’s Mission Letter and the Future of EU Merger Review,” was published on the Kluwer Competition Law Blog.
Associated People
Joshua White
Managing PrincipalMr White is a consulting and testifying economist who specialises in applying microeconomics and sophisticated econometric modelling to complex litigation and merger-related questions, primarily in matters involving the health care, financial services and technology industries. He has supported clients in various jurisdictions and industries in follow-on competition damages litigation, assessing overcharge, upstream and downstream pass-on and volume effects. He has served as a testifying expert in the UK Upper Tribunal (Lands Chamber), the UK Competition Appeal Tribunal and the Amsterdam District Court on competition cases.
Mr White has supported high-profile companies with complex merger reviews across multiple jurisdictions, including in the Veolia/Suez, LVMH/Tiffany, Sika/MBCC and Eutelsat/OneWeb mergers. He has also provided evidence to the UK’s Competition and Markets Authority (CMA) and the European Commission (EC), including on behalf of clients involved in cartel investigations, abuse of dominance investigations and mergers. Mr White has also provided support to European financial and competition regulators in coordinated conduct investigations.
Mr White has extensive experience addressing competition and intellectual property (IP) issues in matters related to cutting-edge pharmaceutical products and FRAND licensing questions. As part of this work, he has supported a number of scientific and technical experts in front of courts and regulatory bodies. He also regularly supports pharmaceutical clients on competition issues around market access, pricing, denigration and competition from generic manufacturers.
Mr White has worked in a number of jurisdictions, including the UK, the European Union, Switzerland, Australia, New Zealand, South Africa, Canada, Japan, Korea, the Netherlands, Belgium and the US. His writing has been published in an array of journals, including the Journal of European Competition Law & Practice, the Competition Law Journal and the Journal of Antitrust Enforcement, and he regularly speaks at international competition law and policy conferences.