Controlling Pre-Emptive Mergers: In Need of a New Approach?

A significant number of acquisitions in pharma and digital markets concerns incumbent firms acquiring, smaller/nascent frequently unknown and resource-constrained firms, with products in development that could compete with their own products in the future and, sometimes, the subsequent termination of the development of the target firm's product (killer acquisitions). An already sizable literature points to significant losses to welfare that might result from these pre-emptive acquisiitons by eliminating potential competitors or by effectively extinguishing the standalone R&D effort of the buyer to expand in a particular space because the target immediately provides the capability (reverse killer acquisitions). Also, in recent years, many competition authorities globally have been advocating for law reform to enhance their enforcement powers in relation to so called “killer acquisitions.” Acquisitions by Google and Facebook, and economies of scope created via control of data sets have often been the focus of attention. It has also been argued, on the other hand, that these transactions may have strong procompetitive underpinnings, combining R&D expertise and placing very risky assets into the hands of firms best positioned to undertake late-stage development and commercialization, ultimately making it more likely that new products successfully come to the market.

In this session, a distinguished panel of speakers, who have made important contributions to the debate and the relevant literature, representing different viewpoints, discussed the issues and reflect on whether there is an inadequacy in the existing merger control toolkit and how best to design competition law and/or other regulatory interventions and remedies to best deal with pre-emptive mergers, illustrating also the differences in the approaches adopted in the US and other countries.