Pre-Emptive Acquisitions in the Technology Sector: Is It Time to Reconsider the Turnover Thresholds?

摘要

The last decade has seen a significant rise in technology mergers, in particular by the five major technology companies of Amazon, Apple, Facebook, Google and Microsoft. These undertakings are acquiring nascent companies at earlier stages of their development, often before they are generating any significant revenue. However, under the Merger Regulation the European Commission's jurisdiction to investigate a merger is triggered by the turnover levels of both the acquiring company and the target, meaning that more and more technology mergers are likely to fall outside its scope if the trend of companies being acquired before they are revenue-generating continues. Therefore, it is argued in the paper that the jurisdictional rules must be bolstered by the addition of a threshold test based on the value of the transaction (rather than the parties' turnover) in order to plug this regulatory gap and ensure that the Commission maintains effective oversight over all mergers that could potentially impact competition in the EU and the welfare of European consumers. In addition to ensuring that potentially anti-competitive mergers are captured within the Commission's jurisdiction, the paper then suggests amendments to the horizontal merger guidelines that would place emphasis on the specific concerns relating to pre-emptive acquisitions and ensure that they form a clear part of the Commission's substantive assessments in these cases.