Innovation Considerations in Merger Control and Unilateral Conduct Enforcement

Non price considerations in merger control and unilateral conduct enforcement have been elements of the competition authorities’ assessment in the last few decades. Recently a revamped emphasis on such factors and in particular on the importance of innovation has characterised the European Commission’s enforcement practice. The paper looks into merger control cases as well as two unilateral conduct cases (Microsoft and Google Shopping) and discusses the approach the European Commission has taken on the impact of concentrations as well as of abusive conducts on innovation. The paper argues that the approach the European Commission takes in assessing innovation in merger control is pragmatic and appropriate for dynamic competition that characterises innovative markets. In relation to the assessment of the harm on innovation in unilateral conduct cases, the paper emphasizes the need for a balanced approach that prevents an adverse impact on innovation incentives of the dominant company while at the same time maintains a robust approach to competition harm induced by abusive conducts