Positive Competition’s Founding Partners, Aleksandra and Xavier Boutin, took part in the Special policy sessions at the Competition and Regulation European Summer School and Conference (CRESSE) in Rhodes in June this year.

Aleksandra participated in the “Merger Policy in Dynamic Industries and Ecosystems” panel with Benoît Coeuré, the President of the Autorité de la concurrence, Pierre Regibeau, the Chief Economist of DG Competition of the European Commission, Cristina Caffarra (Keystone Strategy), Marc Ivaldi (Toulouse School of Economics, John Kwoka (Northeastern University), Laura-Lucia Richter (Google). The discussion was chaired by Tommaso Valletti (Imperial College London). The discussion concerned the question of whether the current competition law toolbox is suitable for merger control in complex and dynamic industries.

Aleksandra reflected on the lessons we can learn from past enforcement through the example of the Google/DoubleClick saga, especially in light of the recent abuse of dominance/monopolization investigations. She then also briefly reflected on Microsoft/Activision through these lessons learned from the past

Aleksandra concluded that, if applied correctly, the current competition toolbox still allows to assess mergers in complex and dynamic industries. This requires a forward looking assessment in nascent markets characterized by network effects where you consider how simultaneous self-preferencing on the different sides of the market can gradually change the markets over time, reducing residual competitive pressure. One should also reflect on how these network effects play out absent the merger. To know more about Aleksandra’s view on this topic, you can read her latest LinkedIn article here.

Xavier was featured in the topical panel “Vertical Mergers: New US Guidelines”. The panel focused on the Federal Trade Commission’s (FTC) withdrawal of the US Vertical Merger Guidelines in September 2021 and the long-awaited new Guidelines. The withdrawal followed a sequence of key events, including Lina M. Khan’s appointment as the new chair of the FTC and Joe Biden’s issuance of the “Executive Order on Promoting Competition in the American Economy”.

Xavier mentioned that differences between vertical and conglomerate mergers are often tenuous, espescially in digital markets where the input-output relationship is unclear. He insisted that guidelines should develop a unified framework for the assessment of offensive and defensive leverraging. Xavier stated that he did not believe that the elimination of double marginalisation was the main driver of most vertical mergers, such that the elimination of the presumption of efficiencies of vertical mergers was not, as such, problematic.  He then concluded that the guidelines should also reflect on the lessons from Organisation Theory, which provide much more robust procompetitive rationales for vertical and conglomerate mergers. Such aspects were most likely present in controversial cases like Illumina/Grail and Nvidia/Arm.