No. 67: The Challenge of Merger Control in Digital Markets and the European Commission’s New Guidance on Article 22 EUMR


  • Mariana Martins
Publish Date:
September 20, 2022
Publication Title:
European Union [EU] Law Working Papers
Stanford Law School
Working Paper
  • Mariana Martins, The Challenge of Merger Control in Digital Markets and the European Commission's New Guidance on Article 22 EUMR, EU Law Working Papers No. 67, Stanford-Vienna Transatlantic Technology Law Forum (2022).
Related Organization(s):


In traditional markets, merger control rules have proved to be a reliable and effective tool to assess possible anti-competitive effects resulting from concentrations. Nevertheless, the rise of the digital economy and the special features particular to this industry have brought significant challenges to competition authorities around the world, which have struggled assessing these transactions while applying traditional merger control institutes. Moreover, in the last years, strong technology undertakings have engaged in aggressive M&A strategies to acquire small innovative companies with competitive potential and with that, strengthen their dominant position in the market. Some of these transactions, also called “killer acquisitions”, are conducted with the sole purpose of discontinuing the target’s innovation projects and preempting future competition. Despite their evident negative effect on competition, most of them do not meet the notification turnover thresholds and therefore escape the scrutiny of the European Union and Member States’ merger control regime. This issue suggested a possible enforcement gap in the merger control rules, and for the past years, both European Commission (EC) and National Competition Authorities (NCAs) have tried to address the problem, until recently the EC took a step further regarding this matter. In March 2021, the European Commission published new guidance on the application of the referral mechanism set out in Article 22 of the EU Merger Regulation (EUMR) allowing for concentrations falling below national merger thresholds to be referred to the EC. The new approach, however, has shared opinions. This study aims to discuss the challenge of merger control in such digital markets and to analyze the new referral guidance designed as chosen method to solve this enforcement issue. Moreover, the
possible implications of this measure for undertakings planning to conclude M&A transactions in the European Market will be discussed. In order to get to the results, qualitative research will be conducted by analyzing the correspondent set of rules, literature, important cases, and M&A statistics.