Digital Markets and Merger Control in the EU: Evolution not Revolution?

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The emergence of new business models, technologies and even markets creates particular challenges for antitrust enforcers, including when reviewing mergers. Tried and tested antitrust theories and practices may no longer withstand scrutiny in fast moving digital markets. Antitrust agencies may be tempted to develop novel theories of harm or seek additional powers to address real or perceived enforcement gaps. This article: (1) examines the proposal to introduce a new transaction value-based filing threshold in EU merger control to catch potentially market changing transactions that fail to meet the current turnover thresholds; (2) highlights the challenges faced by antitrust enforcers when defining markets and assessing market power in digital markets, including during merger reviews; and finally (3) concludes by discussing whether the European Commission’s (“Commission”) substantive merger assessment is able to keep in step with the advance of the digital economy.