Reinforcing EU merger control against the risks of acquisitions by big tech

Since 2000, online platforms that are now within the scope of the European Union's Digital Markets Act (DMA), have bought nearly 700 small, promising companies worldwide. However, only 19 of their attempted acquisitions were notified to the European Commission, the authority exercising merger control over deals with a substantive EU connection. In the other cases, the acquired target's turnover did not meet the conditions for merger notification. These acquisitions have happened in the context of digital markets becoming increasingly concentrated, leading to speculation that concentration levels might have been lower had some of those acquisitions not taken place. The harm that the concentration of market power in a handful of American digital companies may cause is magnified by the current position of the United States, which aims to shield platforms from regulatory enforcement. Acquisitions of small companies may have pro- or anti-competitive effects. Established market players may buy startups to become more competitive or to supply a higher quality product or service, ultimately benefitting final users. Mergers may also incentivise innovation and attract venture capital. However, incumbents might also acquire small companies with strategic, anti-competitive objectives. They might want to stop challengers to their market power from emerging in the future. Or they might acquire small companies to prevent competitors from relying on the target's supply to complement their competing products. Moreover, competition authorities struggle to make accurate predictions about the evolution of competitive dynamics in new and complex markets, such as digital markets. Authorities thus may be unable to take the correct decision, even if the merger is notified. Responding to these issues hinges on amending the DMA. The European Commission should be empowered to scrutinise any acquisition performed by the large platforms within the DMA scope (currently, the DMA requires these platforms to inform the Commission of any intended concentration, but envisages no other action). Moreover, the burden of proving that the merger is not harmful should be shifted to the large platforms. This would leverage market players' knowledge to help increase the accuracy of merger decisions in a highly dynamic and uncertain environment.