Merger review in digital and technology markets

Final Report

Prepared by

Merger review in

digital and technology markets:

Insights from national case law

Viktoria H.S.E. Robertson

Competition

EUROPEAN COMMISSION

Directorate-General for Competition

E-mail: comp-publications@ec.europa.eu

European Commission

B-1049 Brussels

[Catalogue number]

Merger review in

digital and technology markets:

Insights from national case law

Final report

(17 October 2022)

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may be held responsible for the use which may be made of the information contained therein.

More information on the European Union: https://european-union.europa.eu/index_en

Luxembourg: Publications Office of the European Union, 2022

Catalogue number: KD-04-22-317-EN-N

ISBN: 978-92-76-60451-8

DOI: 10.2763/847448

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Author: Viktoria H.S.E. Robertson

Professor and Head of the Competition Law and Digitalization Group at the Vienna University of

Economics and Business; Professor of International Antitrust Law at the University of Graz

Abstract

This Report contains an independent expert study on the national assessment of horizontal

and non-horizontal mergers in digital and technology markets. It analyses the substantive

assessment of digital and technology merger cases from selected EU Member States as

well as from a former Member State, the United Kingdom, against the background of the

growing concern about the market power of Big Tech. The Report identifies theories of

harm repeatedly relied upon in the national decisional practice, sets out remedies adopted

to address these competition concerns, and draws conclusions therefrom for merger

assessment in Europe.

Merger review in digital and technology markets: Insights from national case law  
 
 
2 
Table of contents 
Executive summary .......................................................................................................... 5 
I.  Introduction: Purpose and organisation of the Report ........................................ 11 
II.  Case selection ......................................................................................................... 14 
1.  Legal background ......................................................................................................... 14 
2.  Jurisdictions covered by the analysis .......................................................................... 14 
3.  Case selection criteria ................................................................................................... 15 
4.  Identification and analysis of cases .............................................................................. 18 
III.  A short primer on the law and economics applicable to digital merger control . 20 
1.  The nature of digital mergers....................................................................................... 20 
2.  Digital mergers and conglomerate theories of harm ................................................. 21 
3.  Digital mergers and digital ecosystems ....................................................................... 24 
4.  The appropriate legal framework for assessing digital mergers .............................. 25 
IV.  National digital and technology merger cases in selected EU Member States  
and the UK: Quantitative insights ....................................................................... 28 
V.  National digital and technology merger cases in selected EU Member States  
and the UK: Qualitative insights and mapping the theories of harm ................ 34 
1.  Horizontal theories of harm ......................................................................................... 34 
i.  Non-coordinated effects: Loss of an actual competitor.............................................. 35 
a.  Specificities of the theory of harm ................................................................................ 35 
b.  NCAs applying the theory of harm in digital and technology mergers ................... 35 
c.  Discussion ......................................................................................................................... 42 
ii.  Coordinated effects ..................................................................................................... 45 
a.  Specificities of the theory of harm ................................................................................ 45 
b.  NCAs applying the theory of harm in digital and technology mergers ................... 45 
c.  Discussion ......................................................................................................................... 45 
iii.  Loss of a potential competitor – non-coordinated or coordinated effects ................. 46 
a.  Specificities of the theory of harm ................................................................................ 46 
b.  NCAs applying the theory of harm in digital and technology mergers ................... 46 
c.  Discussion ......................................................................................................................... 49 
iv.  Other horizontal theories of harm .............................................................................. 50 
a.  Specificities of the theory of harm ................................................................................ 50 
b.  NCAs applying the theory of harm in digital and technology mergers ................... 50 
c.  Discussion ......................................................................................................................... 52 
2.  Vertical theories of harm .............................................................................................. 52 
i.  Non-coordinated effects: Input foreclosure ................................................................ 53 
a.  Specificities of the theory of harm ................................................................................ 53 
b.  NCAs applying the theory of harm in digital and technology mergers ................... 53 
c.  Discussion ......................................................................................................................... 59 
 

Merger review in digital and technology markets: Insights from national case law  
 
 
3 
ii.  Non-coordinated effects: Customer foreclosure......................................................... 61 
a.  Specificities of the theory of harm ................................................................................ 61 
b.  NCAs applying the theory of harm in digital and technology mergers ................... 61 
c.  Discussion ......................................................................................................................... 63 
iii.  Other non-coordinated effects .................................................................................... 64 
a.  Specificities of the theory of harm ................................................................................ 64 
b.  NCAs applying the theory of harm in digital and technology mergers ................... 64 
c.  Discussion ......................................................................................................................... 65 
iv.  Coordinated effects ..................................................................................................... 66 
a.  Specificities of the theory of harm ................................................................................ 66 
b.  NCAs applying the theory of harm in digital and technology mergers ................... 66 
3.  Conglomerate theories of harm ................................................................................... 66 
i.  Non-coordinated effects: Foreclosure ........................................................................ 66 
a.  Specificities of the theory of harm ................................................................................ 66 
b.  NCAs applying the theory of harm in digital and technology mergers ................... 67 
c.  Discussion ......................................................................................................................... 72 
ii.  Coordinated effects ..................................................................................................... 73 
a.  Specificities of the theory of harm ................................................................................ 73 
b.  NCAs applying the theory of harm in digital and technology mergers ................... 73 
iii.  Other effects ................................................................................................................ 73 
a.  Specificities of the theory of harm ................................................................................ 73 
b.  NCAs applying the theory of harm in digital and technology mergers ................... 73 
c.  Discussion ......................................................................................................................... 74 
4.  Theories of harm largely absent in the decisional practice ....................................... 74 
i.  Building and reinforcing a digital ecosystem ............................................................. 74 
ii.  Data advantages ......................................................................................................... 77 
iii.  Concentration and abuse of dominance ..................................................................... 79 
5.  Remedies ........................................................................................................................ 80 
i.  Structural remedies..................................................................................................... 81 
ii.  Behavioural remedies: access and interoperability ................................................... 82 
iii.  Further types of behavioural remedies ....................................................................... 83 
iv.  Discussion ................................................................................................................... 86 
6.  Prohibition decisions ..................................................................................................... 88 
VI.  Conclusions ............................................................................................................ 91 
References ...................................................................................................................... 94 
Table of legislation and soft law documents ................................................................. 99 
European Union legislation ................................................................................................... 99 
National legislation ................................................................................................................ 99 
European Union soft law ....................................................................................................... 99 
National soft law .................................................................................................................. 100 
Table of cases ............................................................................................................... 101 
Australia ............................................................................................................................... 101 

Merger review in digital and technology markets: Insights from national case law  
 
 
4 
Austria .................................................................................................................................. 101 
Bulgaria ................................................................................................................................ 101 
China ..................................................................................................................................... 101 
Cyprus ................................................................................................................................... 101 
Czechia .................................................................................................................................. 101 
Estonia .................................................................................................................................. 102 
European Union ................................................................................................................... 102 
France ................................................................................................................................... 103 
Germany ............................................................................................................................... 103 
Greece ................................................................................................................................... 104 
Hungary ................................................................................................................................ 104 
Ireland ................................................................................................................................... 104 
Italy  ....................................................................................................................................... 105 
Malta ..................................................................................................................................... 105 
Netherlands .......................................................................................................................... 105 
Poland ................................................................................................................................... 105 
Portugal ................................................................................................................................ 105 
Romania ................................................................................................................................ 105 
Singapore .............................................................................................................................. 106 
Slovenia ................................................................................................................................. 106 
Spain ..................................................................................................................................... 106 
Sweden .................................................................................................................................. 106 
United Kingdom ................................................................................................................... 106 
United States ........................................................................................................................ 108 
List of figures ............................................................................................................... 109 
Annex I: 97 national cases on digital and technology mergers, coded by outcome . 110 
Annex II: 69 particularly relevant national cases on digital and technology  
mergers, coded by theories of harm ................................................................... 115 
Annex III: Concise summaries of 69 national cases on digital and technology 
mergers ............................................................................................................... 120 
 
   

Merger review in digital and technology markets: Insights from national case law

Executive summary

In the present Report, I provide an independent expert study on the assessment of

horizontal and non-horizontal mergers in digital and technology markets, commissioned

by the European Commission. I analyse the substantive assessment of digital and

technology merger cases from selected European Union (EU) Member States as well as

from a former Member State, the United Kingdom, against the background of the growing

concern about the market power of Big Tech. Due to the one-stop-shop principle

contained in the EU Merger Regulation 139/2004, it is possible that national merger

control and EU merger control may not be as aligned as the law and practice on anti-

competitive agreements and abuses of a dominant position. While this can give rise to

inconsistencies, it can also represent a learning opportunity to allow for best practices on

digital mergers to emerge.

I organised the Report as follows: After an introduction setting out the purpose of the

Report (Chapter I), I provide an insight into the way in which the national cases that

constitute the basis for this Report were selected (Chapter II). Then, I give a brief

overview of the law and economics applicable to digital mergers (Chapter III). Chapter

IV contains first quantitative insights from the analysis of 97 national cases. Chapter V

contains the main body of the Report and provides qualitative insights from the in-depth

analysis of 69 national digital and technology merger cases in selected EU Member States

and the United Kingdom. It focuses on theories of harm relied upon and remedies adopted

by national competition authorities. Chapter VI concludes. The Annex contains a list of

all 97 national cases analysed for this Report (Annex I), as well as a detailed coding of

69 national cases as concerns the theories of harm addressed and the remedies adopted

(Annex II). Annex III contains concise case summaries of the 69 national cases on digital

and technology mergers.

The present Report is based on a selected number of national merger cases in digital

and technology markets. Case selection criteria included the jurisdiction in which the

case was decided (EU Member State or United Kingdom), the relevant timeframe (1

January 2015 to 31 December 2021), and the digital or technology nature of the case. In

order to identify the latter, criteria such as lists of digital companies, NACE codes and

the relevant market of a case were relied upon (Chapter II).

While digital mergers are often associated with Big Tech, the digitalisation of all

aspects of business and private life has meant that digital markets and digital mergers

have proliferated. Digital platforms are building ever more comprehensive digital

ecosystems, and the question arises whether merger control is flexible enough to meet the

new anti-competitive threats that digital mergers bring with them (Chapter III).

97 national digital and technology merger cases from 19 different EU Member States

and the United Kingdom, from the time period 1 January 2015 to 31 December 2021,

were assessed for the present Report (Chapter IV). A number of quantitative insights

can be drawn from this analysis. Of the 97 cases identified, 74 were unconditionally

cleared (65 in phase 1, 9 in phase 2), 15 cases were cleared subject to conditions (10 in

phase 1, 5 in phase 2), 6 concentrations were prohibited, one was withdrawn following

the national competition authority voicing serious competition concerns, and in one case

Merger review in digital and technology markets: Insights from national case law

merger control was found to be inapplicable. The ratio of unconditionally cleared to

conditionally cleared or prohibited mergers already provides a first indication that most

digital and technology mergers are understood to be unproblematic by national

competition authorities.

Of the 97 cases identified, 69 cases were selected for an in-depth analysis – including

all cases that were conditionally cleared, reached phase 2, or were prohibited or

withdrawn. Based on their relevance for this Report, a number of unconditionally cleared

cases were also included in this sample. It is notable that of the 69 mergers, 30 cases (i.e.,

over 40%) exclusively assessed horizontal effects. A further 18 cases assessed horizontal

and vertical effects, while 5 cases only assessed vertical effects. 8 cases assessed

horizontal and conglomerate effects, 3 cases assessed vertical and conglomerate effects,

and 2 cases only assessed conglomerate effects. A total of 3 cases assessed horizontal,

vertical and conglomerate effects.

67%

11%

97 national merger cases, by outcome

Unconditional clearance in phase 1

Unconditional clearance in phase 2

Conditional clearance in phase 1

Conditional clearance in phase 2

Prohibition

Withdrawal

Non-applicability

44%

26%

12%

69 national merger cases,

by theories of harm

Only horizontal theories of harm

Horizontal and vertical theories of harm

Horizontal and conglomerate theories of

harm

Horizontal, vertical and conglomerate

theories of harm

Only vertical theories of harm

Vertical and conglomerate theories of harm

Only conglomerate theories of harm

Merger review in digital and technology markets: Insights from national case law

Of the 6 cases in which concentrations were prohibited, all cases assessed horizontal

effects, and in addition, 4 assessed vertical foreclosure effects. None assessed any

conglomerate effects. Of the 16 cases in which concentrations were conditionally cleared,

8 only related to horizontal effects and 2 only related to vertical effects. 2 further cases

related to horizontal and vertical effects, while 2 cases only related to vertical and

conglomerate effects. 2 conditional clearances related to conglomerate effects only. These

quantitative insights highlight that while conglomerate theories of harm have taken centre

stage in discussions about digital mergers, the merger practice across the European Union

is either still lagging behind these theoretical insights – or horizontal effects continue to

represent the number one concern in digital merger control.

69 national digital and technology merger cases in selected EU Member States and the

United Kingdom were relied upon for an in-depth, qualitative analysis. These cases

cover 17 different jurisdictions. To allow for more detailed insights, theories of harm were

categorised along the lines of horizontal effects (loss of an actual competitor, loss of a

potential competitor, coordinated effects, other horizontal effects), vertical effects (input

foreclosure, customer foreclosure, other vertical non-coordinated effects, coordinated

effects) and conglomerate effects (foreclosure, other conglomerate effects). It was notable

that a total of 51 cases raised issues related to the loss of an actual competitor on the

relevant market, and 9 of these mergers were cleared subject to conditions, 4 were

prohibited and one was withdrawn. Where the clearance of a merger was subject to

commitments, the latter sometimes played a role again in later cases (Just Eat/La Nevera

Roja, ES 2016). It was seen how digital markets can differ from country to country,

depending on the success of individual national platforms (e.g., see the analysis of

eBay/Adevinta in the UK, Germany and Austria, all 2021). The presence of Big Tech

companies such as Alphabet, Amazon, Apple, Meta or Microsoft was repeatedly held to

constitute an important factor when concluding that a digital acquisition by a non-Big

Tech company did not raise competition concerns. In already concentrated online

markets, NCAs would sometimes welcome a merger because it could mean that the

market would not tip. Multi-homing by users or customers was equally seen as a ‘natural’

remedy against market tipping.

The loss of a potential competitor was brought up in 6 cases, of which 5 came from

the UK. Recently, this theory of harm was tested both before Austrian and UK courts in

the merger of Meta/Giphy (AT 2022; UK 2022). The concern here was that the acquisition

could stifle potential competition between Meta (formerly: Facebook) and GIF library

Giphy for advertising clients, as Giphy had rolled out a promising advertising service

prior to the acquisition that allowed it to monetise its services – and that could have

competed with Meta’s display advertising. While the UK Competition Appeal Tribunal

upheld the national authority’s prohibition of the merger on substance, the Austrian

Supreme Cartel Court upheld the Austrian Cartel Court’s conditional clearance of the

same concentration.

Input foreclosure was the most relied-upon vertical theory of harm in all cases

analysed. 27 cases related to this type of concern. The Swedish Swedbank

Franchise/Svensk Fastighetsförmedling case (SE 2014) about online property portal

Merger review in digital and technology markets: Insights from national case law

Hemnet led to the first Swedish prohibition of a merger, also due to a concern about input

foreclosure. The Slovenian merger of Sully System/CENEJE (SI 2018) was only cleared

after commitments, as the authority was concerned that there might be input foreclosure

related to both online advertising through search engines and online price comparison. In

several cases, however, the national competition authorities concluded that vertical input

foreclosure was not a credible theory of harm based on the low market shares post-merger

and/or the competitive constraint expected from competitors that would remain active on

either the upstream or the downstream markets.

Customer foreclosure was assessed in 11 national cases. In CTS Eventim/Four Artists

(DE 2017), the German authority prohibited an acquisition based on the finding that it

would (also) have further strengthened customer foreclosure. In a further case involving

CTS Eventim (AT 2019), the Austrian authority was concerned that, post-merger, the

merged entity could engage in customer foreclosure by providing its ticketing services at

above market prices to companies outside of the CTS Eventim group. This concentration

was cleared subject to conditions. The presence of a sufficient number of competitors on

one of the relevant markets was regularly seen as a factor that could mitigate vertical

effects. Low turnover was also sometimes seen as hindering a company’s ability to

foreclose competitors.

In terms of other vertical theories of harm, the Czech authority was concerned that,

post-merger, comparison shopping site Heureka.cz could ask Rockaway’s online shops

to collect excessive amounts of data about their users, data that could then be used in the

interest of Rockaway Capital’s businesses (Rockaway Capital/Heureka, CZ 2016). In a

number of cases, the national authority also considered whether the acquirer would have

access to commercially sensitive information about competitors post-merger

(esure/Gocompare.com case, UK 2015; Sully System/CENEJE, SI 2018; Sanoma/Iddink,

NL 2019; Uber International/GPC Computer Software, UK 2021).

Conglomerate foreclosure was by far the most frequently relied-upon conglomerate

theory of harm, assessed in 15 cases. In Rockaway Capital/Heureka, the Czech authority

was concerned that, post-merger, comparison shopping site Heureka.cz would give

preferential treatment to online businesses already controlled by the acquirer (CZ 2016).

Bundling strategies combining the previously separate offerings of target and acquirer

were also regularly assessed, with a view to identifying whether or not this type of

strategy would actually be beneficial to the market. In one case, the waning importance

of an offline market meant that no harm was seen in a likely online/offline bundle (Axel

Springer/Concept Multimédia, FR 2018). Advanced Micro Devices/Xilinx (UK 2021) was

one of only two cases that exclusively focused on conglomerate effects, with no

conditions imposed. In Delivery Hero (EL 2022), an acquisition in the area of online food

platforms was only cleared subject to conditions based on conglomerate competition

concerns.

Notably, any detailed consideration of digital ecosystems remained largely absent

from the theories of harm examined in the 69 merger cases that were analysed in-depth.

While Meta/Kustomer (DE 2022) outlined conglomerate concerns related to the

strengthening of a digital ecosystem through the acquisition, the national authority

ultimately cleared it unconditionally. Competition concerns in today’s digital markets

Merger review in digital and technology markets: Insights from national case law

may arise not so much because of well-defined competition issues arising in specific

relevant markets, and perhaps not even because of every single small merger that is

completed. Instead, competition concerns related to digital platforms can arise from the

combined effects of these mergers in multi-sided markets with strong network effects,

with a great many markets concerned. Furthermore, data advantages that are acquired

through a merger also require careful consideration. Data capabilities – relating to both

personal data and non-personal data – are central to success in many digital markets and

can therefore also represent a significant competitive advantage to digital platforms

operating across a diverse set of markets. In recent years, multiple aspects of access and

use of data as well as of data integration and data protection have come into play in digital

merger cases. What matters now is to consolidate the lessons learned from these analyses

in order to develop a coherent approach to assessing data aspects in digital merger control.

Finally, a more coherent interaction between merger control and abuse of dominance

in digital markets also seems like a promising avenue in order to make competition law

an even more useful tool to grasp competition concerns in digital mergers.

15 national cases involved remedies that addressed the competition concerns raised

by the national competition authority. A small number of national cases included

structural remedies, namely the divestiture of parts of a business (e.g., Dante

International/PC Garage, CZ 2016; Pug/StubHub, UK 2021; Adevinta/eBay Classifieds

Group, UK 2021). In terms of behavioural remedies, these were found much more often.

First of all, in terms of access and interoperability remedies, such were required in a

number of cases (e.g., CTS Eventim/Barracuda Holding, AT 2019; Sanoma/Iddink, NL

2019; NS Groep/Pon Netherlands, NL 2020; Meta/Giphy, AT 2022). Licenses were also

among proposed remedies that could be categorised as a sort of access remedy

(Schibsted/Milanuncios, ES 2014; not accepted in Blocket/Hemnet, SE 2016). Secondly,

a broad range of other types of behavioural remedies could be observed, including the

promise not to impose exclusivity obligations on trading partners (e.g., Just Eat/La

Nevera Roja, ES 2016; CTS Eventim/Barracuda Holding, AT 2019;

Glovoappro/Foodpanda, RO 2021), the promise not to gather excessive data (e.g.,

Rockaway Capital/Heureka, CZ 2016), or the commitment not to discriminate between

trading partners (e.g., Sully System/CENEJE, SI 2018; Meta/Giphy, AT 2022). Only two

cases on conglomerate concerns included a remedy; in Rockaway Capital/Heureka (CZ

2016), the acquirer proposed to include a clear link between Heureka.cz and other

Rockaway Capital activities on the website, and committed not to discriminate against

independent sellers. In Delivery Hero (EL 2022), the acquirer committed not to bundle

food-ordering services with restaurant-reservation, and not to use data from a platform

for targeted advertising on another absent the users’ consent.

A total of 6 concentrations were prohibited. Overall, the picture on prohibitions of

digital mergers is rather straightforward: apart from the special Hungarian case based on

media law (Magyar RTL Televízió/Central Digitális Média, HU 2017), all prohibitions

related to the loss of an actual competitor (plus, in one case, vertical customer foreclosure)

or the loss of a potential competitor plus vertical input foreclosure. This shows that

horizontal theories of harm continue to be regarded as the most credible threat to

Merger review in digital and technology markets: Insights from national case law

competitive markets, also in digital environments, despite topical research showing that

conglomerate (and vertical) effects resulting from digital mergers merit closer scrutiny.

In Europe, national merger cases in digital and technology markets have proliferated

in recent years. The comparison carried out in this Report has found that the analysis by

national competition authorities still very much runs along the traditional lines of

horizontal – vertical – conglomerate effects. For the future, it could be useful to frame

theories of harm more in line with the complex and interrelated market realities that we

find in the digital environment, and thereby obtain a clearer view of the three issues that

have, so far, only been assessed in a smaller number of national cases: digital ecosystems,

data advantages and the interaction of mergers with abuse of dominance. A review of the

national decisional practice on digital and technology mergers against the background of

the European decisional practice, such as the one carried out in this Report, may be a good

starting point for further developing merger control in Europe and beyond in order to

enable it to fully capture the anti-competitive effects that certain digital mergers are

capable of producing.

Merger review in digital and technology markets: Insights from national case law

I. Introduction: Purpose and organisation of the Report

(1) The present Report reviews digital

and technology

mergers in selected European

Union (EU) Member States and in the former EU Member State of the United

Kingdom and assesses the theories of harm that were identified by national

competition authorities (NCAs) in such cases. By focusing on the developing

decisional practice in digital and technology mergers at the national level, the

Report intends to provide a broad basis for the Commission’s reflection in relation

to the review of digital and technology mergers.

(2) The Call for Tenders requires that the expert advice should cover the following

issues:

(i) an identification of theories of harm devised in the decisional practice

and the concrete risks identified by NCAs,

and

(ii) an identification of remedies adopted by NCAs to solve these competition

concerns.

(3) Theories of harm are here understood as ‘hypothes[e]s about how the process of

rivalry could be harmed as a result of a merger’.

Depending on the type of merger

under investigation, a theory of harm may relate to horizontal effects, vertical

effects or conglomerate effects.

(4) I was commissioned by the European Commission to provide the expert Report

sought by its Call for Tenders, and hereby present my Report.

(5) In preparation of this Report, I have reviewed:

• the decisional practice on digital and technology mergers of NCAs of selected

Member States of the EU as well as of the United Kingdom as a former EU

Member State,

• the decisional practice of the European Commission on digital and technology

mergers,

• relevant guidance on digital and technology mergers, and

• relevant academic literature.

(6) Based on a review of hundreds of cases from all EU jurisdictions plus the United

Kingdom, I compiled a sample of 97 national merger cases from 19 jurisdictions

that I coded by outcome. Of these, I ultimately selected a sample of 69 national

cases from 17 jurisdictions for an in-depth analysis (for case selection criteria, see

Chapter II below). The Report categorises these national cases based on the types

of competition concerns that arose in digital and technology mergers

(‘mapping’). For each type of concern, I provide a general overview of the

relevant issues, give a quantitative assessment of national cases relating to the type

of concern, and then provide a more detailed qualitative analysis. In terms of the

For a definition of what includes digital mergers, see para (19) below.

For a definition of what includes technology mergers, see para (20) below.

The term NCA is here understood within the meaning of Article 35 of Regulation 1/2003, meaning that

certain national courts (eg, the Austrian Cartel Court) will also be regarded as NCAs for the purposes of

this Report.

Competition & Markets Authority, Merger Assessment Guidelines (CMA129, 18 March 2021) para 2.11.

Merger review in digital and technology markets: Insights from national case law

qualitative analyses, I describe the concrete conduct, strategy or behaviour

concerned in the most relevant national cases identified, and include references to

the relevant case law and decisional practice from a comparative perspective. In

addition, for each issue and relevant illustrative case, I provide an indication of

the outcome of the merger review conducted at the national level. Competition

concerns identified by NCAs are examined and put into the context of both the

European Commission’s decisional practice and academic research on digital and

technology mergers.

(7) Where commitments or other remedies were adopted or imposed, I describe,

where available, the type of measure adopted, the main terms, ancillary

requirements, enforcement mechanisms, and duration.

(8) Concerning theories of harm, the Call for Tenders provides that the Report should

include both horizontal and non-horizontal theories of harm. As regards horizontal

theories of harm, a focus of the Report lies on identifying whether NCAs’

assessment of the mergers included competitive concerns because the buyer

viewed the target as a potential threat and bought it to either discontinue the

target’s innovation (‘killer acquisition’)

or incorporate it into its own portfolio

(‘zombie acquisition’). It is also assessed to what extent the importance of

acquiring data through a merger was considered by NCAs.

(9) As regards non-horizontal theories of harm, the focus of the Report lies on

identifying whether NCAs’ assessment of the mergers included competitive

concerns because of vertical or conglomerate effects that the mergers could entail.

Here, possibilities include the risk of foreclosing (potential) competitors in

various ways, eg through the degradation of interoperability or refusal to supply.

(10) The Report is structured as follows: Chapter II gives an insight into the way in

which national cases were selected, as these constitute the basis for this Report.

Chapter III sets the scene by providing an overview of the law and economics

applicable to digital mergers as discussed in the academic literature. Chapter IV

contains quantitative insights from the analysis of 97 national digital and

technology merger cases in selected Member States of the EU and in the United

Kingdom. Chapter V contains qualitative insights from the analysis of 69 national

digital and technology merger cases in selected Member States of the EU and in

the United Kingdom. It discusses various theories of harm and how they were

applied in national cases, and links them to the European decisional practice.

Chapter VI provides concise conclusions.

(11) In Annex I, I provide an overview of those 97 national cases that I consider

particularly instructive for this Report, coded by the outcome of the case. In Annex

II, I provide a list of those 69 cases that I found to be most relevant for the present

Report based on the case selection criteria (Chapter II), and each case is coded

On this term, which was coined in relation to mergers and acquisitions in the pharmaceutical industry, see

Colleen Cunningham, Florian Ederer & Song Ma, ‘Killer Acquisitions’ (2021) 129 Journal of Political

Economy 649.

Merger review in digital and technology markets: Insights from national case law

based on the theories of harm employed in that decision. In Annex III, I provide

concise summaries of those 69 merger cases.

Merger review in digital and technology markets: Insights from national case law

II. Case selection

(12) The following sets out the way in which national cases were selected for this

Report.

1. Legal background

(13) Based on the one-stop-shop principle of the European Union Merger Regulation

(Article 21 EUMR),

EU merger control under the auspices of the European

Commission exclusively applies to mergers that come within the jurisdiction of

the EUMR. Article 3 EUMR foresees turnover-based thresholds to decide on the

Commission’s jurisdiction.

(14) Under Article 4 para 5 EUMR, merging parties whose merger would be notifiable

in at least three Member States may make a reasoned submission asking the

Commission to review the merger. This has occurred in digital mergers.

Referrals

from NCAs (Article 22 EUMR) can equally lead to the European Commission

assessing a merger, as has occurred in digital markets.

In the case of an Article

22 EUMR referral, the Commission can review the merger with respect to the

markets of the referring Member State(s).

(15) While the EUMR relies on different turnover thresholds in order to separate

notifiable mergers from those that do not come within the purview of EU merger

control, some national merger control regimes – such as the Austrian

and

German

one – have introduced additional transaction value-based thresholds

that require the notification of a merger if the acquirer’s payment for the target

exceeds a certain amount.

2. Jurisdictions covered by the analysis

(16) The literature on digital and technology mergers is frequently focused on cases at

the level of the European Union,

or compares the EU and US approaches to

digital mergers.

While this focus is justified based on the overall importance of

Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between

undertakings (EUMR) [2004] OJ L24/1.

Eg, see European Commission Decision of 3 October 2014, COMP/M.7217 – Facebook/WhatsApp.

Although this is a rare occurrence, the recent Meta/Kustomer merger was assessed in parallel by the

European Commission, following an Article 22 EUMR referral from Austria, and by the German

Bundeskartellamt; see European Commission Decision of 27 January 2022, M.10262 – Meta/Kustomer;

Bundeskartellamt, Meta/Kustomer (B6-21/22, 11 February 2022).

See European Commission, Commission Guidance on the application of the referral mechanism set out

in Article 22 of the Merger Regulation to certain categories of cases [2021] OJ C113/1, para 11 fn 12.

§ 9 para 4 Cartel Act, Austrian Federal Law Gazette I 61/2005 as amended.

§ 35 para 1a Act against Restraints of Competition, German Federal Law Gazette I 2013/1750 as

amended.

Marc Bourreau and Alexandre de Streel, ‘Digital Conglomerates and EU Competition Policy’ (CERRE

Report, March 2019); Tristan Lécuyer, ‘Digital Conglomerates and Killer Acquisitions – A Discussion of

the Competitive Effects of Start-Up Acquisitions by Digital Platforms’ (N° 1-2020) Concurrences 42.

Yong Lim, ‘Tech Wars: Return of the Conglomerate – Throwback or Dawn of a New Series for

Competition in the Digital Era?’ (2020) 19 Journal of Korean Law 47, 57 (speaking of ‘data-driven network

effects’). Sometimes, the UK’s approach to digital mergers is incorporated into the analysis: Anne C. Witt,

‘Who’s Afraid of Conglomerate Mergers’ (2022) 67 Antitrust Bulletin 208.

Merger review in digital and technology markets: Insights from national case law

these two jurisdictions, it nevertheless risks overlooking important developments

in national merger control in EU Member States and misses out on obtaining a

broader picture on digital merger control. With the present Report, I intend to

bridge this gap by analysing digital and technology merger cases from a wider

scope of jurisdictions within the European Union, including the United Kingdom

as a former Member State.

3. Case selection criteria

(17) Cases analysed were chosen based on the following criteria:

(a) the jurisdiction in which the case was decided (EU Member State or United

Kingdom),

(b) the timeframe in which the decision was rendered (1 January 2015 to 31

December 2021), and

(18) The timeframe of the Report spans 7 years, from 1 January 2015 to 31 December

2021, with a particular focus on cases emerging over the past five years. This is

due to the fact that digital mergers have proliferated during that time. Furthermore,

the premise is that the most recent cases can give the most profound insights into

adaptations in the substantive merger analysis. A small number of cases were

included that were decided prior to 1 January 2015 or after 31 December 2021,

due to a particular interest in the analysis that was carried out therein.

(19) Digital merger cases can be enormously varied. This is due to several factors.

First of all, a large number of traditional in-person services are moving online.

Second, digital platforms are intensifying their conglomeration strategies,

meaning they are moving into very varied markets ranging from movie production

to restaurant guides. In order to establish which cases should be regarded as

‘digital’ and thus assessed for this Report, a number of selection criteria were

established from multiple angles:

a) Did the case include a well-known digital platform operator? Companies in

this category included Adobe, Alphabet, Airbnb, Amazon, Apple, Activision

Blizzard, Booking.com, Deliveroo, eBay, Facebook, Google, Intuit, Meta,

Microsoft, Netflix, PayPal, Rakuten, Salesforce, Spotify, and Uber. In order

to compile this list, both the Forbes ‘Top 100 Digital Companies’ list

and

European case law

were relied upon. The focus was on digital services

Forbes, Top 100 Digital Companies <https://www.forbes.com/top-digital-companies/list/3/#tab:rank>.

Telecoms were excluded for the purposes of this Report.

In particular, decisions related to Big Tech were regarded as relevant. Big Tech is here understood as the

GAFAM companies, ie Google (Alphabet), Apple, Amazon, Facebook (Meta) and Microsoft.

Meta (formerly Facebook): European Commission Decision of 27 January 2022, M.10262 –

Meta/Kustomer (NACE M.73.1 - Advertising, J.62 - Computer programming, consultancy and related

activities, J.61.9 - Other telecommunications activities, J.63.12 - Web portals; Article 8(2) with conditions

& obligations; referral from Austria, Belgium, Bulgaria, France, Iceland, Italy, Ireland, the Netherlands,

Portugal and Romania – Germany carried out its own investigation); European Commission Decision of 3

October 2014, COMP/M.7217 – Facebook/WhatsApp (NACE M.73.1 - Advertising, J.62.09 - Other

Merger review in digital and technology markets: Insights from national case law

rather than hardware, although several digital platform providers have moved

into offering hardware as well. These cases are covered by the ‘technology’

category (see below).

b) What was the NACE code related to the case? NACE codes that were

included in the digital category were identified through a comprehensive case

search of all the Big Tech mergers that the European Commission has

investigated to date.

NACE codes that were understood to be particularly

relevant included ‘web portals’, ‘computer programming activities’, ‘data

information technology and computer service activities, J.61.9 - Other telecommunications activities;

Article 6(1)(b) Non-opposition; assessed under Article 4(5) EUMR).

Alphabet (formerly Google): European Commission Decision of 17 December 2020, M.9660 –

Google/Fitbit (NACE J.62.01 - Computer programming activities, C.26.4 - Manufacture of consumer

electronics, J.58.2 - Software publishing, J.63.12 - Web portals; Art. 8(2) with conditions & obligations);

European Commission Decision of 23 February 2016, M.7813 – Sanofi/Google/DMI JV (NACE C.21 -

Manufacture of basic pharmaceutical products and pharmaceutical preparations, C.32.5 - Manufacture of

medical and dental instruments and supplies, Q.86.9 - Other human health activities; Article 6(1)(b) Non-

opposition); European Commission Decision of 13 February 2012, COMP/M.6381 – Google/Motorola

Mobility (NACE C.26.30 - Manufacture of communication equipment, J.61 - Telecommunications, J.61.20

- Wireless telecommunications activities; Article 6(1)(b) Non-opposition); European Commission Decision

of 11 March 2008, COMP/M.4731 – Google/DoubleClick (NACE M.73.1 – Advertising; Article 8(1)

Compatibility).

Apple: European Commission Decision of 6 September 2018, M.8788 – Apple/Shazam (NACE M.73.1 –

Advertising, J.62 - Computer programming, consultancy and related activities, J.63.1 - Data processing,

hosting and related activities, web portals, J.63 - Information service activities; Article 8(1) Compatibility;

referral from Austria, France, Iceland, Italy, Norway, Spain and Sweden); European Commission Decision

of 25 July 2014, COMP/M.7290 – Apple/Beats (NACE C.26.4 - Manufacture of consumer electronics,

J.58.29 - Other software publishing; Article 6(1)(b) Non-opposition).

Microsoft: European Commission Decision of 21 December 2021, M.10290 – Microsoft/Nuance (NACE

J.62 - Computer programming, consultancy and related activities; Article 6(1)(b) Non-opposition);

European Commission Decision of 5 March 2021, M.10001 – Microsoft/Zenimax (NACE J.58.21 -

Publishing of computer games; Article 6(1)(b) Non-opposition); European Commission Decision of 19

October 2018, M.8994 – Microsoft/GitHub (NACE J.62.01 - Computer programming activities, J.63.1 -

Data processing, hosting and related activities, web portals; Article 6(1)(b) Non-opposition); European

Commission Decision of 6 December 2016, M.8124 – Microsoft/LinkedIn (NACE J.62 - Computer

programming, consultancy and related activities, J.63.12 - Web portals; Article 6(1)(b) with conditions &

obligations); European Commission Decision of 4 December 2012, COMP/M.7047 – Microsoft/Nokia

(NACE C.26.3 - Manufacture of communication equipment; Article 6(1)(b) Non-opposition); European

Commission Decision of 10 February 2012, COMP/M.6474 – GE/Microsoft/JV (NACE J.62 - Computer

programming, consultancy and related activities; Article 6(1)(b) Non-opposition); European Commission

Decision of 7 October 2011, COMP/M.6281 – Microsoft/Skype (NACE J.63 - Information service

activities; Article 6(1)(b) Non-opposition) (upheld in Case T-79/12 Cisco Systems and Messagenet v

Commission, ECLI:EU:T:2013:635); European Commission Decision of 18 February 2010,

COMP/M.5727 – Microsoft/Yahoo! Search Business (NACE J.63.1 - Data processing, hosting and related

activities, web portals; Article 6(1)(b) Non-opposition). Most recently, Microsoft has announced its

acquisition of game developer Activision Blizzard, and a merger filing can be expected in this case: Pietro

Lombardi and Samuel Stolton, ‘Microsoft heads for second big EU showdown — this time over gaming’

Politico (24 January 2022) <https://www.politico.eu/article/microsoft-activision-eu-showdown-video-

game/>.

Amazon: European Commission Decision of 15 March 2022, M.10349 – Amazon/MGM (NACE J.59 -

Motion picture, video and television programme production, sound recording and music publishing

activities; Article 6(1)(b) Non-opposition).

On these, see footnote 15 above.

Merger review in digital and technology markets: Insights from national case law

processing, hosting and related activities’ and ‘computer programming,

consultancy and related activities’.

c) Was the relevant market relied upon in the case related to digital markets?

The following keywords were used as an indicator: AdTech, API, app,

application, cloud computing, display advertising, internet, Internet of

Things/IoT, marketplace, online advertising, online betting/gaming, online

communication services, personalised advertising, platform, price

comparison, software, wearable.

d) Exclusion criteria: Cases involving traditional media were excluded, unless

they primarily related to social media. Broadcasting and pay-TV cases were

also excluded.

(20) Technology merger cases were included as an additional category of cases. The

following selection criteria were established from multiple angles:

a) Did the case include a well-known high-tech company? Companies in this

category included AMD, Broadcom, Cisco, Dell, Ericsson, Huawei, IBM,

Intel, Lenovo, LG Electronics, NEC, Nintendo, Nvidia, NXP

Semiconductors, ON Semiconductor, Oracle, Qualcomm, Samsung, SAP,

Taiwan Semiconductor, Xiaomi, and ZTE. In order to compile this list, the

Forbes ‘Top 100 Digital Companies’ list,

the Thomson Reuters ‘Top 100

Global Tech Leaders’ list

and European case law

were relied upon. The

In particular, the following NACE codes were identified (if appearing in more than one case, the NACE

code is set in italics):

C.21 - Manufacture of basic pharmaceutical products and pharmaceutical preparations

C.26.3 - Manufacture of communication equipment

C.26.4 - Manufacture of consumer electronics

C.32.5 - Manufacture of medical and dental instruments and supplies

J.58.2 - Software publishing

J.58.21 - Publishing of computer games

J.58.29 - Other software publishing

J.59 - Motion picture video and television programme production, sound recording and music publishing

activities

J.61 - Telecommunications

J.61.20 - Wireless telecommunications activities

J.61.9 - Other telecommunications activities

J.62 - Computer programming, consultancy and related activities

J.62.01 - Computer programming activities

J.62.09 - Other information technology and computer service activities

J.63 - Information service activities

J.63.1 - Data processing, hosting and related activities, web portals

J.63.12 - Web portals

M.73.1 - Advertising

Q.86.9 - Other human health activities

Forbes, Top 100 Digital Companies <https://www.forbes.com/top-digital-companies/list/3/#tab:rank>.

Thomson Reuters, Top 100 Global Tech Leaders <https://www.thomsonreuters.com/en/products-

services/technology/top-100.html>.

AMD: European Commission Decision of 30 June 2021, COMP/M.10097 – Advanced Micro

Devices/Xilinx (NACE C.26.1 - Manufacture of electronic components and boards; Article 6(1)(b) Non-

opposition).

Broadcom: European Commission Decision of 23 November 2015, M.7686 – Avago/Broadcom (NACE

G.46.52 - Wholesale of electronic and telecommunications equipment and parts, C.26.11 - Manufacture of

Merger review in digital and technology markets: Insights from national case law

focus was on hardware required for digital services. It is noteworthy that

digital platforms found in the ‘digital’ category are also often producers of

the technology they rely on, meaning they may also be considered high-tech

companies.

b) What was the NACE code related to the case? NACE codes that were

included in the technology category were identified through a case search of

important technology mergers that the European Commission has

investigated to date.

NACE codes that were included in the technology

category included ‘manufacture of communication equipment’, ‘manufacture

of consumer electronics’, ‘manufacture of electronic components’,

‘wholesale of electronic and telecommunications equipment and parts’ and

‘wholesale of computers, computer peripheral equipment and software’.

c) Was the relevant market relied upon in the case related to high-tech

markets? The following keywords were used as an indicator: chips, hardware,

patent, and semiconductor.

d) Exclusion criteria: Cases involving technology not directly relevant to

digital markets were excluded. Telecommunications operators were also

excluded.

4. Identification and analysis of cases

(21) Based on the selection and exclusion criteria set out above, a large set of cases

from across EU Member States and from the United Kingdom could be identified

electronic components, N.77.4 - Leasing of intellectual property and similar products, except copyrighted

works; Article 6(1)(b) Non-opposition); European Commission Decision of 12 May 2017, M.8314 –

Broadcom/Brocade (NACE C.26.3 - Manufacture of communication equipment, C.26.11 - Manufacture of

electronic components; Article 6(1)(b) with conditions & obligations); European Commission Decision of

12 October 2018, M.9054 – Broadcom/CA (NACE J.62.01 - Computer programming activities, C.26.11 -

Manufacture of electronic components; Article 6(1)(b) Non-opposition); European Commission Decision

of 30 October 2019, M.9538 – Broadcom/Symantec Enterprise Security Business (NACE J.62.01 -

Computer programming activities; Article 6(1)(b) Non-opposition).

Intel: European Commission Decision of 20 May 2021, M.10059 – SK Hynix/Intel’s Nano and SSD

Business (NACE C.26.2 - Manufacture of computers and peripheral equipment; Article 6(1)(b) Non-

opposition); European Commission Decision of 14 October 2015, M.7688 – Intel/Altera (NACE C.26.1 -

Manufacture of electronic components and boards; Article 6(1)(b) Non-opposition).

Qualcomm: European Commission Decision of 18 January 2018, M.8306 – Qualcomm/NXP

Semiconductors (NACE C.26.3 - Manufacture of communication equipment, J.62.09 - Other information

technology and computer service activities; Article 8(2) with conditions & obligations).

On these, see footnote 20 above.

In particular, the following NACE codes were identified (if appearing in more than one case, the NACE

code is set in italics):

C.26.1 - Manufacture of electronic components and boards

C.26.11 - Manufacture of electronic components

C.26.2 - Manufacture of computers and peripheral equipment

C.26.3 - Manufacture of communication equipment

G.46.52 - Wholesale of electronic and telecommunications equipment and parts

J.62.01 - Computer programming activities

J.62.09 - Other information technology and computer service activities

N.77.4 - Leasing of intellectual property and similar products, except copyrighted works

Merger review in digital and technology markets: Insights from national case law

based on literature research,

database research

and outreach to colleagues from

various jurisdictions. This sample was selected after careful consideration of the

selection criteria, of the need to represent a multitude of jurisdictions, of the date

of the decision, of the case’s relevance for digital and technology markets, and of

the Report’s particular interest in cases in which remedies were adopted. From

hundreds of cases reviewed, a sample of 97 cases was derived that were

considered particularly relevant based on the factors set out above, and full text

decisions for all these cases were obtained. All relevant full text decisions are

supplied to the Directorate General for Competition together with this Report. A

list of the 97 NCA decisions identified as particularly relevant can be found in

Annex I. While this list is quite extensive, it can only represent a sample and does

not aim to be comprehensive. Rather, the intention is to represent a wide range of

digital and technology merger cases that showcase the types of cases encountered

in these sectors from a wide range of jurisdictions.

(22) The 97 decisions considered particularly relevant were then coded based on the

type of outcome that the case led to (i.e., cleared/cleared with

conditions/prohibited/withdrawn/non-applicability; phase 1/phase 2). Where a

case led to an outcome in both phase 1 and 2, only the phase 2 outcome was

included. All decisions which led to conditional clearance, a phase 2 investigation,

a prohibition or a withdrawal were selected for an in-depth analysis. A further 38

cases with unconditional clearance in phase 1 were also analysed in depth, based

on the case’s importance and the language capabilities of the expert and her

collaborators. This led to an in-depth analysis of a total of 69 cases. Annex II

provides a list of these 69 cases that identifies the theories of harm employed in

those cases. Annex III provides a concise summary of all those 69 national cases

that were considered particularly relevant for the purposes of this Report.

(23) The 69 national cases that were considered particularly relevant for the purposes

of this Report were then analysed in detail as concerns

(i) the competitive concerns raised by the NCA,

(ii) the theories of harm assessed by the NCA, and

(iii) the remedies (if any) imposed by the NCA or agreed upon between the

merging parties and the NCA.

(24) Where mergers gave rise to cases in multiple jurisdictions, such cases were

particularly focused on for comparative purposes.

See, especially, Daniel Mândrescu (ed), EU Competition Law and the Digital Economy: Protecting Free

and Fair Competition in an Age of Technological (R)Evolution (XXIX FIDE Congress 2020).

This was carried out on the Caselex.eu platform.

Merger review in digital and technology markets: Insights from national case law

III. A short primer on the law and economics applicable to

digital merger control

(25) In digital and technology markets, conglomerate and vertical mergers are

increasingly coming into the focus of merger control. Conglomerate mergers are

mergers that occur between companies that are not competitors on the same

relevant market, while vertical mergers are mergers that occur between companies

that are in a vertical relationship, eg as suppliers or customers.

Together, these

types of mergers will be called non-horizontal mergers to distinguish them from

horizontal mergers, i.e. mergers between companies active on the same relevant

market.

(26) The reason for this renewed interest in non-horizontal mergers can be seen in the

specific characteristics that dynamic, digital markets display and that have an

influence on how digital companies compete.

This interest in digital mergers

was only heightened by the unprecedented ‘buying spree’ on which a number of

digital platforms embarked over the past years,

leading to noteworthy digital

mergers that were not necessarily considered horizontal and yet understood to be

possibly harmful to competition by the public.

1. The nature of digital mergers

(27) Big Tech is increasingly diversifying its portfolio, creating digital ecosystems

with varied offerings for consumers. Over the past few years, the European

Commission alone has investigated well over a dozen Big Tech mergers

as well

as an important number of technology mergers, for example in the area of

European Commission, Guidelines on the assessment of non-horizontal mergers under the Council

Regulation on the control of concentrations between undertakings (Non-horizontal Merger Guidelines

2008) [2008] OJ C265/6, paras 2-5, 91. The US Vertical Merger Guidelines encompass both vertical

mergers as under the European definition, as well as vertical issues that arise in mergers of complements,

ie conglomerates; US Department of Justice and Federal Trade Commission, Vertical Merger Guidelines

(30 June 2020) 1.

On the nature of horizontal mergers, see European Commission, Guidelines on the assessment of

horizontal mergers under the Council Regulation on the control of concentrations between undertakings

(Horizontal Merger Guidelines 2004) [2004] OJ C31/5, para 5; US Department of Justice and Federal Trade

Commission, Horizontal Merger Guidelines (19 August 2010) 1.

For an introduction, see Viktoria H.S.E. Robertson, ‘Antitrust Law and Digital Markets’ in Heinz D.

Kurz, Marlies Schütz, Rita Strohmaier and Stella S. Zilian (eds), The Routledge Handbook of Smart

Technologies: An Economic and Social Perspective (2022) 432.

Alex Sherman and Lauren Feiner, ‘Amazon, Microsoft and Alphabet went on a buying spree in 2021

despite D.C.’s vow to take on Big Tech’ (22 January 2022) CNBC

<https://www.cnbc.com/2022/01/22/amazon-microsoft-alphabet-set-more-deals-in-2021-than-last-10-

years.html>.

Eg, see Cecilia Kang and David McCabe, ‘F.T.C. Broadens Review of Tech Giants, Homing In on Their

Deals’ New York Times (11 February 2020); David McCabe and Jim Tankersley, ‘Biden Urges More

Scrutiny of Big Business, Such as Tech Giants’ New York Times (16 September 2021); Kiran Stacey, James

Fontanella-Khan and Stefania Palma, ‘Big tech companies snap up smaller rivals at record pace’ Financial

Times (19 September 2021); Richard Waters and Leo Lewis, ‘Why gaming is the new Big Tech

battleground’ Financial Times (21 January 2022).

For a comprehensive list of these cases, see already footnote 15 above.

Merger review in digital and technology markets: Insights from national case law

semiconductors.

Digital and technology mergers are not restricted to Big Tech,

however. Another trend that can be noted at the merger stage is that more and

more services and retail activities are (also) moving online, something that can be

seen in travel agency services,

in the sale of books and household goods,

digital property listings

or the renting of bicycles through mobile applications,

as well as in online betting and gambling.

2. Digital mergers and conglomerate theories of harm

(28) In merger control, horizontal mergers are traditionally viewed as a bigger threat

to competition than vertical or conglomerate mergers. This is also how the

European Commission frames the issue in its 2008 Non-Horizontal Merger

Guidelines.

The 2021 Merger Guidelines by the UK’s Competition & Markets

Authority highlight that over 80% of its merger investigations in phase 1 relate to

horizontal mergers.

In this assessment, however, digital market environments

with their specific market characteristics may be a game-changer.

(29) In digital markets, mergers often defy traditional categorisations because a merger

may at the same time be a vertical merger (where the data from an acquired start-

up serves as an additional input), a conglomerate merger (where an aspect of an

acquired start-up complements the offerings of the acquiring platform) and a

horizontal merger (where an aspect of an acquired start-up already competes with

the acquiring platform’s offerings).

(30) After a considerable conglomerate merger wave in the 1960s and 1970s,

conglomerate mergers have today returned to the forefront of antitrust debate.

For a comprehensive list of these cases, see already footnote 20 above.

Office of Fair Trading, Web Reservations/Hostelbookers.com (ME/6062/13, 2 August 2013).

Autorité de la concurrence, Fnac/Darty (16-DCC-111, 27 July 2016).

Bundeskartellamt, Axel Springer/Immowelt (B6-39/15, 20 April 2015); Competition & Markets

Authority, ZPG/Websky (ME/6690/17, 29 June 2017); Autorité de la concurrence, Axel Springer/Concept

Multimédia (18-DCC-18, 1 February 2018).

Autoriteit Consument & Markt, NS Groep/Pon Netherlands (ACM/20/038614, 20 May 2020).

Eg, see Malta Competition and Consumer Affairs Authority, GVC Holdings/Ladbrokes Coral Group

(COMP-MCCAA/4/18, 21 March 2018); Competition and Consumer Protection Commission, Stars

Group/Sky Betting & Gaming (M/18/038, 18 June 2018); Competition and Consumer Protection

Commission, Flutter Entertainment/Stars Group (M/20/001, 12 May 2020).

European Commission, Non-horizontal Merger Guidelines 2008, para 92.

Competition & Markets Authority, Merger Assessment Guidelines 2021, para 1.10.

On these characteristics, see also Lear, ‘Ex-post Assessment of Merger Control Decisions in Digital

Markets’ (9 May 2019) 3 ff.

For instance, in the recently cleared Microsoft/Nuance acquisition, the European Commission identified

and assessed ‘horizontal overlaps between the activities of Nuance and Microsoft in the markets for

transcription software’, a ‘vertical link between Microsoft’s cloud computing and Nuance’s downstream

transcription software for healthcare’, ‘conglomerate links between Nuance's transcription software

products and a number of Microsoft’s products’ and the ‘use of data transcribed with Nuance’s software’;

European Commission Decision of 21 December 2021, M.10290 – Microsoft/Nuance; European

Commission, ‘Mergers: Commission approves acquisition of Nuance by Microsoft’ IP/21/7067 (21

December 2021).

Eg, see Everette Macintyre, ‘Statement on Conglomerate Mergers and Antitrust Laws’ (2 December

1966)

<https://www.ftc.gov/system/files/documents/public_statements/683731/19661202_macintyre_conglome

Merger review in digital and technology markets: Insights from national case law

This comeback, it has been argued, is due to the competitive characteristics found

in digital markets, as well as the platform business model popular in that market

environment and the network effects specific to some of those markets.

(31) In the 1970s, several theories were advanced on the reasons for conglomerate

mergers. Of these, some still appear relevant in order to understand the intentions

behind digital conglomerate mergers, in particular the market power theory and

the resource theory.

Under the market power theory, digital platforms move into

adjacent markets in order to strengthen their stronghold on the initial market.

Under the resource theory, the resources that digital platforms readily have

available allow them to move into adjacent markets with relative ease.

(32) In addition, multiple authors have identified factors that specifically explain the

reasons for digital conglomeration that go beyond how conglomerate mergers of

the 1960s and 1970s were understood.

These factors directly relate to possible

theories of harm under a substantive merger analysis. Lim (2020), for instance,

argues that while digital conglomeration continues to serve the goal of

diversification, this is ultimately ‘pursued more in fear of displacement rather than

business cyclicality’.

(33) Conglomerate mergers in the digital age can bring about a multitude of benefits

for the acquiring platform and its customers, but these benefits can at the same

time constitute new barriers to entry for innovators. On the supply-side, Bourreau

and de Streel (2019) find that the modular design of many digital products allows

digital platforms to make use of their resources for a variety of different purposes,

leading to significant economies of scope. Resources can relate to hardware,

software or data,

for instance. On the demand-side, digital platforms can benefit

from consumption synergies that consumers enjoy in multi-product ecosystems.

This can directly benefit consumers while at the same time locking them into a

particular digital ecosystem and thereby, in the long run, softening competition.

(34) While tying and bundling are generally recognised as possible anti-competitive

effects of conglomerate mergers, and thus a possibility to be assessed in the

merger review,

Bourreau and de Streel (2019) argue that ‘the specific

characteristics of the digital industries may change the effects of conglomerate

diversification and affect the balance between pro- and anti-competitive effects’.

They propose that tying and bundling, also through digital ecosystems, need to be

focused on in digital merger control as a particular barrier to entry for innovating

rate_mergers_and_antitrust_laws.pdf>. Conglomerate mergers were then addressed by the 1968 US Merger

Guidelines; US Department of Justice, Merger Guidelines (1968), section III.

Lim (n 13) 48.

Bourreau and de Streel (n 12) 6 ff.

Bourreau and de Streel (n 12) 7 (containing further references).

See, in particular, Bourreau and de Streel (n 12); Lim (n 13).

Lim (n 13) 55 (containing references to that effect).

On the particular importance of data for the analysis of conglomerate mergers, see also Lim (n 13) 57

(speaking of ‘data-driven network effects’); Lécuyer (n 12) 47.

Bourreau and de Streel (n 12) 9-13.

See European Commission, Non-Horizontal Merger Guidelines 2008, para 93.

Bourreau and de Streel (n 12) 13.

Merger review in digital and technology markets: Insights from national case law

newcomers.

Particular issues they draw attention to include the softening of

competition through increased differentiation and platform envelopment,

whereby ‘a dominant platform enters a new market pioneered by an entrant

platform and forecloses the new entrant’.

Here, the issue from a competition law

point of view is that once another company’s product is incorporated into the

buyer’s digital ecosystem, network effects may be able to further strengthen its

market power.

Platform envelopment has been described as a possible point of

entry for digital platforms that does not involve ‘offer[ing] revolutionary

functionality to win substantial market share’.

(35) While so-called portfolio effects already worried competition authorities in non-

digital cases,

digital conglomerates may rely on product proliferation in a

targeted way as a deterrence strategy to keep potential entrants out of the market.

Furthermore, digital conglomerates may sometimes act as a gatekeeper for access

to users as well as for access to products and services,

a fact that merger control

needs to bear in mind. Where a digital conglomerate keeps an essential component

to itself, access remedies may be appropriate.

(36) Pre-emption of potential competitors has been identified as an important driving

force behind digital platforms that buy promising start-ups.

While it is

impossible to predict with certainty whether a certain start-up would have

morphed into a credible competitive threat,

anecdotal evidence suggests that the

digital platforms themselves seem to think so.

Ultimately, the impact of a digital

merger on innovation may need to be assessed more carefully.

Here, the focus

may also need to shift to a more long-term view of how a digital market may

develop in the future.

Bourreau and de Streel (n 12) 29.

Bourreau and de Streel (n 12) 16; based on Thomas Eisenmann, Geoffrey Parker and Marshall Van

Alstyne, ‘Platform Envelopment’ (2011) 32 Strategic Management Journal 1270.

Jacques Crémer, Heike Schweitzer and Yves-Alexandre de Montjoye, Competition Policy in the Digital

Era (2019) 110-122; Lécuyer (n 12) 47.

Eisenmann, Parker and Van Alstyne (n 52) 1270.

See Witt (n 13) 212.

Based on Richard Schmalensee, ‘Entry Deterrence in the Ready-to-Eat Breakfast Cereal Industry’ (1978)

9 Bell Journal of Economics 305.

Bourreau and de Streel (n 12) 13-21.

Bourreau and de Streel (n 12) 30.

Lim (n 13) 55; Crémer, Schweitzer and de Montjoye (n 53) 110-122; Jason Furman et al., Unlocking

Digital Competition – Report of the Digital Competition Expert Panel (2019) paras 1.154 f.

Lécuyer (n 12) 45.

Eg, see Meta CEO Mark Zuckerberg’s emails about smaller rivals, invoking that ‘These businesses are

nascent but the networks established, the brands are already meaningful, and if they grow to a large scale

they could be very disruptive to us. … Given that we think our own valuation is fairly aggressive and that

we’re vulnerable in mobile, I’m curious if we should consider going after one or two of them.’ On reasons

for such an acquisition, Zuckerberg held that it was to neutralize as well as to integrate the target’s services

into Facebook’s. Casey Newton and Nilay Patel, ‘“Instagram can hurt us”: Mark Zuckerberg Emails Outline

Plan to Neutralize Competitors’ The Verge (29 July 2020)

<https://www.theverge.com/2020/7/29/21345723/facebook-instagram-documents-emails-mark-

zuckerberg-kevin-systrom-hearing>.

Bourreau and de Streel (n 12) 32.

Eg, see European Commission Decision of 27 January 2022, M.10262 – Meta/Kustomer.

Merger review in digital and technology markets: Insights from national case law

(37) Based on the far-reaching consequences of some of the competitive threats that

can arise in connection with digital conglomerate mergers, the Furman Report

(2019) proposed that NCAs should be put in a position to apply a ‘balance of

harms’ approach whereby in a merger assessment they could take into account

anti-competitive effects that have a low probability but a high impact.

present, however, the UK is not following this proposal.

(38) Of course, conglomerate mergers in the digital economy can also lead to a number

of efficiencies that merit closer scrutiny. In this respect, economists have

highlighted the realisation of economies of scope, consumption synergies, a

complementarity in capabilities, and the provision of an exit strategy for

innovative start-ups.

In addition, they also do not lead to the removal of a

competitor as a horizontal merger would.

(39) Frequently, a digital merger will have both conglomerate and vertical aspects to

it. In a vertical merger, companies are already in a (vertical) business relationship

– or could be.

While vertical mergers are generally thought to have less anti-

competitive effects than horizontal ones, they can lead to reduced output, higher

prices or harm to innovation.

Particularly the threat of foreclosure or raising

rivals’ cost may be applicable in the digital economy.

(40) While a look to past vertical and conglomerate mergers can provide valuable

insights, the competitive dynamics in digital markets are noticeably different,

meaning that the analysis initially developed for more traditional conglomerate

mergers will not always directly apply to a digital conglomerate merger today.

For this reason, it can be particularly insightful to look at national merger

enforcement in the EU Member States (and a former EU Member State) in order

to get a broad overview on how theories of harm and remedies have evolved in

this particular market context in different regions.

3. Digital mergers and digital ecosystems

(41) While the reasons for digital mergers are manifold, it increasingly emerges that

competition concerns associated with these mergers need to be understood against

Furman et al. (n 59) paras 3.88-3.94.

In 2021, this proposal was being put into practice at a slightly lower degree of intervention, namely in

the shape of a revised probability standard; see Secretary of State for Digital, Culture, Media & Sport and

Secretary of State for Business, Energy and Industrial Strategy, ‘A new pro-competition regime for digital

markets’ (CP 489, July 2021) paras 187-191

<https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/10039

13/Digital_Competition_Consultation_v2.pdf>. In 2022, however, the Queen’s Speech made clear that no

such change was to be expected; Victoria Ibitoye, ‘UK scraps tougher Big Tech merger-review standard,

stays quiet on law to back digital regulator’ MLex (6 May 2022)

<https://content.mlex.com/#/content/1376156?referrer=email_dailycontentset&dailyId=ecdc6c88629a432

6bbe6bfbb614c0e59>.

Lécuyer (n 12) 46-47.

Lécuyer (n 12) 46.

Herbert Hovenkamp, ‘Competitive Harm from Vertical Mergers’ (2021) 59 The Industrial Organization

Society 139, 158.

Hovenkamp (n 68) 142.

Lim (n 13) 56.

Merger review in digital and technology markets: Insights from national case law

the background of sophisticated digital ecosystems. In the digital sphere, there is

a noticeable trend towards the creation and development of ever more tight-knit

digital ecosystems that connect goods and services in an intricate, interoperable

system – even if the goods and services connected through the ecosystem

themselves are not closely related.

However, the orchestrators of these digital

ecosystems have come to realize that this is their chance to lock-in users, prevent

multi-homing and increase their hold on several relevant markets. Conglomerate

and vertical mergers can be one vehicle to expand their digital ecosystems.

(42) Digital ecosystems raise many questions as to how competition law ought to apply

to them.

These questions are also pertinent in the context of merger control. As

ecosystem orchestrators, digital conglomerates are often in multi-contact

competition with other digital conglomerates. It can therefore be useful to go

beyond a narrow view of the relevant market to assess these cases,

essentially

relying on market definition as a tool to characterise the market rather than

deducing market power from the computed market shares.

4. The appropriate legal framework for assessing digital mergers

(43) Against the background of the specific competition dynamics found in digital

markets discussed above, the question arises whether digital and technology

mergers can be assessed under the traditional merger framework, or whether

traditional approaches need to be adapted or even replaced by more suitable ones.

These are also questions that the Furman Report (2019)

and the Special

Advisers’ Report (2019)

addressed. This applies to substantive as well as

procedural questions, although the present Report focuses on the former.

(44) As Margrethe Vestager, then Commissioner for Competition and today also

Executive Vice-President of the European Commission in charge of Europe fit for

a digital age, pointed out in 2016, EU merger control rules are generally

sufficiently flexible to adjust to the developments that have taken place in digital

markets.

However, she also acknowledged that there can nevertheless be a need

to ‘revisit[] theories of harm, so we can intervene in mergers when the owners of

ecosystems buy start-ups before they have a chance to grow.’

In line with this

thinking, it has been argued that in applying the flexible rules of merger control,

the specific characteristics and dynamics of digital markets need to be taken into

Eg, see Mohan Subramaniam et al., ‘Competing in Digital Ecosystems’ (2019) 62 Business Horizons 83;

Amelia Fletcher, ‘Digital Competition Policy: Are Ecosystems Different?’ (2020)

DAF/COMP/WD(2020)96; Michael G. Jacobides and Ioannis Lianos, ‘Ecosystems and Competition Law

in Theory and Practice’ (2021) 30 Industrial and Corporate Change 1199.

This starts with the basic unit of competition law analysis, market definition; eg, see Viktoria H.S.E.

Robertson, ‘Antitrust Market Definition for Digital Ecosystems’ (N° 2-2021) Concurrences 3.

Lim (n 13) 61.

Viktoria H.S.E. Robertson, Competition Law’s Innovation Factor: The Relevant Market in Dynamic

Contexts in the EU and the US (Hart 2020).

Furman et al. (n 59) paras 3.32-3.108.

Crémer, Schweitzer and de Montjoye (n 53) 110-124.

Margrethe Vestager, ‘Competition in a Big Data World’ (Munich, 17 January 2016).

Margrethe Vestager, ‘Shaping Competition Policy in the Era of Digitisation’ (Brussels, 17 January 2019).

Merger review in digital and technology markets: Insights from national case law

account.

The present Report enquires to what extent NCAs have already done

so.

(45) The European Union relies on a bifurcated approach to merger control: While the

European Commission is the sole enforcer of the EU Merger Regulation,

NCAs

apply national merger rules that foresee lower merger thresholds than the EU

rules. While there is a referral system both from the Commission to NCAs and

vice versa, these two types of merger regimes exist next to each other. This leads

to a situation where a harmonious development of a pan-European approach to

digital mergers requires an effort to bring these two parallel regimes into contact

that – based on the rules set out in the EUMR – they rarely have.

(46) Digital and technology mergers that reach the EU’s turnover thresholds fall within

the exclusive competence of the European Commission and are thus assessed by

it. However, a number of Big Tech mergers were not caught by the jurisdictional

thresholds of EU merger control, often because the target’s turnover was below

the jurisdictional turnover thresholds. Some of these mergers were caught by

national merger control. For instance, some jurisdictions like Austria or Germany

introduced an additional transaction value threshold that is able to capture the buy-

up of promising start-ups that do not yet generate a substantial turnover.

Mergers

such as Apple/Shazam were referred to the European Commission by an NCA.

In other cases, like Facebook/WhatsApp, the notifying parties submitted a

reasoned submission to the Commission asking it to take the case.

Yet other

mergers were exclusively assessed on a national basis, such as the Austrian and

UK investigations of the Meta/Giphy merger

or more regional digital platforms.

In other cases, like Meta/Kustomer, the Commission accepted a referral from a

Member State but a non-referring NCA assessed the merger in parallel as it later

decided that its (new) transaction value threshold was met.

Such parallel reviews

constitute an inherent risk of divergence in the assessment, as well as duplicating

investigation efforts. For this reason, the one-stop-shop principle contained in the

EUMR strives to avoid such situations as far as possible. Wherever this is not

Bourreau and de Streel (n 12) 24.

Article 22 EUMR.

Contrast this with the parallel application of EU antitrust rules (Articles 101 and 102 TFEU) by the

European Commission and NCAs, as foreseen in Regulation 1/2003; Consolidated Version of the Treaty

on the Functioning of the European Union [2016] OJ C202/47 (TFEU); Council Regulation (EC) No 1/2003

of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82

of the Treaty [2003] OJ L1/1.

Eg, see § 9 para 4 Cartel Act, Austrian Federal Law Gazette I 61/2005 as amended; § 35 para 1a Act

against Restraints of Competition, German Federal Law Gazette I 2013/1750 as amended. See also

Bundeswettbewerbsbehörde and Bundeskartellamt, Leitfaden Transaktionswert-Schwellen fr die

Anmeldepflicht von Zusammenschlussvorhaben (§ 35 Abs. 1a GWB und § 9 Abs. 4 KartG) (January 2022).

European Commission Decision of 6 September 2018, M.8788 – Apple/Shazam, paras 6-9.

European Commission Decision of 3 October 2014, COMP/M.7217 – Facebook/WhatsApp, paras 9-12.

Competition & Markets Authority, Meta/Giphy (ME/6891/20-II, 6 December 2021); Meta/Giphy, [2022]

CAT 26, 14 June 2022; Kartellgericht, 7 February 2022, 28 Kt 8/21t and 28 Kt 9/21i – Meta/Giphy;

Kartellobergericht, 23 June 2022, 16 Ok 3/22k and 16 Ok 4/22g – Meta/Giphy.

European Commission Decision of 27 January 2022, M.10262 – Meta/Kustomer; Bundeskartellamt,

Meta/Kustomer (B6-37/21, 9 December 2021).

Merger review in digital and technology markets: Insights from national case law

possible, close cooperation between the Commission and the NCAs can help

alleviate concerns of divergence.

(47) As the EUMR attributes competences rather than introducing a comprehensive

substantive European framework for merger control, a disconnect can also arise

between national cases and EU cases as regards the substantive assessment of

cases. Sometimes, the European and national levels may also not be fully aware

of the plethora of digital and technology cases that other NCAs have already dealt

with. Collaboration among NCAs and with the Commission, e.g., through the

Merger Working Group,

serves as an important mechanism to minimise any

such disconnect.

This Report aims to further narrow this gap by focusing on

national merger cases in the digital and high-tech sectors. It identifies and analyses

these cases with a view to understanding the theories of harm that NCAs applied

and the remedies that were subsequently imposed (if any).

In fact, as the German NCA highlighted in its press release, it took the Commission’s conditional

clearance into account when unconditionally clearing the concentration in Meta/Kustomer;

Bundeskartellamt, ‘Bundeskartellamt clears acquisition of Kustomer by Meta (formerly Facebook)’ Press

Release (11 February 2022)

<https://www.bundeskartellamt.de/SharedDocs/Meldung/EN/Pressemitteilungen/2022/11_02_2022_Meta

_Kustomer.html>.

See EU Merger Working Group, ‘Best Practices on Cooperation between EU National Competition

Authorities in Merger Review’ (8 November 2011).

The European Competition Network does not extend to merger review.

Merger review in digital and technology markets: Insights from national case law

IV. National digital and technology merger cases in selected

EU Member States and the UK: Quantitative insights

(48) The quantitative analysis of the cases analysed for this Report already allows for

a number of insights into this particular area of merger control.

(49) In preparation for this Report, 97 cases were identified that came within the

parameters set out in Chapter II. Concerning their outcome, the 97 cases were

decided as follows:

- 65 cases: Unconditional clearance in phase 1

- 9 cases: Unconditional clearance in phase 2

- 10 cases: Conditional clearance in phase 1

- 5 cases: Conditional clearance in phase 2

- 6 cases: Prohibition

- 1 case: Non-applicability

- 1 case: Withdrawal

This distribution can be seen represented below in figure 1.

1. Quantitative insights: Outcome of 97 national merger cases

(50) Out of these 97 cases, all 22 cases that led to a conditional clearance (phase 1 or

phase 2), a prohibition or a withdrawal were analysed in depth. All 9 cases that

led to a phase 2 investigation were equally analysed in-depth. In addition, based

on the case’s importance and the language capabilities of the expert and her

collaborators, a further 38 cases with unconditional clearance in phase 1 were also

analysed in-depth. This led to an in-depth analysis of a total of 69 cases.

In one case, the clearance actually occurred in the pre-phase 1 assessment (‘Vorprfverfahren’); see

Bundeskartellamt, Adevinta/eBay Classifieds Group (B6-41/20, 23 November 2020).

67%

11%

National merger cases, by outcome

Unconditional clearance in phase 1

Unconditional clearance in phase 2

Conditional clearance in phase 1

Conditional clearance in phase 2

Prohibition

Withdrawal

Non-applicability

Merger review in digital and technology markets: Insights from national case law

(51) Of the 69 cases that were selected for an in-depth analysis, the distribution by

country was as follows:

- 21 cases from the United Kingdom

- 8 cases from Germany

- 7 cases from Ireland

- 6 cases from Spain

- 4 cases from France

- 4 cases from Slovenia

- 3 cases from Austria

- 3 cases from Hungary

- 3 cases from the Netherlands

- 2 cases from Romania

- 2 cases from Sweden

- 1 case from Czechia

- 1 case from Greece

- 1 case from Italy

- 1 case from Malta

- 1 case from Poland

- 1 case from Portugal

This distribution can be seen represented below in figure 2.

2. Quantitative insights: Distribution by country of 69 selected national merger cases

(52) For the remaining 28 cases that were either unconditionally cleared in phase 1 or

where merger control was found to be inapplicable, these were only analysed as

to their outcome. The distribution by country was as follows:

- 6 cases from the United Kingdom

30%

12%

10%

1% each

Selected national merger cases, by country

United Kingdom

Germany

Ireland

Spain

France

Slovenia

Austria

Netherlands

Hungary

Romania

Sweden

Czechia

Merger review in digital and technology markets: Insights from national case law

- 5 cases from Portugal

- 4 cases from Estonia

- 3 cases from Greece

- 2 cases from Bulgaria

- 2 cases from Cyprus

- 2 cases from Germany

- 1 case from Czechia

- 1 case from Hungary

- 1 case from Ireland

- 1 case from Spain

(53) For all 69 cases analysed in-depth, concise case summaries were prepared that can

be found in Annex III. The theories of harm that the NCA assessed in the cases at

hand were identified for every single case, allowing for a number of insights into

the issues that competition authorities tend to focus on in digital and technology

mergers. It is noteworthy that nearly a third of all cases analysed in-depth came

from the United Kingdom. 10 of the cases analysed in-depth were decided prior

to the UK leaving the EU, while the remaining 11 cases were decided since 1

February 2020.

(54) Of the 69 cases, 30 cases only assessed horizontal effects, 18 cases assessed

horizontal and vertical effects, 8 cases assessed horizontal and conglomerate

effects, 5 cases only assessed vertical effects, 3 cases assessed vertical and

conglomerate effects, and 2 cases only assessed conglomerate effects. A total of

3 cases assessed horizontal, vertical and conglomerate effects. This distribution

can be seen below in figure 3.

3. Quantitative insights: Combinations of theories of harm in 69 selected national merger cases

44%

26%

12%

Selected national merger cases,

by theories of harm

Only horizontal theories of harm

Horizontal and vertical theories of harm

Horizontal and conglomerate theories of harm

Horizontal, vertical and conglomerate

theories of harm

Only vertical theories of harm

Vertical and conglomerate theories of harm

Only conglomerate theories of harm

Merger review in digital and technology markets: Insights from national case law

(55) The quantitative analysis also allows a glimpse into the specific types of theories

of harm that the authorities investigated (see figure 4). 59 cases included

horizontal theories of harm, while only 10 cases concerned no horizontal theories

of harm at all. In 51 cases, the loss of an actual competitor was assessed, while in

6 cases, the loss of a potential competitor was assessed. In 4 cases, horizontal

coordinated effects were assessed. 5 cases assessed other horizontal theories of

harm. Note that several cases involved two or more horizontal theories of harm.

4. Quantitative insights: Distribution of horizontal theories of harm in 69 selected national merger cases

(56) 29 cases considered vertical theories of harm, while 40 cases addressed no vertical

theories of harm at all. Of these 29 cases, 27 cases assessed input foreclosure,

while 11 cases assessed customer foreclosure. 4 cases addressed other vertical,

non-coordinated effects, while no cases addressed vertical coordinated effects.

Note that several cases involved two vertical theories of harm.

0 10 20 30 40 50 60

Loss of an actual competitor

Loss of a potential competitor

Coordinated effects

Other horizontal theories of harm

No horizontal theories of harm

Horizontal theories of harm

Merger review in digital and technology markets: Insights from national case law

5. Quantitative insights: Distribution of vertical theories of harm in 69 selected national merger cases

(57) Finally, concerning conglomerate theories of harm, 15 cases addressed

conglomerate foreclosure through the linking of sales (tying, bundling), while one

further case addressed ecosystem concerns that were considered as a further

conglomerate competition concern.

(58) If one looks at the distribution of theories of harm more closely, it can be seen that

in 25 cases, the only theory of harm explored by the authority in some depth

related to the loss of an actual competitor (horizontal unilateral effects). Of these

mergers, 12 were unconditionally cleared in phase 1, 4 were unconditionally

cleared in phase 2, 5 were cleared subject to conditions in phase 1, 2 were cleared

subject to conditions in phase 2, one was withdrawn, and one was prohibited.

(59) In 4 cases that exclusively focused on horizontal theories of harm, in addition to

the loss of an actual competitor a further theory of harm related to horizontal

effects was assessed. In 2 cases, this was related to horizontal coordinated effects

(once in addition to further horizontal effects), in 2 cases to the loss of a potential

competitor. In one case, only other non-coordinated horizontal effects were

analysed closely.

(60) In 19 cases where horizontal effects were assessed, vertical foreclosure (input or

customer foreclosure) effects were also assessed. Of these, 4 mergers were

prohibited. In 3 cases, conglomerate foreclosure effects were assessed in addition

to the horizontal and vertical effects; all of these mergers were unconditionally

cleared in phase 1.

(61) In only 10 cases, no horizontal effects were assessed at all and the analysis instead

focused on vertical foreclosure effects, other vertical effects, and/or conglomerate

effects. None of these mergers were prohibited, and 3 were conditionally cleared

in phase 1. 2 were conditionally cleared in phase 2, while 5 were unconditionally

cleared in phase 1.

Vertical input foreclosure

Vertical customer foreclosure

Other vertical, non-coordinated effects

No vertical theories of harm

0 5 10 15 20 25 30 35 40 45

Vertical theories of harm

Merger review in digital and technology markets: Insights from national case law

(62) Of the 6 cases in which concentrations were prohibited, all cases assessed

horizontal effects, and 4 in addition assessed vertical foreclosure effects. None

assessed any conglomerate effects.

(63) 15 concentrations were conditionally cleared, meaning that the competition

authorities either imposed or accepted remedies in these cases. Of these, 10 cases

were cleared subject to conditions in phase 1 and a further 5 were cleared subject

to conditions in phase 2.

(64) Of the 10 cases in which concentrations were conditionally cleared in phase 1, 7

(also) related to horizontal effects, while 3 did not involve an assessment of

horizontal effects.

(65) Of the 5 cases in which concentrations were conditionally cleared in phase 2, 3

(also) concerned horizontal effects, one only concerned vertical and conglomerate

effects, and one only concerned conglomerate effects.

(66) Of the 9 cases in which concentrations were unconditionally cleared in phase 2,

all (also) related to horizontal effects. In addition, one case referred to vertical

effects and two cases to conglomerate effects.

(67) In the one case in which the parties withdrew from the proposed concentration,

the loss of an actual competitor was at stake.

Merger review in digital and technology markets: Insights from national case law

V. National digital and technology merger cases in selected

EU Member States and the UK: Qualitative insights and

mapping the theories of harm

(68) In order to enable qualitative insights on digital and technology merger control by

NCAs, cases were categorised based on the theories of harm that were assessed

by the authority in question in some depth. A single case can also pertain to several

categories in this respect. The following categories and sub-categories were

identified based on the European Commission’s Guidelines on Horizontal

Mergers (2004)

and its Guidelines on Non-Horizontal Mergers (2008),

the UK

Competition & Market Authority’s Merger Assessment Guidelines (2021)

and

the national cases themselves. In particular, the case analysis showed that NCAs

closely stay within this traditional categorisation of theories of harm. This in itself

is noteworthy and can lead to a type of analysis that reinforces old insights and

only gradually adapts to new market environments.

(69) The categories of theories of harm allow for insights into when a merger is thought

to be anti-competitive in digital and technology markets, thereby fulfilling the

tests that are known as the SIEC test in the EU terminology (SIEC standing for a

significant impediment of effective competition) or the SLC test in the UK

(substantially lessening competition). These tests usually ask whether a merger

will lead to the creation or strengthening of a dominant position,

or whether it

might lead to other anti-competitive effects that arise. Anti-competitive effects

can arise from non-coordinated (unilateral) or coordinated behaviour. While

national merger regimes can deviate from this terminology, in all cases reviewed,

they by and large stayed within this framework.

1. Horizontal theories of harm

(70) Horizontal mergers are concentrations that involve companies that are active on

the same relevant market, i.e. the companies are actual or potential competitors.

A number of theories of harm related to horizontal mergers can be distinguished

that are briefly set out below, followed by an analysis of how these particular

theories of harm were applied in the digital and technology merger cases that were

identified on a national level. Where appropriate, parallels to European

Commission cases are drawn in the discussion that follows.

European Commission, Guidelines on the assessment of horizontal mergers under the Council Regulation

on the control of concentrations between undertakings (Horizontal Merger Guidelines 2004) [2004] OJ

C31/5.

European Commission, Guidelines on the assessment of non-horizontal mergers under the Council

Regulation on the control of concentrations between undertakings (Non-horizontal Merger Guidelines

2008) [2008] OJ C265/6.

Competition & Markets Authority, Merger Assessment Guidelines (CMA129, 18 March 2021).

European Commission, Horizontal Merger Guidelines 2004, para 4.

European Commission, Horizontal Merger Guidelines 2004, para 5.

Merger review in digital and technology markets: Insights from national case law

i. Non-coordinated effects: Loss of an actual competitor

a. Specificities of the theory of harm

(71) Where the merging parties are competitors on the same relevant market, a

horizontal merger removes a competitive constraint from the market and the main

competition concern thus relates to the loss of competition between the companies

that are involved in the merger.

This can in turn lead to an increase in prices and

a decrease in quality, choice, service and innovation.

In addition, other

companies might also feel less competitive pressure once a close competitor is

removed through a merger.

(72) Competition authorities take into account a number of factors in order to

determine whether anti-competitive effects might materialise due to the loss of an

actual competitor, such as the parties’ market shares, the closeness of competition

between them, the number of effective competitors providing a competitive

constraint on the market post-merger, the ability of customers to switch suppliers

and related switching costs, the ability and likelihood of expansion by

competitors, the merged entity’s ability to hinder competitors’ expansion, and

whether the merger eliminates an important competitive force (i.e., a maverick).

(73) Recent merger guidelines by the UK’s Competition & Markets Authority, which

were published in March 2021, include additional guidance on mergers in digital

markets. With regard to two-sided platforms, they affirm that depending on the

nature of the case, the authority will either look at each side of a platform or

consider it overall. The NCA draws attention to the importance of network effects

and the possibility of tipping in those markets, as well as to often high barriers to

entry, all of which mean that digital mergers may more readily raise competition

concerns.

100

The Special Advisers’ Report (2019) also described digital market

settings in which competitive concerns may arise due to a merger, especially

where a market is already concentrated and there are high barriers to entry. In such

circumstances, the acquisition of a start-up may further strengthen a dominant

platform’s market position by increasing barriers to entry, adding to the ecosystem

orchestrated by the platform, and reduce innovation in the market.

101

b. NCAs applying the theory of harm in digital and technology mergers

(74) Of 69 cases analysed in-depth, a total of 51 cases raised issues related to the loss

of an actual competitor on the relevant market(s). Of these 51 cases, 9

concentrations were cleared subject to conditions (7 in phase 1, 2 in phase 2), 4

concentrations were prohibited and one was withdrawn. The remaining

concentrations were all unconditionally cleared.

European Commission, Horizontal Merger Guidelines 2004, para 24.

Competition & Markets Authority, Merger Assessment Guidelines 2021, para 4.1.

European Commission, Horizontal Merger Guidelines 2004, para 24.

European Commission, Horizontal Merger Guidelines 2004, paras 26-38; Competition & Markets

Authority, Merger Assessment Guidelines 2021, para 4.3.

100

Competition & Markets Authority, Merger Assessment Guidelines 2021, paras 4.21-4.25.

101

Crémer, Schweitzer and de Montjoye (n 53) 112 ff.

Merger review in digital and technology markets: Insights from national case law

(75) While all 51 cases that focused on the loss of an actual competitor are summarised

in Annex III, the following focuses on those 5 cases that were outright prohibited

or withdrawn, followed by the cases in which the NCA only cleared a

concentration subject to conditions. Furthermore, commonalities that have

emerged among a number of cases that were unconditionally cleared are set out

to provide a frame of reference.

(76) In Blocket/Hemnet (2016), the notifying parties withdrew their merger after the

Swedish NCA voiced considerable concerns related to horizontal unilateral

effects. Blocket was Sweden’s largest online marketplace and was also active in

digital property listings, where it was the second largest player. Blocket wanted

to buy Hemnet, the by far largest player in digital property listings. As Blocket

was Hemnet’s only credible competitor, this proposed acquisition would have

created a single major player on this market. The NCA was concerned this would

lead to higher prices for digital property listings, a decrease in quality of the

products and services provided and increased barriers to entry and expansion. The

commitments proposed by Blocket were not regarded as sufficient (on these, see

below at para (259)).

102

(77) In the case of CTS Eventim/Four Artists (2017), the German NCA prohibited an

acquisition primarily based on horizontal unilateral effects (see also para (279)).

CTS Eventim, a company active in live entertainment, event venues and ticketing,

wanted to acquire a majority stake in Four Artists, a company active in organising

live events and as a booking agent for a range of famous German artists. The NCA

considered that the acquisition would further strengthen CTS Eventim’s already

dominant position on the market for ticket system services for event organisers

and for booking offices. The NCA underlined how the (then) new German

provision of § 18 para 3a ARC

103

on assessing market dominance in multi-sided

markets allowed the conclusion that CTS Eventim was indeed dominant on these

markets, and how indirect network effects worked to the incumbent’s advantage.

It found that high barriers to entry, considerable lock-in effects and limited multi-

homing by the other market side led to a strong market position, while no

innovation-driven competition was discernible. The acquisition would lead to a

strengthening of CTS Eventim’s market position on the market for ticket system

services, thereby significantly impeding effective competition.

104

What is notable

is that another acquisition by CTS Eventim earlier that same year had been

unconditionally cleared by the German NCA in phase 2.

105

(78) Tobii/Smartbox (2019) was a completed acquisition that was prohibited by the UK

NCA. Both companies produced augmentative assistive communication (AAC)

solutions, i.e. communication aids for those that find communication difficult,

e.g., due to a disability or a medical condition. AAC solutions consist of AAC

hardware, AAC software, access means, (e.g., a switch, an eye gaze camera), and

102

Konkurrensverket, Blocket/Hemnet (84/2016, 2016).

103

Act against Restraints of Competition, German Federal Law Gazette I 2013/1750 as amended.

104

Bundeskartellamt, CTS Eventim/Four Artists (B6-35/17, 23 November 2017).

105

Bundeskartellamt, CTS Eventim/FKP Scorpio (B6-53/16, 3 January 2017).

Merger review in digital and technology markets: Insights from national case law

customer support. The concentration was prohibited due to horizontal unilateral

effects and vertical input foreclosure effects. Concerning horizontal unilateral

effects, the NCA considered that the main horizontal overlap between acquirer

and target occurred in the supply of dedicated AAC solutions. It did not accept

the argument that the providers faced strong competition from AAC solutions

based on mainstream consumer devices because this was not consistent with its

market analysis nor with the parties’ internal documents. The NCA assessed the

possibility of horizontal unilateral effects, particularly as regards price increases,

quality deterioration and a reduction in the range of services and/or product

development. It emphasised that, pre-merger, the parties had been close

competitors, and competition among them led to increased innovation and R&D.

Post-merger, the merged entity had a market share of 60-70% in the UK and

competitors did not provide a sufficient constraint. Part of the merger strategy had

indeed been to reduce the range of products available as well as R&D.

106

On the

prohibition, see also paras (281) f.

(79) Sabre/Farelogix (2020) was a further merger that the UK NCA blocked solely

based on horizontal unilateral effects. Sabre, a US company providing technology

solutions to airlines and travel agents, intended to acquire Farelogix, another US

company supplying technology solutions for airlines. Issues raised included

slower rates of innovation and product development, reduced product range or

quality, and higher prices or less favourable terms of service. While Farelogix was

a strong player in merchandising solutions for airlines, Sabre was not (yet).

However, the NCA considered that Sabre would become a strong competitor

absent the acquisition. Post-merger, only one strong competitor would remain,

namely Amadeus. The loss of competition resulting from the acquisition would

be significant. As regarded distribution solutions for airlines, the NCA noted that

the product offerings by the merging parties were differentiated, and that there

were several competitors that posed a credible competitive constraint. Overall,

however, it concluded that Farelogix would play an important role in that market

absent the merger, and the loss of competition resulting from the acquisition

would be significant, with a substantial and long-lasting impact on consumers.

107

On the prohibition, see also paras (283) f.

(80) In Swedbank Franchise/Svensk Fastighetsförmedling (2014), the Stockholm

District Court, upon an application by the Swedish NCA, blocked a concentration

between the two most important players on the Swedish real estate market who

also had high stakes in Hemnet.com, the biggest Swedish portal for real estate

advertisements. The Swedish NCA raised concerns about horizontal unilateral

effects and vertical input foreclosure. For the purposes of this Report, the latter is

of particular interest (see para (148) below).

108

106

Competition & Markets Authority, Tobii/Smartbox (ME/6780/18-II, 15 August 2019).

107

Competition & Markets Authority, Sabre/Farelogix (ME/6806/19-II, 9 April 2020).

108

Stockholms tingsrätt, Swedbank Franchise/Svensk Fastighetsförmedling (T 3629-14, 16 December

2014).

Merger review in digital and technology markets: Insights from national case law

(81) The concentration of Just Eat/La Nevera Roja (2016) on the Spanish market for

the management of food orders at home via online platforms was cleared subject

to conditions (on these, see below at para (261)). The Spanish NCA considered

that this horizontal merger raised competition concerns because the acquirer and

the target were close competitors and constituted, pre-merger, the biggest and

second biggest players on the market for the management of food orders via online

platforms. Post-merger, they would have a combined market share of about 70-

80%, possibly even higher. In addition, several companies had recently exited that

market. The NCA emphasised the importance of network effects in these markets,

and high barriers to entry consisting of investments to be made in publicity and

marketing. Nevertheless, the NCA also noted that, overall, online food delivery

platforms only accounted for 10% of the local food delivery markets in Spain,

meaning that the market power of these platforms over restaurants was overall

limited.

109

(82) In Just Eat Spain/Canary Delivery Company (2019), the Spanish NCA noted that

the remedies imposed in Just Eat/La Nevera Roja had favoured market entry for

digital food order platforms and thus led to a more competitive Spanish market,

meaning that the concentration under investigation, which concerned the same

relevant market, could take place without conditions.

110

(83) When MIH Food Delivery Holdings wanted to carry out a hostile takeover of Just

Eat in 2019, however, the Spanish NCA only cleared this subject to conditions

(on these, see below at para (263)) as MIH would go from having an indirect

presence in Spain through its minority stake in Glovo to occupying an important

market share with Just Eat. This could lead to an incentive for MIH to prevent

Glovo’s expansion, Glovo at the time being Spain’s second largest food delivery

platform.

111

In February 2022, the Spanish NCA unconditionally cleared Delivery

Hero’s acquisition of Glovo.

112

(84) In Romania, the recent Glovoappro/Foodpanda (2021) merger on the national

market for online food delivery platforms and the national market for online

platforms for delivery of multi-category consumer goods raised issues largely

identical to the ones resolved in the Spanish Just Eat/La Nevera Roja case: In that

case, the Romanian NCA was also concerned that, post-merger, the merged entity

would be in a dominant position and could use this position to impose exclusivity

obligations on restaurants. While users generally multi-homed on the online food

delivery platform market, such a strategy of exclusivity would foreclose other

109

Comisión Nacional de los Mercados y la Competencia, Just Eat/La Nevera Roja (C/0730/16, 31 March

2016).

110

Comisión Nacional de los Mercados y la Competencia, Just Eat Spain/Canary Delivery Company

(C/1046/19, 10 September 2019).

111

Comisión Nacional de los Mercados y la Competencia, MIH Food Delivery Holdings/Just Eat

(C/1072/19, 5 December 2019).

112

Comisión Nacional de los Mercados y la Competencia, Delivery Hero/Glovo (C/1260/21, 23 February

2022). The same transaction was notified to the Portuguese, Polish and Romanian NCAs. The Portuguese

NCA found that Portuguese merger control was not applicable to the transaction; see Autoridade da

Concorrência, Delivery Hero/Glovo (Ccent. 61/2021, 25 January 2022).

Merger review in digital and technology markets: Insights from national case law

food delivery platforms. The acquisition was cleared subject to conditions (see

below, para (262)).

113

(85) In Schibsted/Milanuncios (2014), the Spanish NCA had to assess the horizontal

unilateral effects arising from the acquisition of Milanuncios by Schibsted.

Schibsted was a multinational media group, while Milanuncios was an online

platform specialised in classified advertisements. The NCA was concerned that

this acquisition could strengthen Schibsted’s market power vis-à-vis professional

advertisers, who would be faced with price increases for classified advertisements.

It cleared the acquisition subject to conditions (on these, see below at para

(258)).

114

(86) In eBay/Adevinta (2021), the Austrian NCA required commitments for this

transaction involving online classifieds based on its concern that eBay’s online

marketplace was a close competitor of the Austrian marketplace willhaben.at,

especially in respect of C2C

115

transactions. This became apparent through market

surveys and was also confirmed by internal documents of the parties. The market

was already concentrated, and in the eyes of the authority the risk of non-

coordinated effects was considerable. Commitments were necessary to clear this

acquisition (on these, see below at para (253)).

116

(87) When investigating the same merger, the UK NCA also raised concerns based on

horizontal unilateral effects, finding that eBay Marketplace was the largest

platform on the market, over twice the size of Facebook Marketplace, its next

biggest competitor. Gumtree, which belonged to eBay, was third or fourth

(depending on the metric), while Adevinta’s Shpock was relatively small but had

recently increased its competitive constraint on eBay Marketplace. The parties’

platforms were close competitors. Under eBay’s ownership, Gumtree had not

competed as aggressively as it could have. The NCA reasoned that part of eBay’s

motivation to sell Gumtree to Adevinta consisted in eBay continuing to exercise

some influence on that platform. The concentration was cleared subject to

conditions (on these, see below at para (252)).

117

(88) In Dante International/PC Garage (2016), the Romanian NCA investigated the

acquisition by Dante International, a company that provides an online platform

and also acts as a retailer thereon, of PC Garage, an online consumer goods

retailer. It concluded that the acquisition would further strengthen Dante’s market

position, and would therefore significantly impede effective competition in certain

products. It was only cleared subject to conditions (on these, see below at para

(250)).

118

(89) In NS Groep/Pon Netherlands (2020), the Dutch NCA investigated a joint venture

between NS, the largest provider of public transport by train in the Netherlands,

113

România Consiliul Concurenței, Glovoappro/Foodpanda (86/22.11.2021, 22 November 2021).

114

Comisión Nacional de los Mercados y la Competencia, Schibsted/Milanuncios (C/0573/14, 20

November 2014).

115

Consumer-to-consumer.

116

Bundeswettbewerbsbehörde, eBay/Adevinta (BWB/Z-5141, Z-5142, Z-5420 and Z-5421, 18 June 2021).

117

Competition & Markets Authority, Adevinta/eBay Classifieds Group (ME/6897/20, 16 February 2021).

118

România Consiliul Concurenței, Dante International/PC Garage (84/24.11.2016, 24 November 2016).

Merger review in digital and technology markets: Insights from national case law

and Pon, which produced and imported means of transport. The parties intended

to set up a full-function joint venture in the field of shared mobility through one

central mobile application and specific mobility hubs. The NCA considered that

the joint venture at issue did not raise concerns on horizontal unilateral effects, as

the (retail) market for the integrated provision of transport and mobility services

via an app was developing strongly, and the joint venture would experience

competitive pressure from both local providers of transport modalities and from

providers of integrated mobility services.

119

Commitments were required based

on vertical effects (on these, see below at para (257)).

(90) In Pug/StubHub (2020), the UK NCA focused on horizontal effects between two

close competitors in online exchange platforms for buying and selling tickets to

live events. Together, they would make up between 90-100% of the relevant

market post-merger, with an increment in the range of 30-40% due to the merger.

While Pug’s viagogo had had high market shares for a number of consecutive

years, StubHub had shown strong growth in previous years. There was no

meaningful competitor on the market for secondary ticketing platform services in

the UK, the platforms operated in similar ways and invested heavily in

advertising. viagogo was found to bid ‘on a sizeable proportion of StubHub’s

keywords’ on AdWords, indicating close competition among them. Resellers

regarded the parties as substitutes, and regularly multi-homed. The concentration

was cleared subject to conditions in phase 2 (on these, see below at para (251)).

120

(91) The national case law also allows insights into circumstances when horizontal

unilateral effects were not thought to arise despite the (also) horizontal nature of

the concentration. In a transaction involving two luxury online retailers,

Financière Richmond/Net-A-Porter (2015), the UK NCA noted that the increment

due to the acquisition would be small, and the two parties had different foci and

business models with differentiated offerings and a wide range of alternatives –

no horizontal unilateral effects were therefore thought to arise.

121

A number of

cases relating to IT services did not, in the eyes of the Portuguese and Italian

NCAs, raise any competition concerns due to the small size of both acquirer and

target.

122

Three cases relating to online shopping services did not, according to the

Slovenian NCA, raise any competition concerns because of the low market shares

of the parties or the lack of a Slovenian presence of the acquirer.

123

Two

Hungarian cases, eMAG/Extreme Digital and Netrisk.hu/Biztosítás.hu (both

119

Autoriteit Consument & Markt, NS Groep/Pon Netherlands (ACM/20/038614, 20 May 2020).

120

Competition & Markets Authority, Pug/StubHub (ME/6868/19-II, 2 February 2021).

121

Competition & Markets Authority, Financière Richmond/Net-A-Porter (ME/6538-15, 2 September

2015).

122

Autoridade da Concorrência, KKR/Cabolink (Ccent. 41/2018, 8 November 2018); Autoritá Garante della

Concorrenza e del Mercato, OEP 14 Coöperatief/Techedge (28331, 4 August 2020); Autoridade da

Concorrência, Claranet Portugal/Bizdirect (Ccent. 27/2021, 25 June 2021); Autoridade da Concorrência,

Claranet Portugal/OutScope Solutions (Ccent. 38/2021, 24 August 2021).

123

Javna agencija Republike Slovenije za varstvo konkurence, ECE/ELTUS PLUS (3061-41/2018, 25 April

2019); Javna agencija Republike Slovenije za varstvo konkurence, Shoppster/IDEO PLUS (3061-9/2020-

14, 24 April 2020); Javna agencija Republike Slovenije za varstvo konkurence, Allegro.eu/MIMOVRSTE

(3061-25/2021-6, 24 January 2022)

Merger review in digital and technology markets: Insights from national case law

2019), demonstrated that where online and offline markets can be considered part

of the same relevant market, NCAs may raise less competitive concerns because

of the constraining effect of one distribution channel on the other.

124

(92) Where acquirer and target were not close competitors before the concentration, or

where important competitors remained present post-merger, this would assuage

an NCA’s concerns.

125

Market transparency for consumers – eg induced by online

comparison sites – as well as multi-homing were seen as important factors to

counter-balance possible anti-competitive effects.

126

Competitive constraints

from outside the relevant market were not discarded, e.g., from restaurant-owned

delivery systems for online food ordering or from traditional point of sale

providers for online payment services.

127

(93) Where a market was understood to be dynamic, this would assuage competition

concerns.

128

The same applies to low barriers to entry and expansion, or the

readiness of customers to switch to alternative suppliers.

129

Whether or not an

online platform bound customers through exclusivity clauses was also considered

an important competitive factor.

130

(94) In technology markets, product differentiation could be such that a seemingly

horizontal overlap would not, ultimately, raise any competition concerns.

131

Also,

buyer power could act as a countervailing factor.

132

(95) In already concentrated online markets, NCAs would sometimes welcome a

merger because it could mean that the market would not tip. Multi-homing by

124

Gazdasági Versenyhivatal, eMAG/Extreme Digital (VJ/14/2019, 17 October 2019); Gazdasági

Versenyhivatal, Netrisk.hu/Biztosítás.hu (VJ/12/2019, 12 December 2019). This is also reminiscent of the

French Fnac/Darty merger, see Autorité de la concurrence, Fnac/Darty (16-DCC-111, 27 July 2016).

125

Eg, see Competition & Markets Authority, Betfair Group/Paddy Power (ME/6572/15, 17 December

2015); Competition and Consumer Protection Commission, Paddy Power/Betfair (M/15/059, 15 January

2016); Competition and Consumer Protection Commission, Ladbrokes/Gala Coral (M/16/007, 10 March

2016); Competition & Markets Authority, ZPG/Websky (ME/6690/17, 29 June 2017); Competition &

Markets Authority, Blackbaud/Giving (ME/6700/17, 8 September 2017); Autorité de la concurrence, Axel

Springer/Concept Multimédia (18-DCC-18, 1 February 2018); Competition & Markets Authority,

Moneysupermarket.com/Decision Technologies (ME/6749/18, 7 August 2018); Competition & Markets

Authority, eBay/Motors.co.uk (ME/6774/18, 12 February 2019); Competition & Markets Authority,

Salesforce.com/Tableau Software (ME/6841/19, 22 November 2019).

126

Competition and Consumer Protection Commission, Stars Group/Sky Betting & Gaming (M/18/038, 18

June 2018); Competition & Markets Authority, Google/Looker (ME/6839/19, 13 February 2020);

Competition and Consumer Protection Commission, Flutter Entertainment/Stars Group (M/20/001, 12

May 2020).

127

Comisión Nacional de los Mercados y la Competencia, Just Eat/La Nevera Roja (C/0730/16, 31 March

2016); Competition & Markets Authority, PayPal/iZettle (ME/6766/18-II, 12 June 2019).

128

Malta Competition and Consumer Affairs Authority, GVC Holdings/Ladbrokes Coral Group (COMP-

MCCAA/4/18, 21 March 2018); Comisión Nacional de los Mercados y la Competencia,

Daimler/Hailo/MyTaxi/Negocio Hailo (C/0802/16, 24 November 2016).

129

Urząd Ochrony Konkurencji i Konsumentów, 1&1 Internet/Home.pl (DKK-216/2015, 22 December

2015).

130

Comisión Nacional de los Mercados y la Competencia, Just Eat/La Nevera Roja (C/0730/16, 31 March

2016); Comisión Nacional de los Mercados y la Competencia, Daimler/Hailo/MyTaxi/Negocio Hailo

(C/0802/16, 24 November 2016).

131

Competition and Consumer Protection Commission, Applied Materials/Kokusai Electric Corporation

(M/19/027, 11 October 2019).

132

Competition & Markets Authority, SK hynix/Intel (ME/6913/20, 28 June 2021).

Merger review in digital and technology markets: Insights from national case law

users or customers was equally seen as a remedy against market tipping.

133

NCAs

also took into account the peculiarities of specific online platforms, e.g., the fact

that network effects for online dating portals tended to be less pronounced because

users usually multi-homed and were not – if the portal was successful – locked in

for a long time,

134

or the fact that new competition was on the horizon in a

concentrated market.

135

(96) The presence of Big Tech companies such as Amazon, Apple, Facebook (now:

Meta), Google (now: Alphabet) or Microsoft was repeatedly held to constitute an

important factor when concluding that a digital acquisition by a non-Big Tech

company did not raise competition concerns.

136

(97) The possibility that a (smaller) national online market could be constrained by a

(larger) pan-European online market was taken into account in individual cases.

137

However, no horizontal unilateral effects were thought to arise despite a

horizontal overlap in the digital service concerned when two completely different

geographical markets (in casu: UK – US) were concerned.

138

c. Discussion

(98) The 51 national cases in which loss of an actual competitor was considered as a

possible theory of harm show how this theory of harm can be and has been adapted

to digital and technology markets. In particular, the various factors that have been

considered by NCAs on a case-by-case basis allow a glimpse into how flexible

this theory of harm is. Multi-homing or dual vendor strategies are regularly

assessed, and the nature of competition in digital markets is considered in some

detail when the possibility of market tipping and the importance of network effects

is assessed.

(99) The four prohibitions and one withdrawal based on the loss of an actual competitor

occurred in diverse market settings, ranging from real estate platforms to online

ticketing, augmentative assistive communication and technology solutions for

airlines. This shows that this type of competition concern, which was the most

prevalent theory of harm applied in case of a prohibition, can arise in multiple

digital market settings. CTS Eventim/Four Artists (2017)

139

demonstrated how

several acquisitions in a row can lead to a situation where one further acquisition

133

Eg, see Bundeskartellamt, Axel Springer/Immowelt (B6-39/15, 20 April 2015).

134

Bundeskartellamt, OCPE II Master (Parship)/EliteMedianet (B6-57/15, 22 October 2015).

135

Competition & Markets Authority, Just Eat/Hungryhouse (ME/6659-16-II, 16 November 2017).

136

Eg, see Autorité de la concurrence, Axel Springer/Concept Multimédia (18-DCC-18, 1 February 2018);

Autorité de la concurrence, TF1/Aufeminin (18-DCC-63, 23 April 2018); Autoridade da Concorrência,

Sonae/CTT - Correios de Portugal JV (Ccent. 27/2018, 19 July 2018); Bundeskartellamt, PayPal/Honey

Science (B6-86/19, 17 December 2019); Autoriteit Consument & Markt, DPG/Sanoma (ACM/19/038207,

10 April 2020); Competition and Consumer Protection Commission, Booster/Liftoff Mobile (M/21/002, 15

February 2021); Comisión Nacional de los Mercados y la Competencia, Turnitin/Ouriginal Group

(C/1220/21, 19 October 2021).

137

Comisión Nacional de los Mercados y la Competencia, Turnitin/Ouriginal Group (C/1220/21, 19

October 2021).

138

Competition & Markets Authority, Auction Technology Group/Live Auctioneers (ME/6942/21, 29

September 2021).

139

Bundeskartellamt, CTS Eventim/FKP Scorpio (B6-53/16, 3 January 2017).

Merger review in digital and technology markets: Insights from national case law

can be seen as a red flag, while Tobii/Smartbox (2019)

140

provided a good

indication of when competition from non-specialised products may not be a

competitive constraint on a specialised product.

(100) Of the 9 conditional clearances that involved an analysis of the loss of an actual

competitor, 3 concerned food delivery platforms. A further 3 conditional

clearances related to classified advertising. Other cases that were cleared subject

to commitments related to online retailing, ticketing platforms, and a shared

mobility platform. Overall, this highlights areas in which competition concerns

appear to arise regularly, and that can be addressed through appropriate remedies.

(101) In the Austrian and UK Adevinta/eBay cases, it could be seen how competition

concerns can specifically relate to national players active on national online

markets, requiring different remedies in different settings. The competitive

constraints may need to be assessed differently depending on the national platform

landscape. This was also reflected in the respective commitments accepted in

those two cases.

(102) The research carried out for this Report has brought to light that it would be

beneficial to set out more clearly those factors that come into play when assessing

horizontal theories of harm in digital market environments in order to allow for a

more structured analysis. This, in particular, applies to multi-homing, multi-

sidedness, the presence of Big Tech in a market, the impact of product

differentiation, market transparency through online comparison sites, and the

assessment of closeness of competition in the face of data advantages that span

multiple markets. Also, the importance of product differentiation needs to be re-

evaluated in the face of ever-changing functionalities of digital platforms –

something that might be assessed differently in technology markets.

(103) It would also be useful to establish under which circumstances market tipping

could be achieved – or prevented – by a digital merger.

141

(104) When comparing the national cases to a number of mergers cleared by the

European Commission, it becomes apparent that the factors on which those cases

rely upon are near-identical: As was the case in a number of national cases, the

European Commission in Avago/Broadcom (2015) relied on the combined market

share of the merged entity, the small increment that the transaction would lead to,

and a sufficient number of remaining suppliers to conclude that no horizontal

unilateral effects would arise.

142

Similarly, in Microsoft/GitHub (2018) the

Commission reasoned that the small horizontal overlap between the parties, the

fact that they were not close competitors and the number of remaining competitors

in software development and operations tools meant that horizontal unilateral

effects were unlikely to arise post-merger.

143

In Broadcom/Symantec Enterprise

Security Business (2019), the low combined market shares of the merged entity as

140

Competition & Markets Authority, Tobii/Smartbox (ME/6780/18-II, 15 August 2019).

141

Isabelle de Silva, ‘Assessing online platform mergers: Taking up the new challenges faced by the French

Competition Authority in the digital economy’ (N° 2-2018) Concurrences 39, paras 31 ff.

142

European Commission Decision of 23 November 2015, M.7686 – Avago/Broadcom, paras 68 ff.

143

European Commission Decision of 19 October 2018, M.8994 – Microsoft/GitHub, paras 81 ff.

Merger review in digital and technology markets: Insights from national case law

well as the competitive constraints from remaining competitors on the market and

the fact that acquirer and target were not close competitors also led the

Commission to conclude that no unilateral effects would arise.

144

(105) In the Facebook/WhatsApp (2014) merger, the European Commission found that

the merging parties were not close competitors based on differences in the

offerings of their consumer communication services.

145

With the benefit of

hindsight, it could be argued that this dynamic market setting may now be seen in

a somewhat different light, with the Federal Trade Commission indeed

retrospectively challenging this acquisition – which it did not oppose – under a

claim of monopolization,

146

an instrument that is not available in the EU.

(106) In digital merger cases, the creation and strengthening of a dominant position need

to be closely related to the market characteristics. As the European Commission

already pointed out in Microsoft/Skype (2011), market shares may not be good

indicators of market power in highly dynamic markets.

147

(107) The presence of Big Tech in certain markets was regularly seen as a countervailing

factor by NCAs. Interestingly, the European Commission also regarded the strong

presence of Google and Facebook in online advertising to act as a competitive

constraint on another Big Tech company – namely Apple – in Apple/Shazam

(2018).

148

In this regard, NCAs need to ensure that where Big Tech platforms are

not yet active on a given market, their entry in the foreseeable future is credible,

as otherwise their presence would not represent a competitive constraint on the

merged entity.

149

(108) Google’s and Facebook’s overbearing presence in online advertising was

repeatedly held by NCAs to constitute a factor that favours the clearance of a

digital merger in which Google was not a party.

(109) In the national cases that were assessed, none could be observed that assessed the

data advantage gained through the merger in as much depth as the European

Commission’s Google/Fitbit case of 2020.

150

This is further discussed below (para

(240)). It is possible, however, that national merger control is not yet to a large

extent confronted with cases where data advantages can be identified, especially

because the major Big Tech mergers generally come before the European

Commission, either directly or through a referral (Articles 4 and 22 EUMR).

144

European Commission Decision of 30 October 2019, M.9538 – Broadcom/Symantec Enterprise Security

Business.

145

European Commission Decision of 3 October 2014, COMP/M.7217 – Facebook/WhatsApp, paras 101

ff, 118 (referring to the market’s dynamism).

146

Federal Trade Commission v Facebook, US District Court for the District of Columbia, Case 1:20-cv-

3590 (11 January 2022).

147

European Commission Decision of 7 October 2011, COMP/M.6281 – Microsoft/Skype, para 70-72, 78;

upheld in Case T-79/12 Cisco Systems and Messagenet v Commission, ECLI:EU:T:2013:635.

148

European Commission Decision of 6 September 2018, M.8788 – Apple/Shazam.

149

de Silva (n 141) para 73.

150

European Commission Decision of 17 December 2020, M.9660 – Google/Fitbit.

Merger review in digital and technology markets: Insights from national case law

ii. Coordinated effects

a. Specificities of the theory of harm

(110) A horizontal merger may change the market structure in a way that it becomes

‘possible, economically rational, and hence preferable’, for companies to reach a

common understanding aimed at increasing prices, limiting production or dividing

the market.

151

In order for such coordination to be sustainable, an authority will

assess three factors that need to be fulfilled cumulatively: the ability to monitor

competitors’ behaviour on the market (i.e., a certain transparency), the possibility

of a credible deterrent mechanism, and no possibility for third parties (customers

or competitors) to jeopardise the coordinated behaviour.

152

b. NCAs applying the theory of harm in digital and technology mergers

(111) Only 4 of the 69 cases analysed in-depth concerned horizontal coordinated effects,

all of which were unconditionally cleared. In the majority of cases, these concerns

were discussed in relation with the loss of an actual competitor.

153

(112) In three German cases, horizontal coordinated effects were directly addressed. In

Axel Springer/Immowelt (2015), the Axel Springer group planned to acquire

Immowelt on the market for online real estate platforms. The German NCA

considered coordinated effects but concluded that the risk of collusion in a two-

sided market such as the one at issue (online real estate platforms) was lower than

in traditional markets, especially as the two remaining players – one of which was

the merged entity – had considerable structural differences.

154

Similarly, in

ProSiebenSat.1/Verivox (2015) the German NCA concluded that in a merger

involving comparison platforms for final consumer contracts, the merger would

reduce the likelihood of collusion between the merged entity and its main

competitor by leading to further asymmetries among them.

155

Parship/EliteMedianet (2015), the German NCA regarded the continued presence

of a varied field of competitors as a countervailing factor to possible coordinated

effects on the national market for online dating platforms.

156

c. Discussion

(113) The considerations found in national cases show that the characteristics of certain

multi-sided digital platform markets were thought to mitigate the risk of

horizontal coordinated effects, especially where asymmetries between the

remaining competitors were created through a merger.

151

European Commission, Horizontal Merger Guidelines 2004, para 39 (direct quote); Competition &

Markets Authority, Merger Assessment Guidelines 2021, para 6.1.

152

European Commission, Horizontal Merger Guidelines 2004, para 41.

153

Eg, see Autorité de la concurrence, Axel Springer/Concept Multimédia (18-DCC-18, 1 February 2018).

154

Bundeskartellamt, Axel Springer/Immowelt (B6-39/15, 20 April 2015).

155

Bundeskartellamt, ProSiebenSat.1/Verivox (B8-76/15, 24 July 2015).

156

Bundeskartellamt, OCPE II Master (Parship)/EliteMedianet (B6-57/15, 22 October 2015).

Merger review in digital and technology markets: Insights from national case law

iii. Loss of a potential competitor – non-coordinated or coordinated

effects

a. Specificities of the theory of harm

(114) The loss of potential or future competition is a further theory of harm in horizontal

mergers. While one merging party will already be active on a relevant market, the

other might only contemplate entry. In the eyes of the European Commission, this

theory of harm will only apply where the potential competitor already poses an

important competitive constraint or there is a significant likelihood for it to

become an important competitor.

157

Also, there will be no competition concerns

if other potential competitors could, post-merger, maintain the competitive

pressure.

158

(115) The UK’s Competition & Markets Authority highlights that either party may be

the potential competitor.

159

It also underscores that loss of dynamic competition

can be particularly problematic in digital platform markets, ‘where the costs and

time required to build up a significant user base and achieve network efficiencies

might involve years of losses’.

160

(116) The Competition & Markets Authority suggests assessing two questions when the

loss of potential competition is at issue, namely:

• ‘whether either merger firm would have entered or expanded absent the

merger, and

• whether the loss of future competition brought about by the merger would

give rise to a[ substantial lessening of competition], taking into account other

constraints and potential entrants.’

161

b. NCAs applying the theory of harm in digital and technology mergers

(117) In 6 of 69 cases analysed in-depth, the loss of a potential competitor was

addressed. Of these cases, 5 came from the UK alone. One such case led to

conditional clearance in phase 2, while another led to a prohibition; a further one

was conditionally cleared in phase 1.

(118) In Meta/Giphy, global technology company Meta (formerly Facebook), with

strong market positions in both social media and display advertising, acquired

Giphy, the world’s leading provider of free GIFs and GIF stickers. Markets

affected included the market for searchable GIF libraries, social media and display

advertising. Both the Austrian

162

and the UK

163

NCAs were concerned that the

acquisition at issue could stifle potential competition between Meta and Giphy for

advertising clients, as Giphy had rolled out a promising advertising service before

157

European Commission, Horizontal Merger Guidelines 2004, para 60.

158

European Commission, Horizontal Merger Guidelines 2004, paras 58-60.

159

Competition & Markets Authority, Merger Assessment Guidelines 2021, para 5.1. Indeed, this is the

type of scenario it assessed in Competition & Markets Authority, Amazon/Roofoods (ME/6836/19-II, 4

August 2020), a case which preceded the current guidance.

160

Competition & Markets Authority, Merger Assessment Guidelines 2021, para 5.4.

161

Competition & Markets Authority, Merger Assessment Guidelines 2021, para 5.7.

162

Kartellgericht, 22 July 2021, 28 Kt 6/21y – Meta/Giphy.

163

Competition & Markets Authority, Meta/Giphy (ME/6891/20-II, 6 December 2021).

Merger review in digital and technology markets: Insights from national case law

the acquisition that allowed it to monetise its services – and that could have

competed with Meta’s display advertising services. In light of Meta’s significant

market power, both in the supply of social media and display advertising services,

the UK NCA considered that the acquisition of this potential competitor was

significant because Giphy not only had the potential to compete with Meta but

had also had plans to move into the UK market. Network effects in those markets

and high entry barriers – namely related to interoperability and access to data

164

–

were equally considered. The UK NCA concluded that based on the acquisition

of a potential competitor, the acquisition would substantially lessen competition.

It required a full divestiture of Giphy (see also below, paras (285) f).

165

The case

was on appeal before the Competition Appeal Tribunal, which in June 2022

dismissed Meta’s substantive claims and only upheld part of its appeal relating to

the UK NCA’s failure to consult with the parties.

166

In order to remedy this

situation, the Competition Appeal Tribunal ‘invite[d] the parties to consider what

consequential orders should be made’

167

and it remains unclear how this issue will

be resolved. One possibility is for the UK NCA to consider its procedural

shortcomings and readopt its decisions after remedying them.

168

(119) Following an application from the Austrian NCA, the Austrian Cartel Court took

a different view and conditionally cleared Meta’s acquisition of Giphy subject to

access commitments (see para (255)). This conditional clearance was confirmed

by Austria’s Supreme Cartel Court in June 2022.

169

(120) The Meta/Giphy cases illustrate that while one NCA may view a remedy as

sufficient to address a particular competition concern, another NCA may reach a

different conclusion on the same matter. While these parallel cases were pursued

by one NCA from inside the EU and another from outside the EU, it is to be hoped

that no such inconsistencies would arise within the EU.

170

(121) In Adevinta/eBay Classifieds Group (2021), the UK NCA was concerned that the

concentration would hinder actual or potential competition between online

classified advertising platforms. The concentration was cleared subject to

conditions that included the divestiture of two services (on these, see below para

(252)).

171

164

In this respect, the UK NCA relied on its previous Market Study; Competition & Markets Authority,

Meta/Giphy (ME/6891/20-II, 6 December 2021) paras 28 f, 2.23 ff, 5.7 ff; Competition & Markets

Authority, ‘Online Platforms and Digital Advertising Market Study’ (July 2020).

165

Competition & Markets Authority, Meta/Giphy (ME/6891/20-II, 6 December 2021).

166

Meta/Giphy, [2022] CAT 26, 14 June 2022.

167

Meta/Giphy, [2022] CAT 26, 14 June 2022, para 177.

168

Victoria Ibitoye, ‘Meta scores procedural win in appeal of UK Giphy selloff order, but impact remains

to be seen’ MLex (14 June 2022)

<https://content.mlex.com/#/content/1385154?referrer=portfolio_openrelatedcontent>.

169

Kartellgericht, 22 July 2021, 28 Kt 6/21y – Meta/Giphy; Bundeswettbewerbsbehörde, ‘Meta

(Facebook)/Giphy merger: AFCA appealing against conditional clearance’ (4 March 2022)

<https://www.bwb.gv.at/en/news/news-2022/detail/meta-facebook-giphy-merger-afca-appealing-against-

conditional-clearance>; Kartellobergericht, 23 June 2022, 16 Ok 3/22k and 16 Ok 4/22g – Meta/Giphy.

170

Indeed, the parallel cases in Meta/Kustomer (EU and DE 2022) did not give rise to such an inconsistency.

171

Competition & Markets Authority, Adevinta/eBay Classifieds Group (ME/6897/20, 16 February 2021).

Merger review in digital and technology markets: Insights from national case law

(122) In Amazon/Roofoods (2020), the main theory of harm assessed by the UK NCA

concerned the loss of a potential competitor. After Amazon abandoned its market

presence in online restaurant platforms in the UK, it set out to acquire a 16%

shareholding in Deliveroo, a restaurant delivery platform. The NCA assessed

whether it would be likely – absent the transaction – that Amazon would re-enter

that market, given its strong and continued interest in the online restaurant

platforms market. It also assessed whether such entry would lead to greater

competition. The fact that Amazon would only acquire a 16% stake in Deliveroo,

rather than a larger one, was decisive in this case. This stake, together with the

rights associated with that stake and Amazon’s special status as strategic investor,

was considered to provide Amazon with the ability to exercise material influence

over Deliveroo’s commercial policy. Two scenarios were assessed by the NCA:

Concerning unilateral effects on the entry decision, the authority concluded that it

was not sufficiently likely that Amazon’s 16% stake in Deliveroo would keep it

from re-entering the market in the face of strong financial incentives to do so. The

NCA also assessed what unilateral effects could arise should Amazon re-enter the

market. While Amazon could adopt a strategy to compete less aggressively to

internalise Deliveroo’s profits, the 16% stake in Deliveroo would not provide a

strong enough incentive for this theory of harm to be credible or to influence

market outcomes. Amazon could also encourage Deliveroo to compete less

aggressively against it. However, the authority considered that there was strong

competition between Deliveroo, Uber Eats and Just Eat, limiting Deliveroo’s

scope to compete less strongly.

172

(123) In that same case, the UK NCA also considered possible horizontal unilateral

effects in the supply of online convenience grocery (OCG) shopping. The NCA

considered the offerings by Amazon and Deliveroo in OCG to be quite

differentiated. A number of competitors existed on that market, including online

restaurant delivery providers (e.g., Just Eat, Uber Eats), traditional grocers and

convenience stores (e.g., Waitrose, Sainsbury’s, Co-op), as well as grocery

delivery specialists (e.g., Ocado). Further expansion was to be expected, also

against the background of Covid-19. As a first theory of harm, the NCA assessed

(i) Amazon’s ability to discourage Deliveroo from competing against Amazon in

OCG. It then asked (ii) whether Amazon could protect its investment by avoiding

direct competition with Deliveroo in OCG. In both cases, it concluded that while

Amazon would have material influence on Deliveroo, its 16% stake would not

allow it to set Deliveroo’s policies single-handedly, and outside competition

would constrain it in doing so. Finally, the NCA assessed (iii) whether Amazon

could rely on Deliveroo for its presence in OCG rather than developing its own

service. Here, it was also considered that Amazon might regard the transaction as

a first step towards full acquisition of the target. Viewed within the broader

context of the OCG market, the NCA concluded that other competitors were well-

172

Competition & Markets Authority, Amazon/Roofoods (ME/6836/19-II, 4 August 2020).

Merger review in digital and technology markets: Insights from national case law

placed to compete in the OCG market and no substantiated competition concerns

would arise.

173

The transaction was unconditionally cleared.

(124) In PayPal/iZettle (2019), the UK NCA considered whether iZettle, a financial

technology company providing payment services to small businesses, would have

developed a more comprehensive offer competing with PayPal’s service, leading

to a situation in which potential competition was being eliminated through a

merger. It concluded, however, that absent the merger iZettle would have focused

on its core business rather than on developing such a comprehensive service.

174

The transaction was unconditionally cleared.

(125) In Uber International/GPC Computer Software (2021), Uber, a provider of ride-

hailing services, wanted to acquire GPC Computer Software (Autocab), a

company that (i) develops and supplies booking and dispatch technology (BDT)

enabling taxi companies to connect drivers to end customers, and that (ii) operates

the iGo network that connects demand for taxi trips with supply for taxi trips. The

UK NCA assessed whether the acquisition could lead to a loss of potential

competition. For this, it analysed whether GPC’s services would have developed

to compete with Uber’s services. It concluded that GPC was unlikely to develop

a stand-alone consumer-facing app that would directly compete with Uber’s app.

It was also unlikely that GPC’s iGo network would grow to become a significant

competitor to Uber.

175

The transaction was unconditionally cleared.

c. Discussion

(126) In the context of digital markets, the loss of potential competition may well

represent a theory of harm that competition authorities need to consider more

frequently. Where a digital platform buys a potential competitor in order to

prevent any competition from arising, this will necessarily affect innovation,

choice and the quality of services. As the national cases have shown, each case

needs to be assessed based on its specific facts in order to allow for a proper

appraisal of potential competition and the merger’s impact thereon.

(127) Concerns related to potential competition would be the area where one would

expect theories of harm related to so-called ‘killer acquisitions’ to be found, where

an acquirer uses M&A in order to kill off potential competitors. However, in

digital and technology markets, acquirers do not usually buy start-ups to actually

discontinue their innovation, but rather to incorporate their digital services and

capabilities into their own digital ecosystem. As such, killer acquisitions in

pharmaceuticals

176

cannot be likened to M&A in digital markets. Also, in the

national cases that were analysed, very few cases addressed this type of concern.

(128) In two cases in which the UK NCA assessed whether, absent the merger, the target

would have developed its digital services in a way so as to more fully compete

173

Competition & Markets Authority, Amazon/Roofoods (ME/6836/19-II, 4 August 2020).

174

Competition & Markets Authority, PayPal/iZettle (ME/6766/18-II, 12 June 2019).

175

Competition & Markets Authority, Uber International/GPC Computer Software (ME/6903/20, 29

March 2021).

176

On these, see Cunningham, Ederer and Ma (n 5).

Merger review in digital and technology markets: Insights from national case law

with the acquirer,

177

the NCA found that this was not a likely scenario because the

target would have more likely focused on its core business. This type of analysis

may come up more frequently in digital markets where a smaller company

requires its resources to keep its core business running, while bigger players often

have a broader portfolio that they can enrich by buying smaller (potential)

competitors.

(129) The Amazon/Roofoods case is particularly instructive as it highlighted how a

digital ecosystem’s acquisition of a digital platform could lead to competition

concerns in various related markets based on the capabilities of the acquirer.

While the low shareholding that Amazon set out to acquire led to the conclusion

that no competition concerns would arise, a higher stake may well have led to a

different outcome. This again confirms that a case-by-case analysis of factors

present in each individual case is necessary in order to appraise the consequences

of a particular merger for competition.

(130) The Commission emphasised the criteria it applies to the acquisition of a potential

competitor in Apple/Beats (2014), where it found that the acquisition of music

streaming service Beats by Apple would not eliminate a potential competitor that

was set to be a significant competitive constraint on Apple’s iTunes service.

178

iv. Other horizontal theories of harm

a. Specificities of the theory of harm

(131) Increasing the merged entity’s buyer power in an upstream market may constitute

an additional theory of harm in a horizontal context.

179

Furthermore, the

acquisition of commercially sensitive information in a horizontal context may also

raise competition concerns and can be analysed together with.

b. NCAs applying the theory of harm in digital and technology mergers

(132) In only 5 of 69 cases, NCAs addressed horizontal theories of harm not covered by

the categories above. One such case was prohibited only based on such a theory

of harm, while another was cleared subject to conditions. 3 further cases were

unconditionally cleared.

(133) In the Meta/Giphy case (2022) that was conditionally cleared in Austria, the

Austrian NCA was concerned that by granting Meta access to sensitive

commercial information about competing online services based on other apps’

integrated interface with the Giphy library, anti-competitive effects could arise.

180

(134) In Meta/Kustomer (2021), Meta intended to acquire Kustomer, the provider of a

software as a service (SaaS) customer relationship management (CRM) software

that can be used for business to consumer (B2C) communications. Markets

177

Competition & Markets Authority, PayPal/iZettle (ME/6766/18-II, 12 June 2019); Competition &

Markets Authority, Uber International/GPC Computer Software (ME/6903/20, 29 March 2021).

178

European Commission Decision of 25 July 2014, COMP/M.7290 – Apple/Beats, paras 35-40.

179

European Commission, Horizontal Merger Guidelines 2004, para 61.

180

Kartellgericht, 22 July 2021, 28 Kt 6/21y – Meta/Giphy; Kartellobergericht, 23 June 2022, 16 Ok 3/22k

and 16 Ok 4/22g – Meta/Giphy; Bundeswettbewerbsbehörde (n 169).

Merger review in digital and technology markets: Insights from national case law

affected included not only the market for the supply of B2C communication via

messaging channels but also the market for service and support related to CRM

software and the market for online display advertising. The UK NCA investigated

whether the acquisition could further strengthen Meta’s data advantage in online

display advertising, leading to higher barriers to entry and expansion and reduced

competition. While the authority emphasised Meta’s competitive advantage due

to its access to data, and while it also acknowledged that the merger would

increase that advantage, it underlined that additional data gains through Kustomer

would be small, due to its size and also taking into account its growth potential,

and wouldn’t raise competition concerns. The NCA also pointed to the possibility

for competitors to access similar data as Meta would gain through the acquisition.

The transaction was unconditionally cleared.

181

The European Commission only

cleared this transaction subject to conditions.

182

(135) In TF1/Aufeminin (2018), TF1, a major player in free and pay-TV, wanted to

acquire Aufeminin, a digital company amongst others involved in running

websites, online advertising and online retailing. The French NCA assessed

competitors’ concerns that post-merger, TF1 could use the data obtained through

Aufeminin to improve its monetisation of online advertising spaces. However, the

merged entity would have a very low coverage rate of the female population it

aimed at (between 5 and 7%), compared to coverage rates of 79% for Google and

68% for Facebook. Therefore, the NCA did not expect horizontal effects to arise

and the transaction was unconditionally cleared.

183

(136) In Parship/EliteMedianet (2015), the German NCA had considered that two

merging online dating portals were not close enough competitors for other non-

coordinated horizontal effects to arise.

184

(137) An entirely different concern was at stake in Magyar RTL Televízió/Central

Digitális Média (2017), where Magyar RTL Televízió (RTL) intended to acquire

30% of the shares of Central Digitális Média (CDM), providing RTL the right of

control over CDM. RTL was a member of the Bertelsmann group, which operates

a number of TV channels, provides broadcasting services and advertising time,

and operates several websites. CDM published online press products and

advertising space therein. The Hungarian NCA prohibited an acquisition based on

the media authority’s refusal to approve the concentration for reasons of media

pluralism (see also para (280)).

185

While the Metropolitan Court of Budapest as

the first instance court upheld the authority’s decision,

186

the Hungarian Supreme

Court annulled it and ordered the authority to conduct a new competition

181

Competition & Markets Authority, Meta/Kustomer (ME/6920/20, 27 September 2021).

182

European Commission Decision of 27 January 2022, M.10262 – Meta/Kustomer.

183

Autorité de la concurrence, TF1/Aufeminin (18-DCC-63, 23 April 2018).

184

Bundeskartellamt, OCPE II Master (Parship)/EliteMedianet (B6-57/15, 22 October 2015).

185

Gazdasági Versenyhivatal, Magyar RTL Televízió/Central Digitális Média (Vj/87/2016, 24 January

2017).

186

Fővárosi Törvényszék, Magyar RTL Televízió/Central Digitális Média (21.K.700.023/2018/12, 8 June

2018).

Merger review in digital and technology markets: Insights from national case law

proceeding.

187

As the vendor subsequently abandoned the transaction, the

Hungarian NCA terminated these proceedings.

188

While these types of concerns

lie outside the scope of this Report, they are bound to arise more frequently as

digital media gains a stronger foothold.

c. Discussion

(138) In terms of other horizontal theories of harm, it can clearly be seen that the

strengthening of a data advantage is a common theme among a number of national

mergers from different jurisdictions. This is also confirmed when looking at other

vertical non-coordinated effects that equally focus on the data advantage that a

merger may strengthen (see below, paras (196), (237) ff). To become more

operational, data-related theories of harm would do well with a more in-depth

analysis and an elaboration of possible benchmarks for assessing when the

strengthening of a data advantage becomes such as to warrant intervention in a

merger case. The ubiquitous, non-rivalrous nature of data needs to be contrasted

with realistic opportunities for different players to access such data.

(139) At the national level, commitments based on data-related concerns have been

required, but not when the latter were raised as a possible horizontal concern but

rather when they were assessed under a vertical theory of harm or a conglomerate

theory of harm.

(140) By contrast, the European Commission has previously assessed the data

advantage an acquisition can give rise to under a horizontal theory of harm in

Google/Fitbit (2021), which will be further discussed below (para (240)). More

recently, this was also analysed in the 2022 conditional clearance of

Meta/Kustomer.

189

2. Vertical theories of harm

(141) Vertical effects arise in concentrations that involve companies that are active at

different levels of the supply chain, eg between a manufacturer and a retailer or

between the supplier of a raw material and a manufacturer.

190

A number of

theories of harm related to vertical mergers can be distinguished that are briefly

set out below, followed by an analysis of how these particular theories of harm

were applied in the digital and technology merger cases that were identified on a

national level. Where appropriate, parallels to European Commission cases are

drawn in the discussion that follows.

(142) In general, the approach to vertical and conglomerate mergers has been more

lenient as they do not lead to the loss of direct competition.

191

However, based on

the specific market characteristics in digital and technology sectors, this insight

187

Kúria, Magyar RTL Televízió/Central Digitális Média (Kf.IV.38.095/2018/10, 9 December 2019).

188

RTL continues to pursue this case before the Constitutional Court of Hungary.

189

European Commission Decision of 27 January 2022, M.10262 – Meta/Kustomer.

190

European Commission, Guidelines on the assessment of non-horizontal mergers under the Council

Regulation on the control of concentrations between undertakings (Non-horizontal Merger Guidelines

2008) [2008] OJ C265/6, para 4.

191

European Commission, Non-horizontal Merger Guidelines 2008, para 11 f.

Merger review in digital and technology markets: Insights from national case law

now has to be questioned, and this conclusion is starting to be reflected in several

of the national cases discussed below.

i. Non-coordinated effects: Input foreclosure

a. Specificities of the theory of harm

(143) Input foreclosure occurs where the merged entity either refuses to supply its

downstream competitors with an input or does so on less favourable terms.

192

This

can in turn raise rivals’ costs, ultimately leading to higher prices for consumers.

To assess whether this type of competitive harm would arise, an authority will

assess the (a) ability and (b) incentive of the merged entity to engage in such

behaviour, as well as (c) the effects of such behaviour on competition

downstream.

193

(144) Concerning the ability to engage in input foreclosure, an authority will usually

assess whether the input concerned is important for the downstream product, e.g.,

because it is a critical component, a significant source of product differentiation

or because switching suppliers is costly. Concerns may arise when the vertically

integrated firm has significant market power in the upstream market.

194

Concerning the incentive to engage in input foreclosure, an authority will typically

assess whether this strategy would be profitable and whether the entity has

engaged in such strategies in the past.

195

While the impact of a foreclosure strategy

on competition is assessed as a final element with a particular emphasis on price

effects,

196

digital and technology markets may require different parameters

compared to more traditional markets. For instance, parameters may include the

access to data that is relevant for competition, the strengthening of a digital

ecosystem, and more.

(145) Input foreclosure will only be seen as problematic where it concerns an important

input for the downstream market, and where the merged entity has a significant

degree of market power upstream.

197

b. NCAs applying the theory of harm in digital and technology mergers

(146) A total of 27 of 69 cases that were analysed in-depth assessed the possibility of

vertical input foreclosure following the merger, making this the most prevalent

vertical theory of harm addressed in the national cases under scrutiny. Of these,

12 cases also addressed a further vertical theory of harm, 20 cases also addressed

a horizontal theory of harm, and 5 also addressed a conglomerate theory of harm.

192

European Commission, Non-horizontal Merger Guidelines 2008, para 31; Competition & Markets

Authority, Merger Assessment Guidelines 2021, para 7.9.

193

European Commission, Non-horizontal Merger Guidelines 2008, para 32; Competition & Markets

Authority, Merger Assessment Guidelines 2021, para 7.10.

194

European Commission, Non-horizontal Merger Guidelines 2008, paras 33-35; Competition & Markets

Authority, Merger Assessment Guidelines 2021, para 7.14.

195

European Commission, Non-horizontal Merger Guidelines 2008, paras 40-46; Competition & Markets

Authority, Merger Assessment Guidelines 2021, para 7.19.

196

European Commission, Non-horizontal Merger Guidelines 2008, para 47.

197

European Commission, Non-horizontal Merger Guidelines 2008, paras 34-35.

Merger review in digital and technology markets: Insights from national case law

3 cases addressed all three types of harm. No case exclusively addressed vertical

input foreclosure.

(147) Of all cases that (also) concerned vertical input foreclosure, 2 concentrations were

prohibited, but always in combination with a horizontal theory of harm. 2 cases

led to remedies in phase 1 and a further 3 in phase 2. 18 concentrations were

unconditionally cleared in phase 1 and a further one in phase 2.

(148) The Swedish concentration of Swedbank Franchise/Svensk Fastighetsförmedling

(2014) was blocked because of concerns about vertical input foreclosure, among

others. After the acquisition, Swedbank Franchise would directly and indirectly

strengthen its influence over Hemnet, to the extent that it could change its business

model. Hemnet was the biggest Swedish portal for real estate advertisements. Not

only did Hemnet have high market shares, but it was also an unavoidable trading

partner. Barriers to entry for potential competitors were high, as Hemnet was

owned by real estate agents themselves and they would thus have no incentive to

support a new platform. Hemnet would have the ability and incentive to engage

in input foreclosure vis-à-vis competing real estate agents, e.g., by extracting

monopoly profits or by engaging in price differentiation. The Swedish NCA

concluded that this would significantly impede effective competition, the

Stockholm District Court concurred and a divestiture was ordered (see also para

(278)).

198

(149) Tobii/Smartbox (2019) was blocked by the UK NCA, among others due to vertical

input foreclosure effects. Concerning a possible input foreclosure of Smartbox’s

Grid software, the authority found that the merged entity would likely have both

the ability and incentive to rely on its strong market position in augmentative

assistive communication (AAC) software in order to foreclose downstream

competitors, e.g., by making their access to its popular software more expensive

or of lower quality. Due to consumer demand, downstream competitors were

unable to switch away from Smartbox’s software. The merger increased the

incentive to engage in such a foreclosure strategy. Another theory of harm relating

to input foreclosure of Tobii’s eye gaze cameras was dismissed because such a

strategy might lead to switching to alternative eye gaze cameras, which were

available on the market.

199

On the prohibition, see also paras (281) f.

(150) Vertical input foreclosure was one of the theories of harm that led the UK NCA

to prohibit the Meta/Giphy merger (2021) in phase 2. The UK NCA assessed

whether Meta could foreclose competitors in the market of social media services

by preventing their access to Giphy’s GIFs, a format that users of social media

platforms heavily relied on. Apart from Giphy, the only other comparable service

was Google’s Tenor. Post-merger, Meta would have the ability to engage in input

foreclosure. Based on the benefits awaiting Meta, it would also have the incentive

to do so because users wanting to use Giphy’s GIF library may very well switch

198

Stockholms tingsrätt, Swedbank Franchise/Svensk Fastighetsförmedling (T 3629-14, 16 December

2014).

199

Competition & Markets Authority, Tobii/Smartbox (ME/6780/18-II, 15 August 2019).

Merger review in digital and technology markets: Insights from national case law

to one of the Meta platforms. The NCA emphasised how network effects would

further amplify this effect and how the overall strategy would further strengthen

Meta’s market power in the supply of social media services and have a negative

impact on competition. The NCA also highlighted the dynamic nature of the

multi-sided markets at issue, which led to a lessening of competition on one

market (such as the supply of social media services) exacerbating anti-competitive

effects on another (such as the supply of display advertising). While Meta offered

commitments to the NCA, these were not regarded as sufficient and Meta was

therefore ordered to fully divest Giphy (see also below, paras (285) f).

200

The

Competition Appeal Tribunal almost entirely dismissed Meta’s appeal, and the

UK NCA together with the parties must now determine how to proceed based on

the lack of consultation that the Competition Appeal Tribunal has found.

201

(151) In the Austrian Meta/Giphy (2022) case, the NCA noted that the acquisition may

restrict non-discriminatory access to Giphy for other online services. On the

conditions for clearance imposed by the Cartel Court, see para (255) below. The

Cartel Court’s conditional clearance was confirmed by the Supreme Cartel Court

in June 2022.

202

(152) In CTS Eventim/Barracuda Holding (2019), CTS Eventim, a German provider of

ticketing and live entertainment with a strong market presence in Austria through

oeticket, wanted to acquire 71% of shares and sole control of Barracuda Holding,

an Austrian provider of concerts. The Austrian NCA was concerned that, post-

merger, the merged entity could engage in input foreclosure by making it harder

for ticketing providers to access organisers of live events. The concentration was

cleared subject to conditions (on these, see below at para (265)).

203

(153) The Dutch NCA considered input foreclosure in Sanoma/Iddink (2019). In that

case, Sanoma, a publisher of (digital) learning materials, wanted to acquire Iddink,

a distributor of (digital) learning materials and electronic learning environments

in secondary education. The NCA was concerned that the acquisition could

foreclose competitors of Iddink’s electronic learning environments by providing

preferential treatment or better compatibility with Sanoma products on the market

for issuing educational materials. As a result, competitors would become less

effective, barriers to entry would be raised and opportunities for innovation would

be harmed. In view of the digital nature of the market and the need for further

digitization in the educational resource chain, this would have a negative impact

on price, quality and innovation. The concentration was cleared subject to

conditions in phase 2 (on these, see below at para (256)).

204

(154) In NS Groep/Pon Netherlands (2020), the Dutch NCA assessed a range of vertical

relationships in a joint venture between the Netherlands’ main train service

200

Competition & Markets Authority, Meta/Giphy (ME/6891/20-II, 6 December 2021).

201

Meta/Giphy, [2022] CAT 26, 14 June 2022.

202

Kartellgericht, 22 July 2021, 28 Kt 6/21y – Meta/Giphy; Kartellobergericht, 23 June 2022, 16 Ok 3/22k

and 16 Ok 4/22g – Meta/Giphy.

203

Bundeswettbewerbsbehörde, CTS Eventim/Barracuda Holding (BWB/Z-4651, 3 December 2019).

204

Autoriteit Consument & Markt, Sanoma/Iddink (ACM/19/035555, 28 August 2019).

Merger review in digital and technology markets: Insights from national case law

provider (NS) and a producer of means of transport (Pon). The NCA believed that,

due to the joint venture, NS would have both the ability and the incentive to

engage in a partial input foreclosure strategy regarding its train services and the

integrated provision of transport and mobility services via an app. This could lead

to (i) the foreclosure of current providers of integrated mobility services via an

app, and (ii) raise barriers to entry into the national market for the integrated

provision of transport and mobility services via an app. Based on this, the

authority believed that the joint venture could result in a significant restriction of

competition, and only cleared it subject to conditions (on these, see below at para

(257)).

205

(155) In the case of Sully System/CENEJE (2018), the Slovenian NCA assessed whether

Sully System’s acquisition of Ceneje, a company active in the market of online

advertising through search engines and online price comparison, could lead to

input foreclosure in online price comparison or online non-food retail of consumer

goods.

Sully System was active in the latter market. As the merged entity would

have a market share of more than 30% in at least one relevant market, the NCA

assessed more closely whether the merged entity could discriminate between

offers of online retailers and use non-objective search and ranking algorithms of

online retail offers which would be preferential to the merged entity. The remedies

addressed these concerns (on these, see below at para (267)).

206

(156) In several cases, NCAs concluded that vertical input foreclosure was not a credible

theory of harm based on the low market shares post-merger and/or the competitive

constraint expected from competitors that would remain active on either the

upstream or the downstream markets.

207

A dual vendor strategy employed by

buyers was seen as a countervailing factor in technology markets,

208

similar to

multi-homing in digital markets. Where switching costs were not high, this was

also seen as an important strategy to counter vertical input foreclosure.

209

(157) In ProSiebenSat.1/Verivox (2015), the German NCA assessed a merger between

a media company (ProSiebenSat.1) and a comparison platform for consumer

contracts (Verivox). It assessed whether vertical input foreclosure may arise based

on the media company’s ability and incentive to grant Verivox better advertising

space at more favourable conditions than to competing comparison platforms,

thereby restricting effective competition. Verivox was the market leader, Check24

its main competitor, and both together held 95% of the market. ProSiebenSat.1’s

ability and incentive to engage in such input foreclosure would be restricted as it

would lose out on advertising revenue from Verivox’s competitors. Also, TV

205

Autoriteit Consument & Markt, NS Groep/Pon Netherlands (ACM/20/038614, 20 May 2020).

206

Javna agencija Republike Slovenije za varstvo konkurence, Sully System/CENEJE (3061-27/2017-71,

12 April 2018).

207

Autorité de la concurrence, Rakuten/Alpha Direct Services (13-DCC-08, 16 January 2013); Competition

and Consumer Protection Commission, EQT Fund Management/SUSE (M/18/066, 18 September 2018);

Bundeskartellamt, PayPal/Honey Science (B6-86/19, 17 December 2019).

208

Bundeskartellamt, Cisco Systems/Acacia Communications (B7-205/19, 6 February 2020).

209

Competition & Markets Authority, Uber International/GPC Computer Software (ME/6903/20, 29

March 2021).

Merger review in digital and technology markets: Insights from national case law

commercials at ProSiebenSat.1 were not the only advertising channels available

to Verivox’s competitors. In addition, sellers usually used several price

comparison platforms in parallel (multi-homing). The NCA therefore concluded

that this would not result in an appreciable restriction, also not through market

tipping. The transaction was unconditionally cleared.

210

(158) In four concentrations in the online gaming and betting sectors, the Irish NCA

assessed the possibility of vertical input foreclosure. In two cases, the provision

of live betting exchange data to online betting service providers was at issue, and

the NCA asked whether, post-merger, competing fixed-odds betting service

providers could be foreclosed by restricting their access to the merged entity’s live

betting exchange data. The Irish NCA found that this was unlikely, as the data did

not constitute an essential input for these providers; there was an array of

alternative sources for this data.

211

The UK NCA reached the same conclusion

when analysing one of these concentrations.

212

(159) In two further cases, the Irish NCA considered whether the concentration could

lead to the foreclosure of competing betting and gaming providers from access to

the merged entity’s odds comparison website. It concluded that the odds

comparison website would be unlikely to refuse to display competing offers, as

displaying multiple offerings is required for these types of sites. In addition, there

were several competing odds comparison services active on the market.

213

Concerning online affiliate marketing services, the Irish NCA concluded that

input foreclosure was unlikely to arise as there were many international online

market affiliates specialising in the gambling sector, a high number of competing

online fixed-odds betting providers and online gaming providers, and low market

involvement of the merged entity.

214

(160) In Sonae/CTT (2018), Sonae and CTT - Correios de Portugal (Post Portugal)

notified the creation of a joint venture dedicated to the operation of an e-commerce

platform for the provision of intermediation services between traders and

consumers. The Portuguese NCA

215

assessed whether the joint venture might

210

Bundeskartellamt, ProSiebenSat.1/Verivox (B8-76/15, 24 July 2015).

211

Competition and Consumer Protection Commission, Paddy Power/Betfair (M/15/059, 15 January 2016);

Competition and Consumer Protection Commission, Ladbrokes/Gala Coral (M/16/007, 10 March 2016).

Similarly, see also the conclusion on horse racing and football data provision in Competition and Consumer

Protection Commission, Flutter Entertainment/Stars Group (M/20/001, 12 May 2020).

212

Competition & Markets Authority, Betfair Group/Paddy Power (ME/6572/15, 17 December 2015). The

UK NCA had also investigated the Ladbrokes/Gala Coral merger and only cleared it subject to conditions

in phase 2. The competition concerns in that case, however, related to local betting offices rather than any

digital concerns. See Competition & Markets Authority, Ladbrokes/Gala Coral (ME/6556-15-II, 26 July

2016).

213

Competition and Consumer Protection Commission, Stars Group/Sky Betting & Gaming (M/18/038, 18

June 2018); Competition and Consumer Protection Commission, Flutter Entertainment/Stars Group

(M/20/001, 12 May 2020).

214

Competition and Consumer Protection Commission, Stars Group/Sky Betting & Gaming (M/18/038, 18

June 2018); Competition and Consumer Protection Commission, Flutter Entertainment/Stars Group

(M/20/001, 12 May 2020).

215

For the Portuguese experience, see also Tânia Luísa Faria, ‘Portugal’ in Daniel Mândrescu (ed), EU

Competition Law and the Digital Economy: Protecting Free and Fair Competition in an Age of

Technological (R)Evolution (XXIX FIDE Congress 2020) 431, 433.

Merger review in digital and technology markets: Insights from national case law

engage in input foreclosure of other marketplaces. It concluded that Sonae, which

had a relatively high market share in certain retail markets (sporting goods,

consumer electronics), would not be able to terminate or deteriorate supply

conditions to customers that operated on the same market as the joint venture. It

would also not be able to stop reselling products to competing marketplaces.

Multiple competitors remained on the market that would constrain such a strategy

of input foreclosure. The joint venture was unconditionally cleared.

216

(161) In Turnitin/Ouriginal Group (2021), Turnitin, an international provider of a wide

range of software solutions for the educational sector, wanted to acquire sole

control over the Swedish Ouriginal Group, which is only active on the market for

plagiarism detection software. This transaction did not, in the eyes of the Spanish

NCA, raise vertical input foreclosure effects because of the low market shares of

the target and was unconditionally cleared.

217

In the UK, the UK NCA believed

that the same concentration would lead to horizontal unilateral effects, but applied

its de minimis exception due to the small nature of the case.

218

(162) The UK NCA assessed the possibility of vertical input foreclosure in a number of

cases. In ZPG/Websky (2017), ZPG, which owns a customer relationship

management (CRM) software for real estate agents as well as the online property

portal Zoopla, acquired Websky, which runs the CRM property software Expert

Agent. The UK NCA assessed whether the merged entity could engage in input

foreclosure of property portals in the vertical relationship between online property

portals such as Zoopla (downstream) and CRM property software (upstream). In

particular, it analysed whether the merged entity could degrade the quality of the

upload feed to property portals that are competing with Zoopla. However, the

NCA concluded that the merged entity would not have the ability to adopt a

foreclosure strategy vis-à-vis rival property portals due to the high number of

competitors operating on the market.

219

(163) In Moneysupermarket.com/Decision Technologies (2018),

Moneysupermarket.com agreed to acquire Decision Technologies. Both parties

supply digital comparison tool services for mobile and home communications

switching. Decision Technologies also operates upstream, providing white label

and application programming interface (API) services to providers of digital

comparison tools. The UK NCA found that the merged entity would have the

ability to foreclose digital comparison tool providers from the supply of white

label and API services, which were considered an important input. Decision

Technologies was the market leader and no entry was on the horizon. The NCA

then assessed a number of factors that would curtail the merged entity’s incentive

216

Autoridade da Concorrência, Sonae/CTT - Correios de Portugal JV (Ccent. 27/2018, 19 July 2018).

217

Comisión Nacional de los Mercados y la Competencia, Turnitin/Ouriginal Group (C/1220/21, 19

October 2021).

218

Competition & Markets Authority, Turnitin/Ouriginal (ME/6931/21, 26 July 2021).

219

Competition & Markets Authority, ZPG/Websky (ME/6690/17, 29 June 2017).

Merger review in digital and technology markets: Insights from national case law

to foreclose, and found that this strategy would not be profitable. The

concentration was unconditionally cleared.

220

(164) The Google/Looker (2020) concentration also involved the possibility of vertical

input foreclosure. Google, a global technology company, acquired Looker, a

provider of business intelligence (BI) tools, i.e. software that supports corporate

decision-making by analysing, visualising and interpreting business data. The UK

NCA assessed whether the merged entity could engage in a partial foreclosure

strategy based on Google’s substantial market power in web analytics and online

advertising. As Google generates a wealth of data, the authority assessed whether

Google could restrict competing BI tool providers from access to Google-

generated data. It found that Google would indeed have the ability to engage in

such an input foreclosure strategy: it is important to many businesses to be able to

analyse Google-generated data, Google has market power in web analytics and

online advertising and can offer a combined product – possibly further enhancing

its market power, and it could implement various price- and non-price-based

foreclosure mechanisms to restrict access to Google-generated data. The NCA did

not consider that Google had an incentive to engage in such a strategy, however.

Its internal documents did not reveal any plans to carry out such a strategy.

Switching by customers may to some extent hamper the profitability of such a

strategy. Targeting individual competing BI tools with such a strategy would also

be costly. The concentration was unconditionally cleared.

221

(165) In Meta/Kustomer (2021), the UK NCA also assessed vertical input foreclosure.

In particular, it analysed whether Meta could foreclose other providers of

customer relationship management (CRM) software by restricting or degrading

their access to Meta’s messaging channels. This is because CRM providers require

Meta APIs to integrate them into their software. While Meta would have the

ability to engage in such foreclosure, the authority did not find evidence that it

had a sufficient incentive for this strategy. B2C

222

messaging was growing, and

such a foreclosure strategy would cut Meta off from revenue-generating CRM

providers, as not all customers would switch to relatively small Kustomer. The

CMA found it unlikely that such a foreclosure strategy would result in gains

exceeding the losses. The CMA also considered that a foreclosure strategy which

would target close competitors of Kustomer would not have been possible. The

transaction was unconditionally cleared.

223

c. Discussion

(166) Vertical input foreclosure is a frequently encountered theory of harm in digital

and technology mergers on a national level. While regularly dismissed based on

remaining competitive constraints or a lack of market power on any relevant

220

Competition & Markets Authority, Moneysupermarket.com/Decision Technologies (ME/6749/18, 7

August 2018).

221

Competition & Markets Authority, Google/Looker (ME/6839/19, 13 February 2020).

222

Business-to-consumer.

223

For the European Commission’s contrary findings on this issue, which led to a conditional clearance of

the same merger, see European Commission Decision of 27 January 2022, M.10262 – Meta/Kustomer.

Merger review in digital and technology markets: Insights from national case law

market, this theory of harm has led to remedies in a number of national mergers,

although usually not on a stand-alone basis.

224

(167) Particularly in Ireland, but also in the UK, the growing importance of online

betting and gaming has also come within the purview of the NCAs, and digital

aspects are increasingly considered an important factor to consider in mergers in

that sector. At the same time, it was seen that this sector currently appears to be

competitive enough to allow for further concentration. This shows how sectors

that were previously regarded as non-digital can (partially) morph into digital

sectors, at which point know-how regarding how to analyse digital cases becomes

essential.

(168) Against the background of the national cases analysed for this Report, it seems

that it could be useful if the particularities of vertical input foreclosure in digital

and technology markets were spelled out more clearly in soft law guidance,

especially as regards the ability of the other market side to switch or multi-home

and the questions of vertical integration and of credible competition. The incentive

to engage in input foreclosure also needs to be seen in the context of a digital

ecosystem, which can lead to multiple incentives in various markets coming

together.

225

(169) In the vast majority of cases analysed, not all three cumulative criteria for finding

a credible strategy of input foreclosure were fulfilled, leading to a dismissal of

this type of theory of harm. This was also seen in a number of Commission

decisions in which vertical input foreclosure was dismissed.

226

(170) In the European Meta/Kustomer (2022) case, the European Commission carried

out a similar analysis to that of the UK NCA but was concerned that Meta could

engage in input foreclosure of Kustomer’s competitors by denying or degrading

access to APIs for Meta’s various messenger functionalities. It only cleared the

acquisition subject to two commitments: Meta guaranteed non-discriminatory

access to its publicly available APIs for its messaging channels to competing

customer service CRM software providers and new entrants – i.e., companies

competing with Kustomer –, and would also make available to them

improvements in Meta’s messenger functionalities that Kustomer’s customers use

today.

227

In Germany and the UK, this acquisition was unconditionally cleared.

228

The Commission had issued its conditional clearance while the German NCA’s

224

But see, on the European level, European Commission Decision of 27 January 2022, M.10262 –

Meta/Kustomer.

225

On this, see European Commission Decision of 27 January 2022, M.10262 – Meta/Kustomer.

226

Eg, European Commission Decision of 17 December 2020, M.9660 – Google/Fitbit, paras 570-610,

611-648, 649-679, 680-709; European Commission Decision of 6 December 2016, M.8124 –

Microsoft/LinkedIn, paras 246-277, 370-381. It is also noteworthy how in Microsoft/LinkedIn, vertical and

conglomerate foreclosure effects were assessed in close proximity, highlighting how these two cannot be

easily separated in digital market environments.

227

European Commission, ‘Mergers: Commission clears acquisition of Kustomer by Meta (formerly

Facebook), subject to conditions’ IP/22/652 (27 January 2022); European Commission Decision of 27

January 2022, M.10262 – Meta/Kustomer.

228

Competition & Markets Authority, Meta/Kustomer (ME/6920/20, 27 September 2021);

Bundeskartellamt, Meta/Kustomer (B6-21/22, 11 February 2022).

Merger review in digital and technology markets: Insights from national case law

review was still ongoing, and the German NCA took the Commission’s findings

– and the commitments accepted by the Commission – into account when

unconditionally clearing the transaction.

229

ii. Non-coordinated effects: Customer foreclosure

a. Specificities of the theory of harm

(171) A second type of foreclosure a vertical merger may give rise to is customer

foreclosure, whereby the merged entity forecloses access to customers for its

upstream competitors, thereby cutting off or hindering their access to the

market.

230

It can do so by sourcing all its requirements from its own upstream

operation, by reducing its purchases from an upstream competitor or by buying

from upstream competitors on less favourable terms.

231

This increases rivals’

costs, possibly leading to higher prices for consumers or reduced innovation.

(172) To assess whether this type of competitive harm would arise, an authority will

assess the (a) ability and (b) incentive of the merged entity to engage in such

behaviour, as well as (c) the effects of such behaviour on competition

downstream.

232

Concerning the ability to engage in customer foreclosure, an

authority may particularly want to consider the size of the customer and the

importance of scale upstream.

233

(173) Such foreclosure would also deter entry on the upstream market and put

competitors on the downstream market at a competitive disadvantage.

234

(174) Competition concerns related to customer foreclosure would only arise where the

merged entity is an important customer with a significant degree of market power

in the downstream market.

235

b. NCAs applying the theory of harm in digital and technology mergers

(175) A total of 11 of the 69 cases analysed in-depth contained an assessment of

customer foreclosure. Only in one case – namely CTS Eventim/Four Artists

236

–

was this the only vertical theory of harm assessed (in addition to a horizontal

theory of harm). In 6 cases, no horizontal theories of harm were assessed in

addition to vertical (or vertical and conglomerate) theories of harm.

(176) Of the cases that assessed vertical customer foreclosure, 2 led to a prohibition and

3 to conditional clearance (2 in phase 1, 1 in phase 2). The remaining

concentrations were unconditionally cleared.

229

Bundeskartellamt, ‘Bundeskartellamt clears acquisition of Kustomer by Meta (formerly Facebook)’

Press Release (11 February 2022)

<https://www.bundeskartellamt.de/SharedDocs/Meldung/EN/Pressemitteilungen/2022/11_02_2022_Meta

_Kustomer.html>.

230

European Commission, Non-horizontal Merger Guidelines 2008, para 58; Competition & Markets

Authority, Merger Assessment Guidelines 2021, para 7.23.

231

European Commission, Non-horizontal Merger Guidelines 2008, para 60.

232

European Commission, Non-horizontal Merger Guidelines 2008, para 59.

233

Competition & Markets Authority, Merger Assessment Guidelines 2021, para 7.26.

234

European Commission, Non-horizontal Merger Guidelines 2008, paras 64, 72.

235

European Commission, Non-horizontal Merger Guidelines 2008, para 58.

236

Bundeskartellamt, CTS Eventim/Four Artists (B6-35/17, 23 November 2017).

Merger review in digital and technology markets: Insights from national case law

(177) In Tobii/Smartbox (2019), a case involving augmentative assistive

communication (AAC) solutions, the UK NCA found that the merged entity

would likely have both the ability and incentive to limit the compatibility of eye

gaze cameras produced by the acquirer’s competitors with the target’s popular

software. This strategy would be profitable as AAC solution providers were not

very likely to switch to an alternative software in order to use an alternative eye

gaze camera. This foreclosure strategy would lead to lower innovation in eye gaze

cameras and higher prices. The acquisition was prohibited (see also paras (281)

f).

237

(178) In CTS Eventim/Four Artists (2017),

238

the German NCA prohibited an

acquisition based on the finding that it would (also) have further strengthened

customer foreclosure: While an acquisition by CTS Eventim, a company active in

live entertainment, earlier that same year had been unconditionally cleared in

phase 2,

239

the NCA believed that this further acquisition would contribute to CTS

Eventim’s strategy of customer foreclosure to the detriment of competition. CTS

Eventim’s competitors already had restricted access to customers, both because

of CTS Eventim’s vertical integration and because of CTS Eventim’s exclusivity

clauses with event organisers. On the prohibition, see also para (279).

(179) In a further case involving CTS Eventim, CTS Eventim/Barracuda Holding

(2019), the Austrian NCA was concerned that, post-merger, the merged entity

could engage in customer foreclosure by providing its ticketing services at above

market prices to companies that do not belong to the CTS Eventim group.

240

This

concentration was cleared subject to conditions (on these, see below at para

(265)).

(180) In NS Groep/Pon Netherlands (2020), the Dutch NCA concluded that it was not

plausible that NS would have the ability and incentive to implement a customer

foreclosure strategy vis-à-vis providers of bicycle-sharing and providers of car-

sharing. The joint venture was cleared subject to conditions based on concerns

related to vertical input foreclosure (on the remedies, see below at para (257)).

241

(181) The French NCA considered possible customer foreclosure in Rakuten/Alpha

Direct Services (2013). In that case, Rakuten, which is active in e-commerce

through its electronic marketplace PriceMinister and several price comparison

websites, wanted to acquire exclusive control over Alpha Direct Services, a

company specialising in inbound logistics services for e-commerce and catalogue-

based distance selling. The NCA concluded that customer foreclosure was

unlikely to arise based on the many different sellers that the target provided its

services to, the number of important competitors in e-marketplaces, and the lack

237

Competition & Markets Authority, Tobii/Smartbox (ME/6780/18-II, 15 August 2019).

238

Bundeskartellamt, CTS Eventim/Four Artists (B6-35/17, 23 November 2017).

239

Bundeskartellamt, CTS Eventim/FKP Scorpio (B6-53/16, 3 January 2017).

240

Bundeswettbewerbsbehörde, CTS Eventim/Barracuda Holding (BWB/Z-4651, 3 December 2019).

241

Autoriteit Consument & Markt, NS Groep/Pon Netherlands (ACM/20/038614, 20 May 2020).

Merger review in digital and technology markets: Insights from national case law

of exclusivity contracts by the acquirer’s marketplace. The transaction was

unconditionally cleared.

242

(182) Two Irish cases considered both vertical input and vertical customer foreclosure.

In Stars Group/Sky Betting & Gaming (2018), the Irish NCA considered whether

the merged entity could foreclose competing odds comparison services from

accessing customers, or whether it could foreclose competing online affiliate

marketing services from accessing customers. It concluded that based on the

multiple players active on the market, neither would materialise. The transaction

was unconditionally cleared.

243

(183) The case of Sonae/CTT (2018) also related to possible customer foreclosure by

the joint venture creating an e-commerce platform. There, the Portuguese NCA

found it unlikely that the owners of the joint venture would adopt a strategy of

customer foreclosure by preventing one of the parties’ competitors from providing

services to the joint venture or reselling its products on the new marketplace. This

would prevent the success of a marketplace, which requires two market sides to

come on board.

244

(184) Under a possible theory of harm related to vertical customer foreclosure, the UK

NCA assessed in Meta/Kustomer (2021) whether Meta could foreclose other B2C

messaging services by preventing them from integrating their services with

Kustomer. As Kustomer was a small provider specialised in serving small and

medium-sized businesses, and many alternative providers would remain on the

market, this was not seen as a credible theory of harm, either. The transaction was

unconditionally cleared.

245

(185) The presence of a sufficient number of competitors on one of the relevant markets

was regularly seen as mitigating any vertical effects.

246

Low turnover was also

sometimes seen as hindering a company’s ability to foreclose competitors.

247

c. Discussion

(186) Vertical customer foreclosure is a theory of harm that was not seen as a credible

threat to competition in many national cases. The analysis related to customer

foreclosure is often very price-centric. For digital and technology mergers, further

parameters of competition – such as privacy, quality, choice and innovation –

would need to be focused on more carefully in order to ensure that the multi-

dimensional nature of competition is depicted in the merger analysis.

(187) It is interesting to note how in Sonae/CTT, the two-sided nature of a market was

regarded as an intrinsic countervailing factor that would render a strategy based

242

Autorité de la concurrence, Rakuten/Alpha Direct Services (13-DCC-08, 16 January 2013).

243

Competition and Consumer Protection Commission, Stars Group/Sky Betting & Gaming (M/18/038, 18

June 2018).

244

Autoridade da Concorrência, Sonae/CTT - Correios de Portugal JV (Ccent. 27/2018, 19 July 2018).

245

Competition & Markets Authority, Meta/Kustomer (ME/6920/20, 27 September 2021). Note that in the

European Union, this concentration was only conditionally cleared by the European Commission Decision

of 27 January 2022, M.10262 – Meta/Kustomer.

246

Eg, see Bundeskartellamt, PayPal/Honey Science (B6-86/19, 17 December 2019).

247

Eg, see Competition and Consumer Protection Commission, EQT Fund Management/SUSE (M/18/066,

18 September 2018).

Merger review in digital and technology markets: Insights from national case law

on customer foreclosure futile. Vertical integration and exclusivity contracts

already concluded on a relevant market, on the other hand, were seen as factors

contributing to a successful customer foreclosure strategy.

(188) In the Austrian and German cases involving CTS Eventim, it was seen how very

similar concerns arose in those cases based on the market power CTS Eventim

held in ticketing services, although these concerns were resolved specifically with

a view to the national markets concerned.

iii. Other non-coordinated effects

a. Specificities of the theory of harm

(189) In terms of other non-coordinated effects arising from unilateral behaviour of the

merged entity, a vertical merger can lead the merged entity to obtain access to

commercially sensitive information that may allow it to compete less aggressively

or to put competitors at a competitive disadvantage.

248

b. NCAs applying the theory of harm in digital and technology mergers

(190) Only 4 of the 69 cases analysed in-depth discussed other vertical unilateral effects,

but 3 of these cases led to commitments.

(191) In Rockaway Capital/Heureka (2016), private equity company Rockaway Capital

intended to acquire control of Heureka.cz, a Czech comparison shopping website,

and other online businesses. The Czech NCA was concerned that post-merger

comparison shopping site Heureka.cz could ask Rockaway’s online shops to

collect excessive amounts of data about their users, data that could then be used

in the interest of Rockaway Capital’s businesses.

249

This concern was explicitly

addressed in the commitments offered by Rockaway (on these, see para (266)

below).

(192) In Sanoma/Iddink (2019), the Dutch NCA considered it plausible that the merged

entity would have access to commercially sensitive information from competitors

after the proposed concentration, giving it an advantage over its competitors and

possibly impeding competition in the market for the issuance of teaching materials

in secondary education. The acquisition was cleared subject to conditions (on

these, see para (256) below).

250

(193) In the Slovenian case of Sully System/CENEJE (2018), the NCA also raised the

concern that the acquisition could provide the acquirer with access to

commercially sensitive information regarding competitors’ activities in the

downstream market, and cleared it subject to conditions (on these, see para (267)

below).

251

248

European Commission, Non-horizontal Merger Guidelines 2008, para 78; Competition & Markets

Authority, Merger Assessment Guidelines 2021, para 7.3.

249

Úřad pro ochranu hospodářské soutěže, Rockaway Capital/Heureka (ÚOHS-S0013/2016/KS-

21123/2016/840/DVá, 16 May 2016).

250

Autoriteit Consument & Markt, Sanoma/Iddink (ACM/19/035555, 28 August 2019).

251

Javna agencija Republike Slovenije za varstvo konkurence, Sully System/CENEJE (3061-27/2017-71,

12 April 2018).

Merger review in digital and technology markets: Insights from national case law

(194) In Uber International/GPC Computer Software (2021), the UK NCA assessed

whether the acquisition would give Uber access to commercially sensitive

information about competitors that would allow it to compete more aggressively.

However, the NCA considered that more intense competition would, in fact, be

beneficial and in any case, competing taxi companies could switch to other

booking and dispatch technology providers in case the merged entity engaged in

such conduct. The transaction was unconditionally cleared.

252

(195) A further case that involved other vertical unilateral effects was the UK

esure/Gocompare.com case (2015),

253

where the UK NCA raised the issue that

the acquirer might gain access to commercially sensitive information through the

target’s price comparison website, allowing it to either increase its margins or gain

a competitive advantage, eg by enabling it to back-estimate competitors’ pricing

algorithms or increase prices.

254

In this particular case, the authority concluded

that this was not likely to occur and the transaction was unconditionally cleared.

255

c. Discussion

(196) Access to commercially sensitive information, and to user data in particular, has

only been identified as a competition concern in a limited number of cases – but

has led to dedicated remedies. In digital markets that centre around user data, it

would not be surprising to see this type of theory of harm resurface more

frequently. This is further discussed below (see paras (237) ff).

(197) In Apple/Shazam (2018), the European Commission found that the acquisition

would give Apple access to commercially sensitive information about competitors

of its Apple Music service, and in particular music streaming service Spotify.

However, it regarded it as ‘unclear whether the merged entity would be able to

put competing providers of digital music streaming apps at a competitive

disadvantage’ and underlined that the processing of personal data remained

subject to the General Data Protection Regulation.

256

It was also not certain that

Apple would have the incentive to use such data to disadvantage competitors.

257

(198) It is notable that such a reference to data protection rules is absent in the national

merger cases analysed in-depth.

258

252

Competition & Markets Authority, Uber International/GPC Computer Software (ME/6903/20, 29

March 2021).

253

This case was not selected for in-depth analysis.

254

Competition & Markets Authority, esure Group/Gocompare.com (ME/6495-14, 23 February 2015).

255

Competition & Markets Authority, esure Group/Gocompare.com (ME/6495-14, 23 February 2015),

para 82.

256

Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the

protection of natural persons with regard to the processing of personal data and on the free movement of

such data, and repealing Directive 95/46/EC (General Data Protection Regulation, GDPR) [2016] OJ

L119/1.

257

European Commission Decision of 6 September 2018, M.8788 – Apple/Shazam, paras 196 ff (direct

quote at para 221).

258

But see, in a case on a possible abuse of a dominant position based on an infringement of data protection

rules when collecting users’ data, Bundeskartellamt, Facebook (B6-22/16, 6 February 2019); questions on

this case have now been referred to the Court of Justice by the Oberlandesgericht Düsseldorf; Case C-

252/21, Meta Platforms/Bundeskartellamt [2021] OJ C320/16 (pending).

Merger review in digital and technology markets: Insights from national case law

iv. Coordinated effects

a. Specificities of the theory of harm

(199) Just like a horizontal merger, a vertical merger may also alter the market structure

so as to allow companies to reach a common understanding aimed at increasing

prices, limiting production or dividing the market.

259

In order to find whether such

coordination is sustainable, an authority will assess the same three factors as set

out for horizontal coordinated effects: the ability to monitor competitors’

behaviour on the market (i.e., a certain transparency), the possibility of a credible

deterrent mechanism, and no possibility for third parties (customers or

competitors) to jeopardise the coordinated behaviour.

260

b. NCAs applying the theory of harm in digital and technology mergers

(200) Not one out of the 69 cases analysed in-depth discussed such a theory of harm.

(201) Recently, the agreement between Google and Apple to ensure that Google Search

remains the default search engine on Apple devices running on the iOS operating

system has been cast in the antitrust spotlight.

261

The prospect of such an

agreement between the merged entity and other technology companies could be

considered as a possible coordinated effect in a conglomerate or also vertical

merger.

3. Conglomerate theories of harm

(202) Conglomerate effects may arise in concentrations that involve companies that are

not connected either horizontally or vertically. Competition concerns are

especially thought to arise where the companies involved operate in closely

related markets, eg where products are complementary.

262

(203) A number of theories of harm related to conglomerate mergers can be

distinguished that are briefly set out below, followed by an analysis of how these

particular theories of harm were applied in the digital and technology merger cases

that were identified on a national level. Where appropriate, parallels to European

Commission cases are drawn in the discussion that follows.

i. Non-coordinated effects: Foreclosure

a. Specificities of the theory of harm

(204) Competition concerns can arise in a conglomerate merger when a merged entity

utilises its market power on one market as leverage to gain market power in

another market, eg by linking the sale of its products.

263

Possibilities include

259

European Commission, Non-horizontal Merger Guidelines 2008, paras 79 ff.

260

European Commission, Non-horizontal Merger Guidelines 2008, paras 79 ff.

261

See Daisuke Wakabayashi and Jack Nicas, ‘Apple, Google and a Deal That Controls the Internet’ New

York Times (25 October 2020). This deal is being challenged in US v Google, US District Court for the

District of Columbia, Case 1:20-cv-03010 (complaint brought on 20 October 2020, amended on 15 January

2021).

262

European Commission, Non-horizontal Merger Guidelines 2008, para 5.

263

See Competition & Markets Authority, Merger Assessment Guidelines 2021, para 7.8(c).

Merger review in digital and technology markets: Insights from national case law

(technical or contractual) tying and (mixed or pure) bundling, including certain

rebate schemes.

(205) To assess whether this type of competitive harm would arise, an authority will

assess the (a) ability and (b) incentive of the merged entity to engage in such

behaviour, as well as (c) the effects of such behaviour on competition

downstream.

264

(206) Concerning the ability to foreclose through linking products, the characteristics of

a product and how it is purchased are relevant.

265

The Commission has

emphasised that foreclosure concerns only arise where the merged entity has

considerable market power – but not necessarily beyond the threshold of

dominance – in one of the affected markets.

266

Economies of scale and network

effects can make conglomerate foreclosure effects more pronounced.

267

Further

factors to consider include the feasibility of a combined offering and the loss of

sales by rivals.

268

A conglomerate’s foreclosure practices may negatively affect

potential entry.

269

Overall, the Commission believes that such foreclosure will

only be anti-competitive if it affects a ‘sufficiently large fraction of market

output’.

270

(207) The UK’s Competition & Markets Authority has emphasised that foreclosure

strategies related to conglomerate mergers may be particularly concerning in

digital markets.

271

For instance, a foreclosure strategy may raise competition

concerns where a product is integrated within a digital ecosystem, thereby

effectively reinforcing the platform’s digital ecosystem.

272

While competition law

does not primarily focus on the welfare of competitors, this type of ecosystem

integration can effectively ensure that (potential) competitors cannot expand and

the merged entity’s market power is strengthened.

273

A particular difficulty lies in

the fact that ‘these anticompetitive effects may not emerge in full until after the

market has reached maturity’, leading to considerable uncertainty in the

analysis.

274

b. NCAs applying the theory of harm in digital and technology mergers

(208) A total of 15 of the 69 cases analysed in-depth assessed conglomerate theories of

harm related to possible foreclosure effects. 7 of these also concerned horizontal

effects, 3 of these also concerned horizontal and vertical effects, and a further 3

264

European Commission, Non-horizontal Merger Guidelines 2008, para 94; Competition & Markets

Authority, Merger Assessment Guidelines 2021, para 7.32.

265

European Commission, Non-horizontal Merger Guidelines 2008, para 98.

266

European Commission, Non-horizontal Merger Guidelines 2008, para 99.

267

European Commission, Non-horizontal Merger Guidelines 2008, para 101.

268

Competition & Markets Authority, Merger Assessment Guidelines 2021, para 7.33.

269

European Commission, Non-horizontal Merger Guidelines 2008, para 112.

270

European Commission, Non-horizontal Merger Guidelines 2008, para 113; see also Competition &

Markets Authority, Merger Assessment Guidelines 2021, paras 7.35 ff.

271

Competition & Markets Authority, Merger Assessment Guidelines 2021, para 7.37.

272

Competition & Markets Authority, Merger Assessment Guidelines 2021, para 7.30.

273

Competition & Markets Authority, Merger Assessment Guidelines 2021, para 7.31.

274

Competition & Markets Authority, Merger Assessment Guidelines 2021, para 7.37.

Merger review in digital and technology markets: Insights from national case law

also concerned vertical but no horizontal effects. 2 cases exclusively related to

conglomerate effects, namely the UK case of Advanced Micro Devices/Xilinx

(2021)

275

and the Greek case of Delivery Hero (2022).

276

Only 3 concentrations

were cleared subject to conditions, one in phase 1 and two in phase 2. The

remaining 12 concentrations were unconditionally cleared, 10 in phase 1 and 2 in

phase 2.

(209) In Rockaway Capital/Heureka (2016), the Czech NCA was concerned that, post-

merger, comparison shopping site Heureka.cz would give preferential treatment

to online businesses already controlled by the acquirer, Rockaway Capital,

thereby foreclosing competitors. Heureka.cz had a market share between 45-55%.

The concentration was cleared subject to conditions that addressed this concern

(see below, para (266)).

277

(210) In Delivery Hero (2022), Delivery Hero operated e-food, the leading online food

delivery platform in Greece. It wanted to acquire a range of companies, namely

Alfa Distributions, which is active in the wholesale supply of consumer goods to

supermarkets; Inkat, which is active in the wholesale supply of groceries and

operates a retail grocery store chain; Delivery.gr, which provides online

intermediation services for restaurants, supermarkets, convenience stores and

other local stores; and E-table, which provides online intermediation services for

reservations in restaurants. The NCA only assessed conglomerate theories of harm

and found that by combining the acquirer’s online food ordering platform (e-food)

with the targets’ online intermediation services, conglomerate effects would arise.

Both E-table and Delivery Hero had significant market power in their respective

Greek markets. Post-merger, conglomerate foreclosure effects through bundling

were likely to arise, as the merged entity would have the ability and incentive to

bundle their services for business users. A further concern voiced by the authority

related to the combination of data sets from both services that would allow for

targeted advertisements with which no competitors could effectively compete.

The concentration was cleared subject to conditions (see below, para (264)).

278

(211) Concerning a possible foreclosure strategy through bundling between the

acquirer’s digital learning materials and the target’s distribution of such learning

materials and the provision of electronic learning environments, the Dutch NCA

in Sanoma/Iddink (2019) found that the parties could not profitably implement

such a strategy based on the limited income resulting from it. The case was cleared

subject to conditions based on other theories of harm (see para (256)).

279

In the

later case of DPG/Sanoma (2020), DPG intended to acquire Sanoma. DPG was

active in the field of news media, including the publishing of newspapers and

275

Competition & Markets Authority, Advanced Micro Devices/Xilinx (ME/6915/20, 29 June 2021).

276

Επιτροπή Ανταγωνισμού, Delivery Hero/Alfa Distributions/Inkat/Delivery.gr/E-table (775/2022, 18

April 2022).

277

Úřad pro ochranu hospodářské soutěže, Rockaway Capital/Heureka (ÚOHS-S0013/2016/KS-

21123/2016/840/DVá, 16 May 2016).

278

Επιτροπή Ανταγωνισμού, Delivery Hero/Alfa Distributions/Inkat/Delivery.gr/E-table (775/2022, 18

April 2022).

279

Autoriteit Consument & Markt, Sanoma/Iddink (ACM/19/035555, 28 August 2019).

Merger review in digital and technology markets: Insights from national case law

door-to-door papers, radio and online services, including in the field of online job

advertisements, price comparison and car and technology websites and also on the

Dutch radio market. The target was active in the field of publishing a large number

of magazines, offering online news and online services, including comparison

websites. The Dutch NCA found that while acquirer DPG, a media company,

might be able to bundle its activities on various markets with its online advertising

services, DPG would not have market power in any advertising market that it

could transfer to adjacent advertising markets. Post-merger, DPG would also have

the ability to use its position in unpaid general online news to refer visitors to its

own e-commerce activities, but again this would be unlikely to foreclose

competitors. Sufficient alternative channels would remain available for recruiting

visitors for providers of job and car advertisements. In the area of price

comparison services, it was unlikely that a possible strategy in which hyperlinks

are placed from unpaid general online news to price comparison services would

lead to foreclosure. The transaction was unconditionally cleared.

280

(212) In Crédit Mutuel Arkéa, Primonial Management, Blackfin, Latour

Capital/Primonial Holding (2015), Crédit Mutuel Arkéa, Primonial Management,

Blackfin and Latour Capital wanted to acquire joint control of Primonial Holding.

Amongst many others, this transaction concerned the market for price comparison

websites regarding insurance and loans in which the Blackfin fund is involved,

and the authority analysed possible conglomerate effects relating to this market.

The French NCA did not believe any conglomerate foreclosure effects would arise

related to the comparison website for loans and insurance operated by one of the

parties due to that website’s low market shares (0-5% for comparing loans; 10-

20% for comparing insurance) and the negligible market shares of the parties in

banking and insurance (0-5%).

281

(213) In Blackbaud/Giving (2017), the UK NCA considered whether the acquisition by

an online fundraising platform (OFP) of another could raise conglomerate

foreclosure effects, as the acquirer also provided payment services and customer

relationship management (CRM) software. As CRM software and OFPs were not

complements, and customers did not usually buy these two products from a single

source, nor at the same time, it would be difficult for the merged entity to engage

in a foreclosure strategy. Concerning a possible bundling of the merged entity’s

CRM and OFP offerings, the NCA found that Blackbaud had already

unsuccessfully tried such a strategy. In addition, a discounted bundle could be pro-

competitive as long as CRM competitors were not forced out of the market.

Finally, the NCA also considered the possibility that the merged entity could

foreclose CRM or OFP competitors by reducing the quality of data integration

either between competing OFPs and Blackbaud’s CRM software or between

competing CRM software and the merged entity’s OFPs. Here, the NCA

280

Autoriteit Consument & Markt, DPG/Sanoma (ACM/19/038207, 10 April 2020).

281

Autorité de la concurrence, Crédit Mutuel Arkéa, Primonial Management, Blackfin, Latour

Capital/Primonial Holding (15-DCC-105, 12 August 2015).

Merger review in digital and technology markets: Insights from national case law

underlined that improving data integration between Blackbaud’s CRM and its

future OFPs would be pro-competitive. However, customers did not choose CRM

software based on how well it integrated with only one tool, leading the NCA to

conclude that the merged entity would not have the ability to engage in such a

foreclosure strategy. Ultimately, the acquisition was unconditionally cleared.

282

(214) In Axel Springer/Concept Multimédia (2018), a transaction that affected the

market for online real estate classified ads, the market for classified ads in print

media and the national market for online advertising markets, the French NCA

assessed whether there was a risk of conglomerate effects due to the target’s

presence on the market for real estate classified ads in print media as well as

online. The NCA considered that while the target’s Logic-Immo had a

considerable share of the market for real estate classified ads in print media, that

market was in decline and it therefore did not possess the type of market power to

allow it to leverage it on a connected market. There was therefore no risk of

foreclosure on the market for online real estate classified ads. The NCA also

assessed whether foreclosure was likely on the market for real estate classified ads

in print media, as Logic-Immo already offered an online/offline bundle and Axel

Springer’s internal documents showed that such an offer was also considered by

it. The NCA concluded that the merged entity would have the ability to propose

such bundles or bundled rebates. Based on three different scenarios (a discount on

print ads; a discount on online ads; tying or a price increase), however, it

concluded that the incentive to implement such discounts for bundles or to enforce

ties would be limited due to the negative effects on the merged entity. It also

concluded that, in any case, the effect of such a bundle on competition on the

market would be feeble.

283

(215) In TF1/Aufeminin (2018), the French NCA assessed possible conglomerate effects

between TF1’s market presence in selling television advertising space and

markets on which the target was present, notably the sale of online advertising

space and marketing and commercial communication services. While TF1

certainly had the ability to adopt a bundling strategy in the sale of online and

television advertising space, bundling TV advertising with online or radio

advertising was a common strategy in this sector that TF1’s competitors also

engaged in. TF1’s incentive to carry out this strategy was assessed through several

factors. The NCA emphasised that TF1 could benefit from the complementarity

of its bundle, the merging of data sets and cost synergies, and concluded that the

implementation of such bundles appeared to be one of the objectives of the

acquisition. TF1 would use its position on the market for television advertising

space as leverage to strengthen its position on the market for online advertising

space. On the latter market, however, the new entity would have a market share

below 10%. Based on the strong position of TF1’s competitors and low barriers

to entry, and especially considering the competitive pressure emanating from Big

282

Competition & Markets Authority, Blackbaud/Giving (ME/6700/17, 8 September 2017).

283

Autorité de la concurrence, Axel Springer/Concept Multimédia (18-DCC-18, 1 February 2018).

Merger review in digital and technology markets: Insights from national case law

Tech (with Google’s market share in online advertising at 50-60%, Facebook at

10-20% and the new entity at only 0-5%), the NCA concluded that conglomerate

effects could be discarded.

284

(216) The UK NCA assessed two conglomerate theories of harm in

Salesforce.com/Tableau Software (2019). In that case, Salesforce had acquired

Tableau Software. Both parties supply business intelligence (BI) software, and in

particular modern BI software making use of artificial intelligence and business

analytics. Salesforce also offers a customer relationship management (CRM)

platform that integrates with third-party products. First of all, the UK NCA

assessed whether the merged entity could foreclose competing BI software

providers through technical restrictions or bundling/tying of CRM products with

BI products. While the merged entity could have the ability to pursue such a

foreclosure strategy, there was no incentive to do so. Second, the NCA considered

whether the merged entity could foreclose competing CRM software providers

through technical restrictions or bundling/tying of BI products with CRM

products. The NCA emphasised that a BI tool was more valuable when it

connected to multiple data sources, and in any case the costs would outweigh the

benefits for the merged entity. The merger was unconditionally cleared.

285

(217) Advanced Micro Devices/Xilinx (2021) was the second case that exclusively

focused on conglomerate effects. Given that the merged entity would have a

strong market position in field programmable gate arrays (FPGAs) for datacentre

applications, the UK NCA assessed whether the merged entity could bundle or tie

the sale of FPGAs with the sale of its central processing units (CPUs) for

datacentre services. It found, however, that the merged entity would not have the

ability or incentive to foreclose datacentre CPU suppliers, as datacentre CPUs are

mostly not bought together with datacentre FPGAs. Given the merged entity’s

strong market position in FPGAs for embedded applications, the NCA also

assessed whether the merged entity could foreclose competitors supplying CPUs

for embedded applications through linking sales. Again, it concluded that

embedded CPUs and FPGAs were not usually used together, meaning no anti-

competitive outcome was to be expected. The acquisition was unconditionally

cleared.

286

(218) Meta/Kustomer (2021) also concerned conglomerate foreclosure effects. In

particular, the UK NCA considered whether Meta (formerly Facebook) could

cross-subsidise a free(mium) version of Kustomer’s customer relationship

management (CRM) with profits from online display advertising, thereby

foreclosing competing CRM providers. The UK NCA considered that such a

strategy would fit within Meta’s overall business strategy of monetising ‘free’

services, and that Meta would have both the ability and inventive to do so.

However, the NCA concluded that this would not have a negative impact on

284

Autorité de la concurrence, TF1/Aufeminin (18-DCC-63, 23 April 2018).

285

Competition & Markets Authority, Salesforce.com/Tableau Software (ME/6841/19, 22 November

2019).

286

Competition & Markets Authority, Advanced Micro Devices/Xilinx (ME/6915/20, 29 June 2021).

Merger review in digital and technology markets: Insights from national case law

competition. While some competitors may be hard-hit by such a strategy, CRM

providers competed on more than just price and there would remain sufficient

competition on that market even if such a strategy were to be adopted. The

transaction was unconditionally cleared.

287

(219) Finally, in Auction Technology Group/Live Auctioneers (2021), Auction

Technology Group (ATG) agreed to acquire Live Auctioneers. Both operate

online auction marketplaces for arts and antiques, a market which the authority

noted was national in scope because of the complexity of international

transactions in these goods. The UK NCA assessed conglomerate effects that may

arise if the merged entity could leverage the target’s strong market position in

online auction marketplaces for arts and antiques in the US in order to increase

the number of auction houses that used the acquirer’s services in the UK, eg by

engaging in a bundling strategy regarding the target’s US bidder base. Based on

shares of supply, however, the NCA concluded that the target did not have market

power in the US, while the acquirer was already an important market player in the

UK and would gain little from such a strategy. Therefore, the merged entity would

only have a limited ability to engage in such a leveraging strategy. The transaction

was unconditionally cleared.

288

c. Discussion

(220) In digital markets, conglomerate foreclosure can involve measures to reduce

interoperability with competing products, using commercially sensitive

information or data sets from one market as leverage in another, and many other

types of strategies. For each type of strategy, it carefully needs to be assessed what

impact this could have not only on the relevant markets at issue, but also on other

relevant markets in which a digital platform is active. This is what makes

conglomerate effects particularly challenging in digital market environments – but

it is also a type of analysis that NCAs should not shy away from.

289

(221) The possibility that the merged entity would give preferential treatment to one of

its services found within the same conglomerate, to the detriment of competitors,

was already seen as a concern in the Czech Rockaway Capital/Heureka case, and

is a concern that also surfaced in the European Google Shopping case,

290

where

the abuse of dominance at issue related to such behaviour. In the Czech merger

case, the remedies aimed to prevent such behaviour.

(222) An issue that perhaps has not yet been sufficiently discussed in national merger

assessments is the fact that data capabilities – relating to both personal data and

non-personal data – are central to success in many digital markets and can

287

Competition & Markets Authority, Meta/Kustomer (ME/6920/20, 27 September 2021).

288

Competition & Markets Authority, Auction Technology Group/Live Auctioneers (ME/6942/21, 29

September 2021).

289

As aptly put by Witt (n 13), asking who was afraid of conglomerate mergers.

290

European Commission Decision of 27 June 2017, AT.39740 – Google Search (Shopping); upheld on

appeal in Case T-612/17, Google and Alphabet/Commission (Google Shopping), ECLI :EU:T:2021:763,

currently on appeal as Case C-48/22 P, Google and Alphabet/Commission (Google Shopping) [2022] OJ

C191/10 (pending).

Merger review in digital and technology markets: Insights from national case law

therefore also represent a significant competitive advantage to digital platforms in

distant markets. Here, the decisional practice is still developing. The recent Greek

case involving a food delivery platform points towards possibilities in this regard.

Going forward, national cases will need to take into account to what extent data

capabilities in one market can also be used to an incumbent’s advantage in related

or entirely different markets. Because of its implications for different markets, this

can be looked at under a horizontal

291

or under a conglomerate theory of harm.

While a competitive data advantage can transform into benefits for consumers, it

could also lead to the foreclosure of competitors.

ii. Coordinated effects

a. Specificities of the theory of harm

(223) Just like horizontal and vertical mergers, a conglomerate merger may alter the

market structure so as to allow companies to reach a common understanding

aimed at increasing prices, limiting production or dividing the market.

292

The

framework of analysis is the same as outlined above for coordinated effects in

horizontal and vertical mergers.

b. NCAs applying the theory of harm in digital and technology mergers

(224) None of the 69 cases analysed in-depth addressed this theory of harm.

(225) As mentioned above (para (201)), the prospect of an agreement such as the one

concluded between Google and Apple to maintain Google Search’s status as

default search engine on Apple devices

293

could, in the framework of a merger

review, be considered as a possible coordinated effect in a conglomerate or also

vertical merger.

iii. Other effects

a. Specificities of the theory of harm

(226) This category includes any other anti-competitive effects that a conglomerate

merger may give rise to and that are not caught by the previous categories. In

particular, the strengthening of a digital ecosystem could find its place here.

b. NCAs applying the theory of harm in digital and technology mergers

(227) Only one of the 69 cases analysed in-depth addressed this theory of harm. This

was the unconditional clearance of Meta/Kustomer (2022) by the German

NCA.

294

In that case, the NCA emphasised that this acquisition by Meta also

needed to be assessed against the background of Meta’s social media ecosystem.

In particular, it investigated whether the acquisition could enable Meta to

safeguard, further develop or strengthen its own digital ecosystem. This could

291

See European Commission, Horizontal Merger Guidelines 2004, para 36.

292

European Commission, Non-horizontal Merger Guidelines 2008, paras 119 ff.

293

See Wakabayashi and Nicas (n 261). This deal is being challenged in US v Google, US District Court

for the District of Columbia, Case 1:20-cv-03010 (complaint brought on 20 October 2020, amended on 15

January 2021).

294

Bundeskartellamt, Meta/Kustomer (B6-21/22, 11 February 2022).

Merger review in digital and technology markets: Insights from national case law

then manifest itself on particular relevant markets, such as in social media

advertising. In this respect, the NCA particularly considered the data advantage

that the acquisition of Kustomer would provide Meta with. It also analysed to

what extent the acquisition could help Meta to further develop its offerings. The

NCA concluded that, overall, anti-competitive effects on markets in which Meta

already had significant market power were entirely possible. However, it refrained

from opening phase 2 proceedings as it was not possible to establish, to the

required standard of probability, that the services and capabilities associated with

Kustomer were of sufficient importance to lead to a strengthening of Meta’s

ecosystem as sketched by the NCA.

c. Discussion

(228) Theories of harm relating to the strengthening of a digital ecosystem are starting

to make their way into national decisional practice, even if no legal consequences

have been derived from them so far. This issue is discussed in more detail below

(section V.4.i.). Suffice to say that at the European level, the European

Commission’s recent review of the same merger similarly led to an assessment of

the combination of different types of vertical foreclosure strategies.

295

4. Theories of harm largely absent in the decisional practice

(229) The national case law relating to digital and technology mergers was analysed

based on the most common categorisation of theories of harm available today. It

is clear, however, that by sticking to these traditional categories, NCAs also

necessarily stay within well-trodden paths of merger analysis. In certain

circumstances, this may mean that competition concerns may be overlooked or

underestimated when they arise in dynamic market environments and against the

background of changing competition dynamics that would require an adjustment

of the traditional analytical framework. For this reason, the following points out

three considerations that may be useful when assessing the analytical framework

of merger control against the background of the digitalisation of markets.

i. Building and reinforcing a digital ecosystem

(230) With over 800 unchallenged acquisitions over the past decade, Big Tech

companies have acquired a substantial number of start-ups without any antitrust

295

European Commission Decision of 27 January 2022, M.10262 – Meta/Kustomer.

Merger review in digital and technology markets: Insights from national case law

intervention.

296

This has helped the creation of a small number of vast digital

ecosystems

297

– and may in itself raise new competition concerns.

(231) In fact, competition concerns in today’s digital markets may arise not so much

because of well-defined competition issues in specific relevant markets, and

perhaps not even because of every single small merger that is completed. Instead,

competition concerns related to digital platforms arise from the combined effects

of these mergers in multi-sided markets with strong network effects, with a great

many markets concerned. Of the over 800 acquisitions that were completed by

Big Tech in recent years,

298

only one known instance of a prohibition by

competition authorities comes to mind – the recent prohibition of the Meta/Giphy

merger in the UK, which was challenged in court but upheld on substance.

299

This

can mean one of three things: (i) either these mergers were not reviewed because

of a lack of jurisdiction, or (ii) they are completely benign in their impact on

competition, or (iii) they cannot be well depicted under currently applicable

theories of harm. For instance, in digital acquisitions it is regularly the case that

the acquirer has significant market power, while the target has no noteworthy

market power at all and that there is therefore hardly any increment in market

shares.

300

However, at least at the level of the European Union, recent decisional

practice has shown how the significant impediment of effective competition test

under Article 2 para 3 EUMR is starting to accommodate new market realities in

complex digital markets that involve digital ecosystems.

301

(232) Regularly, acquisitions by digital platforms will lead to a situation where the

target’s business is both in a vertical and a conglomerate relationship with the

acquirer’s business. For instance, in Apple/Shazam (2018), the European

Commission underlined that music recognition apps such as Shazam and digital

music distribution apps (such as Apple Music or Spotify) were complementary or

at least closely related products, that links from the music recognition app were

296

Federal Trade Commission, ‘Non-HSR Reported Acquisitions by Select Technology Platforms, 2010-

2019: An FTC Study’ (September 2021) <https://www.ftc.gov/system/files/documents/reports/non-hsr-

reported-acquisitions-select-technology-platforms-2010-2019-ftc-

study/p201201technologyplatformstudy2021.pdf>; American Economic Liberties Project, ‘Big Tech

Mergers’ <https://www.economicliberties.us/big-tech-merger-tracker/>; Chris Alcantara, Kevin Schaul,

Gerrit De Vynck and Reed Albergotti, ‘How Big Tech got so big: Hundreds of acquisitions’ Washington

Post (21 April 2021) <https://www.washingtonpost.com/technology/interactive/2021/amazon-apple-

facebook-google-acquisitions/>; European Commission, Evaluation of procedural and jurisdictional

aspects of EU merger control, SWD(2021) 66 final, para 111.

297

Eg, see Konstantinos Stylianou, ‘Exclusion in Digital Markets’ (2018) 24 Michigan Telecommunications

& Technology Law Review 181, 207; Georgios Petropoulos, ‘Competition Economics of Digital

Ecosystems’ (2020) DAF/COMP/WD(2020)91; Marc Bourreau, ‘Some Economics of Digital Ecosystems’

(2020) DAF/COMP/WD(2020)89.

298

On these, see the references in n 296 above.

299

Competition & Markets Authority, Meta/Giphy (ME/6891/20-II, 6 December 2021); Meta/Giphy,

[2022] CAT 26, 14 June 2022.

300

This was the case for a number of Irish cases in the online betting and gaming sectors, as well as in

Office of Fair Trading, Google/BeatThatQuote (ME/4912/11, 1 July 2011).

301

Eg, see European Commission Decision of 17 December 2020, M.9660 – Google/Fitbit; European

Commission Decision of 27 January 2022, M.10262 – Meta/Kustomer. On the challenges of market

definition in digital ecosystems, see Robertson (n 72).

Merger review in digital and technology markets: Insights from national case law

also an important tool for customer acquisition, and that data from music

recognition apps could be used to improve digital music streaming apps. From

this, it assessed both vertical and conglomerate foreclosure strategies. It

concluded, however, that while the merged entity would have both the ability and

incentive to engage in such strategies, they would not in themselves negatively

impact competition.

302

While this might be true for individual foreclosure

strategies, what is missing from this and other cases is a more comprehensive

understanding of the combination of post-merger strategies that serve to further

reinforce digital ecosystems and could thereby, ultimately, negatively impact

competition.

303

The same applies to business strategies that transcend individual

relevant markets that are frequently the unit of analysis for merger control. This,

of course, is closely linked to the spreading of digital ecosystems and the data

advantages that are encountered in digital markets. While the effects of an

individual merger, viewed in isolation, might not yet give rise to the types of anti-

competitive effects that the merger rules are explicitly targeting, it might be the

very combination of those effects that ultimately add up to a ‘significant

impediment of effective competition’ or a ‘substantial lessening of competition’.

(233) It would seem that current enforcement guidelines do not yet envisage an

assessment that takes the strengthening of a digital ecosystem into account,

presumably because they were published at a time when such strategies were not

yet commonplace. This is not to say, however, that the EU Merger Regulation or

national merger rules necessarily stand in the way of such an assessment. Indeed,

the European Commission’s recent Meta/Kustomer review assessed the

combination of different types of vertical foreclosure strategies.

304

Such theories

of harm need to be developed with diligence, and this certainly is work in

progress: In the recent unconditional clearance of Meta/Kustomer in Germany

(2022), for instance, the Bundeskartellamt stated that while it believed the

strengthening of Meta’s digital ecosystem through the acquisition was quite

likely, it could not prove this to the required legal standard and therefore did not

initiate phase 2 proceedings.

305

(234) Joint ventures and minority stakes can also be avenues through which digital

platforms enlarge their digital ecosystems. For instance, in the GE/Microsoft joint

venture (2012), a health intelligence platform was created that would add to

Microsoft’s increasing ecosystem.

306

In the Sanofi/Google/DMI joint venture

(2016), a new company providing services for the management and treatment of

diabetes was created.

307

And in Amazon/Roofoods (2020), a minority stake in a

food delivery platform paved Amazon’s way back into the online restaurant

302

European Commission Decision of 6 September 2018, M.8788 – Apple/Shazam, paras 260 ff.

303

Fletcher (n 71) paras 24 f (containing further references).

304

European Commission Decision of 27 January 2022, M.10262 – Meta/Kustomer.

305

Bundeskartellamt, Meta/Kustomer (B7-119/21, 11 February 2022).

306

European Commission Decision of 10 February 2012, COMP/M.6474 – GE/Microsoft/JV. This was

cleared unconditionally and subject to a simplified procedure.

307

European Commission Decision of 23 February 2016, M.7813 – Sanofi/Google/DMI JV.

Merger review in digital and technology markets: Insights from national case law

ordering market in the UK.

308

These should therefore be more closely observed as

well.

(235) In the European Commission’s Google/Fitbit case (2020), the sheer number of

relevant markets affected by this acquisition aptly indicated the ecosystem nature

of this merger.

309

Most national cases, however, will not look like this because –

based on the EUMR’s turnover thresholds – NCAs tend to deal with much smaller

transactions than the European Commission. An exception are Big Tech

acquisitions of small start-ups that do not (yet) generate significant turnover and

that could end up before NCAs. These cases, however, may be referred to the

European Commission under Article 22 EUMR, or the notifying parties may ask

for the Commission to deal with the merger under Article 4 para 5 EUMR.

(236) The creation and strengthening of digital ecosystems are objectives that several

digital platforms pursue, and should therefore not be overlooked in the merger

assessment. The ways in which this can be done are manifold and merit more in-

depth analysis and research.

ii. Data advantages

(237) In digital mergers, the acquisition of personal and non-personal data and data sets

is regularly seen as a possible competition concern as it could foreclose

competitors. At the same time, increased data capabilities can also lead to a

considerable improvement in digital services to the benefit of consumers.

(238) So far, data advantages obtained through an acquisition have been assessed as a

novel horizontal unilateral theory of harm, as another type of horizontal harm, or

as a vertical or conglomerate concern. While some cases dealt with the merged

entity’s access to commercially sensitive information about competitors,

310

others

concerned data sets about users that could be monetised by a merged entity.

311

(239) While the non-rivalrous nature of data is often emphasised in the case law,

312

should also be borne in mind that different digital platforms have varying abilities

to actually access data that is relevant for competition.

(240) In Google/Fitbit (2020), the European Commission assessed the data advantage

stemming from the concentration in considerable detail. In that case, the

Commission assessed various theories of harm relating to a large number of

different relevant markets, highlighting how this transaction is embedded in a vast

308

Competition & Markets Authority, Amazon/Roofoods (ME/6836/19-II, 4 August 2020).

309

European Commission Decision of 17 December 2020, M.9660 – Google/Fitbit, para 384 (for an

overview of affected markets).

310

Javna agencija Republike Slovenije za varstvo konkurence, Sully System/CENEJE (3061-27/2017-71,

12 April 2018); Autoriteit Consument & Markt, Sanoma/Iddink (ACM/19/035555, 28 August 2019);

Competition & Markets Authority, Uber International/GPC Computer Software (ME/6903/20, 29 March

2021).

311

Úřad pro ochranu hospodářské soutěže, Rockaway Capital/Heureka (ÚOHS-S0013/2016/KS-

21123/2016/840/DVá, 16 May 2016); Autorité de la concurrence, TF1/Aufeminin (18-DCC-63, 23 April

2018).

312

Eg, see Competition & Markets Authority, Meta/Kustomer (ME/6920/20, 27 September 2021).

Merger review in digital and technology markets: Insights from national case law

digital ecosystem of interconnected products and services.

313

The Commission

noted that this transaction did not relate to horizontally affected markets in a

traditional sense. Instead, it analysed data-related effects – arising from Fitbit as

a source of data on health and personal activities – as horizontal effects, because

data was recognised to constitute a valuable asset.

314

These effects were thought

to arise in the exploitation of said data for advertising and digital healthcare.

315

the merger enabled the combination of datasets, this could, in the eyes of the

Commission, lead to a situation resembling the one set out in its Horizontal

Merger Guidelines,

316

namely the gaining of such control over an asset that

competitors’ entry or expansion becomes more difficult.

317

The data accumulation

through the acquisition of Fitbit would strengthen Google’s dominant position in

online search advertising,

318

and this was addressed by the Ads Commitment,

which foresees that Google will not use certain health data in or for Google Ads

and will operate data silos.

319

(241) Access to commercially sensitive information about competitors was at issue in

cases involving horizontal, vertical as well as conglomerate effects, eg in national

cases such as esure/Gocompare.com (UK 2015),

320

Sully System/CENEJE (SI

2018),

321

MIH Food Delivery Holdings/Just Eat (ES 2019),

322

Sanoma/Iddink

(NL 2019),

323

Meta/Giphy (AT 2021),

324

and Uber International/GPC Computer

Software (UK 2021).

325

This was also the case in the European Commission’s

cases of Broadcom/Brocade (2017)

326

and Apple/Shazam (2018).

327

(242) In other national cases, access to user data that would become available through

an acquisition was at the centre of the analysis, eg in Rockaway Capital/Heureka

(CZ 2016),

328

TF1/Aufeminin (FR 2018),

329

and Meta/Kustomer (UK 2021).

330

313

European Commission Decision of 17 December 2020, M.9660 – Google/Fitbit, para 384 (for an

overview of affected markets).

314

European Commission Decision of 17 December 2020, M.9660 – Google/Fitbit, paras 385, 399.

315

European Commission Decision of 17 December 2020, M.9660 – Google/Fitbit, para 400.

316

European Commission, Horizontal Merger Guidelines 2004, para 36.

317

European Commission Decision of 17 December 2020, M.9660 – Google/Fitbit, para 401.

318

European Commission Decision of 17 December 2020, M.9660 – Google/Fitbit, para 468.

319

European Commission Decision of 17 December 2020, M.9660 – Google/Fitbit, Commitments of 4

November 2020, p 1.

320

Competition & Markets Authority, esure Group/Gocompare.com (ME/6495-14, 23 February 2015).

321

Javna agencija Republike Slovenije za varstvo konkurence, Sully System/CENEJE (3061-27/2017-71,

12 April 2018).

322

Comisión Nacional de los Mercados y la Competencia, MIH Food Delivery Holdings/Just Eat

(C/1072/19, 5 December 2019).

323

Autoriteit Consument & Markt, Sanoma/Iddink (ACM/19/035555, 28 August 2019).

324

Kartellgericht, 22 July 2021, 28 Kt 6/21y – Meta/Giphy; Bundeswettbewerbsbehörde (n 169);

Kartellobergericht, 23 June 2022, 16 Ok 3/22k and 16 Ok 4/22g – Meta/Giphy.

325

Competition & Markets Authority, Uber International/GPC Computer Software (ME/6903/20, 29

March 2021).

326

European Commission Decision of 12 May 2017, M.8314 – Broadcom/Brocade, paras 235 ff.

327

European Commission Decision of 6 September 2018, M.8788 – Apple/Shazam, paras 196 ff.

328

Úřad pro ochranu hospodářské soutěže, Rockaway Capital/Heureka (ÚOHS-S0013/2016/KS-

21123/2016/840/DVá, 16 May 2016).

329

Autorité de la concurrence, TF1/Aufeminin (18-DCC-63, 23 April 2018).

330

Competition & Markets Authority, Meta/Kustomer (ME/6920/20, 27 September 2021).

Merger review in digital and technology markets: Insights from national case law

This was also considered in the European case of Google/Fitbit (2020).

331

Further

national cases, such as Blackbaud/Giving (UK 2017)

332

and Google/Looker (UK

2020),

333

concerned data integration among digital services. Delivery Hero (EL

2022) related to increased capabilities to run targeted advertising.

334

Several

national cases related to online betting and gaming concerned access to live

betting exchange data or horse racing and football data.

335

(243) Overall, therefore, multiple aspects of access and use of data as well as of data

integration and data protection have come into play in digital merger cases in

recent years. What matters now is to consolidate the various approaches in order

to develop a coherent approach to assessing data aspects in merger control. Here,

policy choices will need to be made as to the extent to which questions of data

protection can and need to filter into the competition assessment.

iii. Concentration and abuse of dominance

(244) In substantive terms, the theories of harm relied upon in merger control are, of

course, closely related to the types of abuse of dominance that one encounters in

digital markets. For instance, the UK NCA’s concern in Google/BeatThatQuote

(2011)

336

related to the manipulation of search results to demote rivals and to

improve own services’ ranking – reminiscent of the self-preferencing that the

European Commission identified as anti-competitive in the abuse of dominance

case of Google Shopping (2017).

337

Similar concerns arose in the Rockaway

Capital/Heureka merger (CZ 2016).

338

(245) In the German CTS Eventim/Four Artists case, the German NCA highlighted that

it regarded CTS Eventim’s exclusivity contracts with event organisers as

contributing to an abusive customer foreclosure vis-à-vis competing ticketing

platforms. It believed that the same analysis had to apply when assessing this

concentration.

339

331

European Commission Decision of 17 December 2020, M.9660 – Google/Fitbit.

332

Competition & Markets Authority, Blackbaud/Giving (ME/6700/17, 8 September 2017).

333

Competition & Markets Authority, Google/Looker (ME/6839/19, 13 February 2020).

334

Επιτροπή Ανταγωνισμού, Delivery Hero/Alfa Distributions/Inkat/Delivery.gr/E-table (775/2022, 18

April 2022).

335

Competition & Markets Authority, Betfair Group/Paddy Power (ME/6572/15, 17 December 2015);

Competition and Consumer Protection Commission, Paddy Power/Betfair (M/15/059, 15 January 2016);

Competition and Consumer Protection Commission, Ladbrokes/Gala Coral (M/16/007, 10 March 2016);

Competition and Consumer Protection Commission, Flutter Entertainment/Stars Group (M/20/001, 12

May 2020).

336

Office of Fair Trading, Google/BeatThatQuote (ME/4912/11, 1 July 2011) para 68.

337

European Commission Decision of 27 June 2017, AT.39740 – Google Search (Shopping); upheld on

appeal in Case T-612/17, Google and Alphabet/Commission (Google Shopping), ECLI :EU:T:2021:763,

currently on appeal as Case C-48/22 P, Google and Alphabet/Commission (Google Shopping) [2022] OJ

C191/10 (pending).

338

Úřad pro ochranu hospodářské soutěže, Rockaway Capital/Heureka (ÚOHS-S0013/2016/KS-

21123/2016/840/DVá, 16 May 2016).

339

Bundeskartellamt, CTS Eventim/Four Artists (B6-35/17, 23 November 2017).

Merger review in digital and technology markets: Insights from national case law

(246) While a great many number of food delivery mergers were considered by several

NCAs (e.g., ES 2016, 2019 and 2022; ES 2019; RO 2021; EL 2022),

340

the

European Commission recently started investigations in that sector.

341

While the

Commission’s investigations appear to focus on a possible agreement to share

markets, it will also be interesting to see to what extent competition concerns

voiced in the merger decisions are encountered in the antitrust probes.

(247) While the UK decided not to challenge Meta’s acquisition of Instagram in 2012,

342

and both the European Commission and the United States Federal Trade

Commission decided not to challenge Meta’s acquisition of WhatsApp in 2014,

343

the Federal Trade Commission is currently trying to break up these merged

entities ex post based on a claim of monopolisation.

344

The question whether a

similar approach would also be feasible under EU law is currently being

considered in a preliminary ruling before the Court of Justice of the European

Union.

345

In Towercast v Autorité de la concurrence, the French Cour d’appel de

Paris asked the Court to specify whether Article 21 EUMR precludes an NCA

from assessing whether a concentration that has neither a Union dimension nor

comes within the national jurisdictional thresholds, and that has not been referred

to the European Commission based on Article 22 EUMR, may constitute an abuse

of a dominant position under Article 102 TFEU. The preliminary ruling could

open up new avenues in this regard.

(248) These small glimpses into national merger control show that a more cohesive

approach to abuses of dominance on the one hand and theories of harm under

merger control on the other hand can be a useful tool to better grasp competition

concerns in digital mergers. Here, ongoing legislative developments – e.g., new

§ 19a ARC

346

or the Digital Markets Act

347

– can provide a new impetus for

updating theories of harm so that they better reflect economic realities.

5. Remedies

(249) Two types of remedies are generally distinguished, structural remedies and

behavioural remedies. Within these categories, however, a great many different

340

Comisión Nacional de los Mercados y la Competencia, Just Eat/La Nevera Roja (C/0730/16, 31 March

2016); Comisión Nacional de los Mercados y la Competencia, Just Eat Spain/Canary Delivery Company

(C/1046/19, 10 September 2019); Comisión Nacional de los Mercados y la Competencia, MIH Food

Delivery Holdings/Just Eat (C/1072/19, 5 December 2019); Comisión Nacional de los Mercados y la

Competencia, Delivery Hero/Glovo (C/1260/21, 23 February 2022); România Consiliul Concurenței,

Glovoappro/Foodpanda (86/22.11.2021, 22 November 2021); Επιτροπή Ανταγωνισμού, Delivery

Hero/Alfa Distributions/Inkat/Delivery.gr/E-table (775/2022, 18 April 2022).

341

European Commission, ‘Antitrust: Commission confirms unannounced inspections in the online food

delivery sector’ IP/22/4345 (6 July 2022).

342

Office of Fair Trading, Facebook/Instagram (ME/5525/12, 14 August 2012).

343

European Commission Decision of 3 October 2014, COMP/M.7217 – Facebook/WhatsApp;

344

Federal Trade Commission v Facebook, US District Court for the District of Columbia, Case 1:20-cv-

3590 (11 January 2022).

345

Case C-449/21, Towercast v Autorité de la concurrence [2021] OJ C452/9 (pending).

346

Act against Restraints of Competition, German Federal Law Gazette I 2013/1750, 3245 as amended.

347

Regulation (EU) 2022/1925 of the European Parliament and of the Council of 14 September 2022 on

contestable and fair markets in the digital sector and amending Directives (EU) 2019/1937 and (EU)

2020/1828 (Digital Markets Act, DMA) [2022] OJ L265/1.

Merger review in digital and technology markets: Insights from national case law

remedies can be envisaged that may address the competition concerns raised in a

specific merger.

348

The following sets out the various remedies that were approved

in all digital and technology cases involving remedies that were analysed for this

Report.

i. Structural remedies

(250) A small number of national cases included structural remedies. To address the

Romanian NCA’s concerns related to horizontal unilateral effects in Dante

International/PC Garage (2016) (see above, para (85)), Dante committed to (i)

divest four online stores active in the non-food retail market (namely, pcfun.ro,

shopit.ro, garagemall.ro and electrofun.ro) as an ongoing concern, and (ii) not to

be involved in the divested activities for at least 10 years.

349

(251) To address its concerns related to horizontal unilateral effects in Pug/StubHub

(2021) (see above, para (90)), the UK NCA required a partial divestiture of

StubHub, namely of the StubHub International business (i.e., StubHub outside of

North America). This was regarded as the only effective remedy for this

completed transaction.

350

(252) To address the UK NCA’s concerns related to horizontal unilateral effects in

Adevinta/eBay Classifieds Group (2021) (see above, paras (87), (121)), the parties

proposed the following commitments: (i) divestiture of Gumtree UK (incl

Motor.co.uk) on a debt-free basis, (ii) divestiture of Shpock to RussMedia Equity

Partners on a debt-free basis, (iii) provision of transitional services in relation to

Shpock and Gumtree UK. The NCA accepted these commitments.

351

(253) Involving the same transaction, eBay/Adevinta (2021), Adevinta and eBay also

agreed to commitments with the Austrian NCA to address the latter’s concerns

related to horizontal unilateral effects (see above, para (86)). Adevinta and eBay

proposed and the Austrian NCA accepted the following commitments: (i) in order

to eliminate incentives for anti-competitive behaviour, eBay reduces its economic

stake in Adevinta to 33% or less within 18 months; (ii) in order to prevent eBay’s

ability to engage in anti-competitive behaviour, both parties take measures to

prevent the exchange of information and to reduce the economic influence of eBay

on willhaben.at. In particular, eBay commits to restrict the voting rights of eBay-

appointed board members on issues related to willhaben.at and Adevinta commits

not to exercise its right to appoint a managing director as well as several board

members at willhaben.at. The commitments are binding as long as eBay appoints

a director to Adevinta’s board and eBay’s financial or voting interest in Adevinta

is 25% or higher; but for a maximum of ten years.

352

348

European Commission, Commission notice on remedies acceptable under Council Regulation (EC) No

139/2004 and under Commission Regulation (EC) No 802/2004 [2008] OJ C267/1, paras 22-70.

349

România Consiliul Concurenței, Dante International/PC Garage (84/24.11.2016, 24 November 2016).

350

Competition & Markets Authority, Pug/StubHub (ME/6868/19-II, 2 February 2021).

351

Competition & Markets Authority, Adevinta/eBay Classifieds Group (ME/6897/20, 16 February 2021).

352

Bundeswettbewerbsbehörde, eBay/Adevinta (BWB/Z-5141, Z-5142, Z-5420 and Z-5421, 18 June 2021).

Merger review in digital and technology markets: Insights from national case law

ii. Behavioural remedies: access and interoperability

(254) Several national cases included various types of access remedies. To address the

Austrian NCA’s concerns related to customer foreclosure in CTS

Eventim/Barracuda Holding (2019) (see above, para (179)), CTS Eventim

committed that its Austrian ticketing service oeticket would, for a duration of five

years, (i) provide customers that wanted to use its ticketing services with non-

discriminatory access to its full range of services, including advertising contracts,

and (ii) not to engage in self-preferencing in relation to the content and the way

that events are promoted on oeticket.com.

353

(255) To address vertical foreclosure concerns raised in Meta/Giphy (2022) (see above,

para (151)), the Austrian Cartel Court imposed the following conditions for

clearance of the merger: Meta has to (i) provide non-discriminatory access to

Giphy’s GIF library for competing social media providers (for a duration of five

years) and (ii) grant alternative GIF libraries, under certain conditions, access to

Giphy’s GIF library via programming interfaces (APIs) to allow the establishment

of an additional GIF provider other than Giphy (Meta) and Tenor (Google) (for a

duration of seven years).

354

The conditional clearance was confirmed by Austria’s

Supreme Cartel Court.

355

(256) To address the Dutch NCA’s concerns related to vertical input foreclosure in

Sanoma/Iddink (2019) (see above, para (153)), Sanoma agreed to (i) grant

publishers access to the Magister API under fair, reasonable and non-

discriminatory (FRAND) conditions, including the necessary information to

enable the same link with Magister for all publishers; (ii) provide information

about Magister to publishers who request this under FRAND conditions, if they

provide similar information to Sanoma; and (iii) conclude a service agreement

with publishers for the disclosure and use of digital learning resources of

publishers via Magister, which includes the option for publishers to have it

established by means of their own audit that the publisher in question gains access

to the Magister API in a FRAND manner and a dispute settlement procedure is to

be arranged.

356

(257) To address the Dutch NCA’s concerns related to vertical input foreclosure in NS

Groep/Pon Netherlands (2020) (see above, para (154)), the parties to the joint

venture agreed to grant (potential) competitors of the joint venture, access to the

application programming interfaces (APIs) of the train and OV-fiets services on

equal (commercial) conditions as these are made available to the joint venture.

357

(258) In two national cases, it was considered whether exclusive licenses could

constitute an effective remedy to address competition concerns related to

horizontal unilateral effects, thus granting (limited) access through a license. In

one case it was considered an appropriate remedy, while another time it was not

353

Bundeswettbewerbsbehörde, CTS Eventim/Barracuda Holding (BWB/Z-4651, 3 December 2019).

354

Kartellgericht, 22 July 2021, 28 Kt 6/21y – Facebook/Giphy.

355

Kartellobergericht, 23 June 2022, 16 Ok 3/22k and 16 Ok 4/22g – Meta/Giphy.

356

Autoriteit Consument & Markt, Sanoma/Iddink (ACM/19/035555, 28 August 2019).

357

Autoriteit Consument & Markt, NS Groep/Pon Netherlands (ACM/20/038614, 20 May 2020).

Merger review in digital and technology markets: Insights from national case law

regarded as sufficient. To address the Spanish NCA’s concerns related to

horizontal unilateral effects in Schibsted/Milanuncios (2014) (see above, para

(99)), Schibsted committed to maintain the free option of direct publication of

advertisements on the milanuncios.com portal. Furthermore, Schibsted committed

to allow a third party (licensee) to exploit – on an exclusive basis – professional

advertisements displayed on the platform related to the motor segment of

milanuncios.com. The merged entity committed to let the licensee automatically

export advertisements by professional advertisers to the motor section of the

portal, and to access the contact details of professional advertisers. The licensee

would also exclusively receive the income from classified ads published by

professional advertisers in the motor segment. Among others, the licensee would

be allowed to redirect user traffic from clicks on classified ads to its own platform.

The exclusive license would be valid for two years.

358

(259) To address the Swedish NCA’s concerns related to horizontal unilateral effects in

Blocket/Hemnet (2016) (see above, para (76)), Blocket proposed to grant an

exclusive license to a smaller website (Bovision) for a certain period of time,

whereby Blocket would automatically refer users that were accessing its website

for properties sold through realtors to Bovision. This would, in the acquirer’s

view, remove the horizontal overlap between Blocket and Hemnet. As Bovision

was only a very small player however, the NCA did not consider this an effective

remedy. In relation to real estate agencies, the remedies proposed by Blocket

involved limitations of sellers’ commitments to future advertising on Hemnet, a

time-limited price cap for advertisements, and further commitments. As the

market test was overall negative, and the NCA did not believe this to be an

effective remedy, the authority moved to block the concentration. Faced with this

possibility, the parties withdrew their notification.

359

iii. Further types of behavioural remedies

(260) A range of different behavioural remedies apart from access remedies were

included in national cases. There have been a number of mergers related to food

delivery services, covering Spain, Romania and Greece. Competition concerns

related to these concentrations were resolved through very similar commitments

that aimed at preventing exclusivity obligations for business partners.

(261) To address the Spanish NCA’s concerns related to horizontal unilateral effects in

Just Eat/La Nevera Roja (2016) (see above, para (81)), Just Eat proposed and the

Spanish NCA accepted the following commitments: (1) not to impose exclusivity

on restaurants (currently or in the future) affiliated with it; (2) no tying of

commissions paid by affiliated restaurants (current or in the future) to an

exclusivity obligation; (3) no penalisation of affiliated restaurants (current or in

the future) for joining third platforms. The public documents did not state the

duration of these commitments. Just Eat further promised to communicate these

358

Comisión Nacional de los Mercados y la Competencia, Schibsted/Milanuncios (C/0573/14, 20

November 2014).

359

Konkurrensverket, Blocket/Hemnet (84/2016, 2016).

Merger review in digital and technology markets: Insights from national case law

commitments to its affiliates within two weeks of them being accepted by the

NCA. The NCA considered that these commitments would severely limit Just

Eat’s ability to engage in exclusivity strategies, thus allowing restaurants to

continue multi-homing. Bearing in mind the expansive nature of the relevant

market and different competitive strategies employed by different platforms, the

NCA considered that the commitments would allow the market to remain

competitive.

360

(262) To address the Romanian NCA’s concerns related to horizontal unilateral effects

in Glovoappro/Foodpanda (2021) (see above, para (84)), Glovo offered and the

Romanian NCA accepted the following commitments related to exclusivity

clauses with restaurants: Glovo would (1) not impose an exclusivity obligation on

restaurants in current or future intermediation agreements with restaurants, (2) not

contractually base the level of commissions paid by restaurants on exclusivity, (3)

not penalize restaurants for joining another online food ordering platform, and (4)

not renew the target’s exclusivity obligations vis-à-vis restaurants.

(263) To address the Spanish NCA’s concerns related to horizontal unilateral effects in

MIH Food Delivery Holdings/Just Eat (2019) (see above, para (83)), MIH

proposed the following commitments: (1) MIH would not obtain access to

commercially sensitive information of either Delivery Hero or Glovo; (2) MIH

would not influence Glovo’s strategy in markets where it competed (or may

compete) with Just Eat in Spain; (3) Delivery Hero (and Glovo) would not be able

to access commercially sensitive information of Just Eat. These commitments

would be binding for three years.

361

(264) In the recent case of Delivery Hero/Alfa Distributions/Inkat/Delivery.gr/E-table

(2022), the Greek NCA only cleared these acquisitions by the food-delivery

platform Delivery Hero subject to conditions, namely that Delivery Hero would

not bundle food-ordering services with restaurant-reservation services when

offering these to business users. This non-bundling commitment was also not

allowed to be circumvented by offering rebates or lower fees. Furthermore,

Delivery Hero committed that it would not use data collected from its food-

delivery platform for personalised advertising for its restaurant-booking services

(or vice versa) unless users consented to this in accordance with applicable data

protection rules.

362

The commitments were entered into for a duration of two

years, but depending on market developments the Greek NCA can prolong them

by an additional year.

363

360

Comisión Nacional de los Mercados y la Competencia, Just Eat/La Nevera Roja (C/0730/16, 31 March

2016).

361

Comisión Nacional de los Mercados y la Competencia, MIH Food Delivery Holdings/Just Eat

(C/1072/19, 5 December 2019).

362

Επιτροπή Ανταγωνισμού, Delivery Hero/Alfa Distributions/Inkat/Delivery.gr/E-table (775/2022, 18

April 2022).

363

‘Delivery Hero wins conditional approval for Greek acquisitions’ MLex (2 May 2022)

<https://content.mlex.com/#/content/1374846?referrer=email_dailycontentset&dailyId=137821cefd9e45f

bb3e5c211a46cffb5>.

Merger review in digital and technology markets: Insights from national case law

(265) In a further case, non-exclusivity was equally seen as a remedy to resolve concerns

related to vertical input foreclosure. In the Austrian case of CTS

Eventim/Barracuda Holding (2019) (see above, para (151)), CTS Eventim

committed that its Austrian ticketing service oeticket would, for a duration of five

years, (i) not require exclusivity from brick-and-mortar resellers, (ii) not require

exclusivity from customers of its JetTicket brand, and (iii) not impose exclusivity

beyond two years with white label ticketing platforms in Austria.

364

(266) To address the Czech NCA’s concerns related to vertical effects in Rockaway

Capital/Heureka (2016) (see above, para (191)), Rockaway Capital proposed to

limit the possibility to gather excessive data related to a specific, score-based

service that shows the reliability of the online store from the customers’

perspective. In particular, Heureka.cz would not oblige sellers to provide other

data than the users’ email addresses, and it was not allowed to favour sellers that

provided more data or disadvantage those who did not.

365

(267) To address the Slovenian NCA’s concerns related to vertical input foreclosure and

other vertical effects in Sully System/CENEJE (2018) (see above, paras (155) and

(193)), the parties offered the following commitments to the authority: (i) Ceneje

would not discriminate, either directly or indirectly, between online retailer ads,

in particular with regard to appearance and display, (ii) Ceneje would maintain

neutral and objective search and ranking algorithms used for online retailers’ ads,

(iii) Ceneje would maintain neutral and objective recommendations, (iv) Sully

System’s website would include a statement that Ceneje is a member of the

Rockaway Group, (v) Sully System would ensure that Ceneje meets all its

obligations in the proposed commitments, (vi) Sully System would provide

historical price data to the authority every six months for a period of 30 months.

366

(268) To address the Dutch NCA’s concerns related to other non-coordinated vertical

effects, namely the access to commercially sensitive information, in

Sanoma/Iddink (2019) (see above, para (192)), Sanoma agreed to implement

internal measures to ensure that Sanoma does not have access to competitively

sensitive information about other publishers.

367

(269) Only in one case were remedies designed to address conglomerate effects arising

from a merger. To address the Czech NCA’s concerns related to conglomerate

foreclosure in Rockaway Capital/Heureka (2016) (see above, para (209)),

Rockaway Capital proposed to include a clear link between Heureka.cz and other

Rockaway Capital activities on the website, and committed not to discriminate

against independent sellers, especially as regards the prescribed number of

positions of recommended shops and the minimum number of search results.

368

364

Bundeswettbewerbsbehörde, CTS Eventim/Barracuda Holding (BWB/Z-4651, 3 December 2019).

365

Úřad pro ochranu hospodářské soutěže, Rockaway Capital/Heureka (ÚOHS-S0013/2016/KS-

21123/2016/840/DVá, 16 May 2016).

366

Javna agencija Republike Slovenije za varstvo konkurence, Sully System/CENEJE (3061-27/2017-71,

12 April 2018).

367

Autoriteit Consument & Markt, Sanoma/Iddink (ACM/19/035555, 28 August 2019).

368

Úřad pro ochranu hospodářské soutěže, Rockaway Capital/Heureka (ÚOHS-S0013/2016/KS-

21123/2016/840/DVá, 16 May 2016).

Merger review in digital and technology markets: Insights from national case law

iv. Discussion

(270) It is notable that very few national cases resorted to structural remedies in order

to address competition concerns. If this occurred, then it was to address horizontal

unilateral effects. Behavioural remedies have been the prevalent way to resolve

competition concerns in national merger cases in the digital and technology

sectors.

(271) Over the past years, access and interoperability commitments have become a

regularly encountered remedy in digital merger cases. In particular, the access to

APIs on non-discriminatory terms, as was also required in Google/Fitbit

(2020),

369

has become a more frequent type of access remedy that intends to

ensure interoperability so that no foreclosure effects can arise while at the same

time enabling efficiencies from mergers to materialise. Other types of access

remedies included access to services and access to a GIF library. None of the

national cases analysed in-depth led to a finding of vertical input foreclosure that

warranted the granting of a license that would be comparable to the licenses that

resolved the competition concerns in Avago/Broadcom.

370

(272) Behavioural remedies outside of access commitments constituted the most

prevalent types of remedies found in national cases. While an exclusive license

for exploiting professional advertisements was considered an effective remedy to

address a concern related to horizontal unilateral effects (Schibsted/Milanuncios

2014), this type of remedy was proposed but not considered sufficient in a further

case (Blocket/Hemnet 2016). In a range of cases revolving around digital

platforms, non-exclusivity commitments were seen as appropriate remedies to

address possible horizontal unilateral effects. When it comes to addressing

concerns related to vertical effects, these were resolved with behavioural remedies

such as transparency provisions, the commitment not to engage in self-

preferencing, non-discrimination commitments, and a commitment not to access

commercially sensitive information.

(273) It is notable that no national cases included commitments to keep certain acquired

data sets separate – as was the case in the European Commission’s Google/Fitbit

decision (2020).

371

(274) While conglomerate concerns appear to be on the rise in digital mergers, no

extensive experience with remedies to address these concerns has been gathered

on a national level. Only one case addressed competition concerns related to

conglomerate effects, and required the merging party to make its link with the

target transparent and not to discriminate against independent sellers. Here, the

question needs to be asked to what extent and under what circumstances

behavioural remedies can be sufficient to address such concerns, particularly

369

European Commission Decision of 17 December 2020, M.9660 – Google/Fitbit, Commitments of 4

November 2020, p 3.

370

European Commission Decision of 23 November 2015, M.7686 – Avago/Broadcom, paras 119 ff (for

the commitments offered).

371

European Commission Decision of 17 December 2020, M.9660 – Google/Fitbit, Commitments of 4

November 2020, p 1.

Merger review in digital and technology markets: Insights from national case law

where an acquirer owns a digital ecosystem in which monitoring behavioural

commitments can be particularly challenging. For this purpose, an independent

expert (i.e., a software engineering company) was appointed in Google/Fitbit

(2020) in order to assist the monitoring trustee with reviewing the implementation

of the commitments.

372

A similar approach was taken in the commitments offered

in the Commission’s Meta/Kustomer case (2022).

373

(275) To allow for a comparison, several examples shall illustrate remedies that the

European Commission has regarded as apt in cases involving conglomerate

effects: In Broadcom/Brocade (2017), the Commission was concerned that the

merged entity could foreclose competitors by degrading the interoperability of the

merged entity’s FC SAN switches with competing components, as well as by

misusing confidential information it may obtain on suppliers of competing

components, in particular regarding Cisco (conglomerate effects). The

Commission accepted the parties’ revised commitments in this respect, which

consisted of an interoperability commitment and a commitment to protect

confidential information.

374

In Qualcomm/NXP Semiconductors (2018), licensing

and interoperability commitments were designed to address the Commission’s

concerns that the merged entity could engage in a number of conglomerate

foreclosure strategies to its own advantage. A number of divestitures of patents

also formed part of the commitments.

375

(276) In Microsoft/LinkedIn (2016), the European Commission raised competition

concerns related to conglomerate foreclosure effects through a pre-installation of

professional social network (PSN) LinkedIn on Microsoft Windows PCs and a

degradation of interoperability with competing PSNs. These concerns were also

addressed through access remedies as well as the possibility for original

equipment manufacturers to uninstall LinkedIn should it be pre-installed. The

access remedies ensured that not only would Microsoft refrain from pre-installing

LinkedIn on its Windows operating system, but it would also maintain the

interoperability of competing PSNs with its Office products, eg through APIs.

376

In Google/Fitbit (2020), certain API commitments were designed to address the

European Commission’s concerns that Google could leverage its dominant

position in licensable smart operating systems to the market for wrist-worn

wearables, eg by degrading the interoperability of Android smartphones with

other wearables than Fitbit through APIs.

377

Similarly, in Meta/Kustomer (2022),

the European Commission accepted a commitment from Meta to make its B2C

372

See, in particular, European Commission Decision of 17 December 2020, M.9660 – Google/Fitbit, para

28 of the commitments.

373

European Commission Decision of 27 January 2022, M.10262 – Meta/Kustomer, para 17 of the

commitments.

374

European Commission Decision of 12 May 2017, M.8314 – Broadcom/Brocade, paras 235 ff.

375

European Commission Decision of 18 January 2018, M.8306 – Qualcomm/NXP Semiconductors, paras

491-807, 808-918 and Commitments, p 6-9.

376

European Commission Decision of 6 December 2016, M.8124 – Microsoft/LinkedIn, paras 278-352 and

Commitments, p 5-7.

377

European Commission Decision of 17 December 2020, M.9660 – Google/Fitbit, paras 716-817 and

Commitments of 4 November 2020, p 4-5.

Merger review in digital and technology markets: Insights from national case law

messaging channel APIs available to third parties that provide customer

relationship management software on a non-discriminatory basis.

378

6. Prohibition decisions

(277) Out of all 97 cases analysed, only 6 led to prohibition decisions.

379

These 6

prohibitions shall briefly be outlined in the following to appreciate which theories

of harm led to these far-reaching merger decisions.

(278) In Swedbank Franchise/Svensk Fastighetsförmedling (2014), a concentration was

blocked because of concerns about horizontal unilateral effects and vertical input

foreclosure. For the purposes of this Report, the latter is of particular interest (see

above, para (148)).

380

This was the first time a Swedish court prohibited a merger.

(279) In CTS Eventim/Four Artists (2017), the German NCA’s concerns related to

horizontal unilateral effects (see above, para (77)) as well as vertical customer

foreclosure (see above, para (178)) led to the prohibition of this acquisition.

381

The parties appealed the prohibition before the Higher Regional Court Düsseldorf,

which confirmed the Bundeskartellamt’s prohibition decision.

382

Upon further

appeal, this was also confirmed by the German Federal Court.

383

(280) In the Hungarian case of Magyar RTL Televízió/Central Digitális Média (2017),

an acquisition was blocked based on media law (see above, para (137)).

384

(281) The completed acquisition in Tobii/Smartbox (2019) was prohibited and the

divestiture of Smartbox ordered due to competition concerns related to horizontal

unilateral effects (see above, para (78)) as well as vertical input (see above, para

(149)) and customer (see above, para (177)) foreclosure.

385

Tobii had proposed

two different sets of remedies to the UK NCA, with a structural element to address

the horizontal competition concerns and a behavioural element to address the

vertical competition concerns. Concerning the structural element, Tobii proposed

to divest Smartbox’s augmentative assistive communication (AAC) hardware

business (partial divestiture) and to keep Smartbox’s AAC software business,

while granting the buyer a perpetual license for Smartbox’s popular software on

FRAND terms as well as allowing it to resell Tobii’s eye gaze cameras. However,

378

European Commission Decision of 27 January 2022, M.10262 – Meta/Kustomer, para 1 of the

commitments.

379

Although Meta/Giphy in the UK is labelled as a ‘clearance’ decision of an already completed acquisition,

this amounted to a substantive prohibition by requiring a full divestiture of the target, and is therefore also

counted as such; Competition & Markets Authority, Meta/Giphy (ME/6891/20-II, 6 December 2021).

380

Stockholms tingsrätt, Swedbank Franchise/Svensk Fastighetsförmedling (T 3629-14, 16 December

2014).

381

Bundeskartellamt, CTS Eventim/Four Artists (B6-35/17, 23 November 2017).

382

Oberlandesgericht Düsseldorf, 5 December 2018, Kart 3/18 (V) – CTS Eventim/Four Artists.

383

Although the Higher Regional Court had not allowed a further appeal on legal grounds, the Federal

Court decided to accept such an appeal (even after the parties had abandoned the merger);

Bundesgerichtshof, 24 March 2020, KVZ 3/19 – CTS Eventim/Four Artists. Subsequently, the Federal

Court confirmed the Bundeskartellamt’s decision that the strengthening of a dominant position can be a

valid reason for prohibiting a merger where competition would be further limited by a concentration;

Bundesgerichtshof, 12 January 2021, KVR 34/20 – CTS Eventim/Four Artists.

384

Gazdasági Versenyhivatal, Magyar RTL Televízió/Central Digitális Média (Vj/87/2016, 24 January

2017).

385

Competition & Markets Authority, Tobii/Smartbox (ME/6780/18-II, 15 August 2019).

Merger review in digital and technology markets: Insights from national case law

the NCA concluded that these commitments would not effectively address the

competition concerns it had identified, based on a risk framework including

specification risks, circumvention risks, distortion risks and monitoring and

enforcement risks. Based thereon, the NCA concluded that the proposed remedies

would not fully address these risks and would only have a limited impact in

addressing the competition concerns identified. Full divestiture was regarded as

the only effective remedy available.

(282) While the Competition Appeal Tribunal agreed with Tobii that the Competition

& Markets Authority’s had not provided sufficient evidential basis for its concerns

relating to partial input foreclosure, it upheld the NCA’s divestiture decision on

all but this one ground.

386

Tobii was not granted permission to appeal that

decision.

387

Tobii has since divested Smartbox.

388

(283) In Sabre/Farelogix (2020), the proposed acquisition of Farelogix by Sabre was

also prohibited by the UK NCA based on horizontal unilateral effects (see above,

para (79)).

389

The parties had offered commitments to the authority, including (i)

making Farelogix’s FLX Services available at the same or lower prices to those

at the time, including levels of support, for an agreed-upon period of time, (ii)

offering all current Sabre GDS customers and all current FLX OC customers the

opportunity to extend their existing contract on the same terms for a period of at

least three years, (iii) to continue investing in the development of FLX Services

capabilities at levels no less than current levels, for an agreed-upon period of time,

and (iv) to continue to offer and support FLX Services capabilities to any third

parties and all outlets that wish to use them to connect to Sabre, other GDSs, other

distribution partners, or directly to travel agents on an agnostic basis, for an

agreed-upon period of time. The NCA concluded, however, that the parties’

remedies proposal did not weigh up the loss of competition that would result from

Farelogix no longer being an independent player that competes to meet airlines’

evolving needs. It regarded the prohibition of the merger as the only effective

means of avoiding a significant lessening of competition.

(284) The Competition Appeal Tribunal dismissed Sabre’s appeal of the NCA

decision.

390

As a result of this case, the merger was terminated on 1 May 2020.

391

In the United States, the Department of Justice equally sought to prohibit the

merger that it viewed as ‘a dominant firm’s attempt to eliminate a disruptive

competitor after years of trying to stamp it out’.

392

While this case was cleared by

386

Tobii/Smartbox, [2020] CAT 1, 10 January 2020.

387

Tobii/Smartbox, [2020] CAT 6, 17 February 2020.

388

‘Tobii divests Smartbox’ (6 October 2020) <https://www.tobii.com/group/news-media/press-

releases/2020/10/tobii-divests-smartbox/>.

389

Competition & Markets Authority, Sabre/Farelogix (ME/6806/19-II, 9 April 2020).

390

Sabre/Farelogix, [2021] CAT 11, 21 May 2021.

391

‘Sabre and Farelogix $360m merger deal cancelled’ (1 May 2020) <https://www.phocuswire.com/sabre-

farelogix-merger-terminated>.

392

Sabre/Farelogix, Complaint in Case 1:19-cv-01548-UNA (20 August 2019).

Merger review in digital and technology markets: Insights from national case law

a US District Court in a rather controversial judgment,

393

the case was

subsequently vacated because the parties abandoned their merger.

394

(285) Most recently, the UK NCA ‘cleared’ Meta’s completed acquisition of Giphy

subject to conditions in December 2021 – with the condition being a full

divestiture of Giphy, thus effectively amounting to an ex post prohibition.

395

The

NCA voiced concerns related to horizontal effects (loss of a potential competitor;

see above, para (118)) as well as to vertical input foreclosure (see above, para

(150)). In order to address the authority’s concerns, Meta had offered a number of

commitments: (i) an open access remedy relating to APIs, (ii) a commingling

remedy that would allow Giphy search results to be interspersed with results from

another GIF provider, and (iii) a white label licensing remedy to sell a white label

copy of Giphy’s content library and a license to use Giphy’s search algorithm for

five years. The authority was not satisfied with these proposed behavioural

commitments as the competition concerns that arose in this dynamic market

would not be alleviated by time-limited behavioural changes. It also highlighted

a risk of Meta circumventing the commitments, and difficulties in monitoring and

enforcing.

(286) This case was on appeal before the Competition Appeal Tribunal on six grounds,

of which the Tribunal dismissed five and only upheld one in relation to a failure

on the part of the UK NCA to properly consult with the parties.

396

(287) Overall, the picture on prohibitions of digital mergers is rather straightforward:

apart from the special Hungarian case based on media law, all prohibitions related

to the loss of an actual competitor (plus, in one case, vertical customer foreclosure)

or the loss of a potential competitor plus vertical input foreclosure. This shows

that horizontal theories of harm continue to be regarded as the most credible threat

to competitive markets, also in digital environments, despite recent research that

has shown that conglomerate (and vertical) effects resulting from digital mergers

merit closer scrutiny.

397

393

US v Sabre/Farelogix, 452 F. Supp. 3d 97 (D. Del. 2020). That court applied two-sided market theory

in a way that does not correspond to market realities (see p 136), holding that two-sided platforms cannot

compete with one-sided market offerings based on Ohio v American Express, 138 S. Ct. 2274, 2285 (2018).

394

As the Department of Justice explained when asking the US Court of Appeals for the Third Circuit to

vacate the District Court judgment, it also did so because that judgment’s pronouncements regarding

competition among one- and two-sided businesses would have too much of a bearing on future antitrust

cases; US Department of Justice’s Motion to Vacate, Case No. 20-1767 (12 May 2020). The District Court’s

judgment was vacated on 20 July 2020.

395

Competition & Markets Authority, Meta/Giphy (ME/6891/20-II, 6 December 2021).

396

Meta/Giphy, [2022] CAT 26, 14 June 2022.

397

Witt (n 13).

Merger review in digital and technology markets: Insights from national case law

VI. Conclusions

(288) In Europe, national merger cases in digital and technology markets have

proliferated in recent years. This has enabled the comparative analysis of the

decisional practice carried out in this Report. This comparison allows us, for the

first time, a glimpse into the theories of harm that NCAs have applied in these

merger cases as well as a better understanding of the types of remedies that NCAs

regarded as effective to address the competitive concerns they found to arise.

(289) While this conclusion is not the place to repeat the main findings deduced from

this comparison – for this, the reader is referred to the executive summary and the

introduction – it is safe to say that the NCA analysis still very much runs along

the traditional lines of horizontal – vertical – conglomerate effects. Within these

traditional categories, however, NCAs are increasingly accommodating the

specific characteristics of competition in digital and technology markets: data and

data capabilities as an important asset, multi-homing of users as a factor to

consider, the presence of Big Tech conglomerates as a competitive force that

smaller players need to reckon with, ecosystem competition, and many more.

Types of anti-competitive behaviour that appear to be encountered more

frequently in these digital and technology markets are also increasingly being

considered when remedies are negotiated.

(290) Going forward, it will be useful to keep two things in mind: First of all, digital

markets are often highly dynamic, meaning that merger analysis may need to go

beyond the traditional framework in order to do better justice to the complexities

of digital markets. While the merger laws are often flexible enough to

accommodate markets that are constantly evolving, they also need to be applied

with this flexibility in mind. Here, it will be decisive how courts review NCA

decisions in digital and technology markets. Merger remedies also need to adapt

to this dynamism. As was seen, access and interoperability remedies have already

become an often-used remedy in these types of cases, and this may increase as we

move into the future.

(291) Secondly, as national merger control is increasingly gaining experience in

assessing mergers in digital markets with a focus on keeping these markets

competitive, cooperation among NCAs and between the European Commission

and NCAs will remain essential. For Europe, it continues to be the case that

numerous mergers in the digital sphere are analysed at a national level, as they

can only reach the European Commission based on a referral from NCAs or a

request from the parties as long as European turnover thresholds are not reached.

Here, European consistency will continue to depend on close cooperation between

and among NCAs and the European Commission. This is what is required in order

for merger control in Europe to reach its full potential.

(292) In some parts of this world, legislative proposals have already been tabled to better

adapt merger control to digital markets. While a Report comparing national

merger cases is not the place to discuss any such proposals in detail, it is worth

noting that no such proposals have been adopted yet. In the UK, a bespoke merger

Merger review in digital and technology markets: Insights from national case law

regime for digital mergers was proposed that should not only include a transaction

value threshold but also bring about a change in the probability standard that

applies to mergers of companies with a strategic market status.

398

Currently, it

appears that these legislative proposals will not be adopted as originally

planned.

399

(293) A legislative act that was recently published is the Digital Markets Act (DMA) at

the European Union level.

400

In the DMA, a certain concern with mergers by Big

Tech has become palpable. First of all, designated gatekeepers will need to keep

the European Commission informed of their acquisitions, thus allowing the

Commission to monitor their M&A behaviour and giving it insights into

acquisition strategies by gatekeepers.

401

The DMA also goes further and foresees

that once a designated gatekeeper has systematically infringed the DMA, the

Commission may not only increase the fine to 20% (instead of 10%) of the

previous year’s turnover,

402

but it may also impose, based on a market

investigation into that systematic non-compliance, a remedy that can include ‘the

prohibition, during a limited period, for the gatekeeper to enter into a [merger]

regarding the core platform services or the other services provided in the digital

sector or enabling the collection of data that are affected by the systematic non-

compliance’.

403

While this new power will have to be tried and tested, it indicates

that the buying spree on which many Big Tech companies have gone over the past

decade has raised concerns as to the contestability of these markets.

(294) In the area of soft law, the Korean Fair Trade Commission (KFTC) just launched

a study into platform merger review, inquiring into the types of harms that such

merger reviews should focus on.

404

(295) Apart from the legislative and soft law proposals that are currently underway in

different parts of the world, a lot can be done with the merger laws we currently

have in Europe. For the future, it could be useful to frame theories of harm more

in line with the complex and interrelated market realities that we find in the digital

environment, and thereby obtain a clearer view of the three issues that have, so

far, only been assessed in a smaller number of national cases: digital ecosystems,

data advantages and the interaction of mergers with abuse of dominance. A review

of the national decisional practice on digital and technology mergers against the

398

Secretary of State for Digital, Culture, Media & Sport and Secretary of State for Business, Energy and

Industrial Strategy (n 65).

399

Ibitoye (n 65).

400

Regulation (EU) 2022/1925 of the European Parliament and of the Council of 14 September 2022 on

contestable and fair markets in the digital sector and amending Directives (EU) 2019/1937 and (EU)

2020/1828 (Digital Markets Act, DMA) [2022] OJ L265/1.

401

Article 14 DMA. More precisely, that Article speaks of concentrations ‘where the merging entities or

the target of concentration provide core platform services or any other services in the digital sector or enable

the collection of data’.

402

Article 30 para 2 DMA.

403

Article 18 para 2 DMA.

404

Wooyoung Lee, ‘South Korea launches new study to come up with platform merger review guidelines’

MLex (15 March 2022)

<https://content.mlex.com/#/content/1365494?referrer=email_dailycontentset&dailyId=f986fa0ee8864bd

ba7c0d88f4b4892fc>.

Merger review in digital and technology markets: Insights from national case law

background of the European decisional practice, such as the one carried out in this

Report, may be a good starting point for further developing merger control in

Europe and beyond in order to enable it to fully capture the anti-competitive

effects that certain digital mergers are capable of producing.

Merger review in digital and technology markets: Insights from national case law

References

‘Cisco-Acacia merger receives antitrust approval in US, still needs OK in Germany and

China’ MLex (27 September 2019)

<https://content.mlex.com/#/content/1131563?referrer=portfolio_openrelatedcontent

‘Dante International, PC Garage merger gets conditional Romanian approval’ MLex (29

November 2016)

<https://content.mlex.com/#/content/846719?referrer=search_linkclick>.

‘Delivery Hero wins conditional approval for Greek acquisitions’ MLex (2 May 2022)

<https://content.mlex.com/#/content/1374846?referrer=email_dailycontentset&dailyI

d=137821cefd9e45fbb3e5c211a46cffb5>.

‘Prosus Statement: Lapse of the Offer for Just Eat plc By Prosus N.V. Through Its

Wholly-owned Indirect Subsidiary MIH Food Delivery Holdings B.V.’

Businesswire.com (10 January 2020)

https://www.businesswire.com/news/home/20200110005400/en/Prosus-Statement-

Lapse-of-the-Offer-for-Just-Eat-plc-By-Prosus-N.V.-Through-Its-Wholly-owned-

Indirect-Subsidiary-MIH-Food-Delivery-Holdings-B.V.

‘Sabre and Farelogix $360m merger deal cancelled’ (1 May 2020)

<https://www.phocuswire.com/sabre-farelogix-merger-terminated>.

‘Tobii divests Smartbox’ (6 October 2020) <https://www.tobii.com/group/news-

media/press-releases/2020/10/tobii-divests-smartbox/>.

Alcantara, Chris, Kevin Schaul, Gerrit De Vynck and Reed Albergotti, ‘How Big Tech

got so big: Hundreds of acquisitions’ Washington Post (21 April 2021)

<https://www.washingtonpost.com/technology/interactive/2021/amazon-apple-

facebook-google-acquisitions/>.

American Economic Liberties Project, ‘Big Tech Mergers’

<https://www.economicliberties.us/big-tech-merger-tracker/>.

Autoriteit Consument & Markt, ‘After follow-up investigation, ACM still conditionally

clears acquisition of Iddink Group by Sanoma Learning’ (27 August 2021)

<https://www.acm.nl/en/publications/after-follow-investigation-acm-still-

conditionally-clears-acquisition-iddink-group-sanoma-learning>.

Bourreau, Marc, ‘Some Economics of Digital Ecosystems’ (2020)

DAF/COMP/WD(2020)89.

Bourreau, Marc, and Alexandre de Streel, ‘Digital Conglomerates and EU Competition

Policy’ (CERRE Report, March 2019).

Bundeskartellamt, ‘Bundeskartellamt clears merger between eBay Classifieds Group and

Adevinta’ (24 November 2020)

<https://www.bundeskartellamt.de/SharedDocs/Publikation/EN/Pressemitteilungen/2

020/24_11_2020_ebay_Adevinta.pdf?__blob=publicationFile&v=5>.

Bundeskartellamt, ‘Bundeskartellamt clears acquisition of Kustomer by Meta (formerly

Facebook)’ Press Release (11 February 2022)

<https://www.bundeskartellamt.de/SharedDocs/Meldung/EN/Pressemitteilungen/202

2/11_02_2022_Meta_Kustomer.html>.

Merger review in digital and technology markets: Insights from national case law

Bundeswettbewerbsbehörde, ‘Meta (Facebook)/Giphy merger: AFCA appealing against

conditional clearance’ (4 March 2022) <https://www.bwb.gv.at/en/news/news-

2022/detail/meta-facebook-giphy-merger-afca-appealing-against-conditional-

clearance>.

Competition & Markets Authority, ‘Online Platforms and Digital Advertising Market’

Study (July 2020).

Competition & Markets Authority, ‘Merger investigation into the Completed acquisition

by PUG LLC (viagogo) of the StubHub business of eBay Inc.’ (8 September 2021)

<https://assets.publishing.service.gov.uk/media/61379adfe90e07044435c8d0/Viagog

o_StubHub_Case_closure_summary.pdf>.

Crémer, Jacques, Heike Schweitzer and Yves-Alexandre de Montjoye, Competition

Policy in the Digital Era (2019).

Cunningham, Colleen, Florian Ederer and Song Ma, ‘Killer Acquisitions’ (2021) 129

Journal of Political Economy 649.

de Silva, Isabelle, ‘Assessing online platform mergers: Taking up the new challenges

faced by the French Competition Authority in the digital economy’ (N° 2-2018)

Concurrences 39.

Dinu, Raluca, ‘Romania’ in Daniel Mândrescu (ed), EU Competition Law and the Digital

Economy: Protecting Free and Fair Competition in an Age of Technological

(R)Evolution (XXIX FIDE Congress 2020) 451.

Eisenmann, Thomas, Geoffrey Parker and Marshall Van Alstyne, ‘Platform

Envelopment’ (2011) 32 Strategic Management Journal 1270.

European Commission, Evaluation of procedural and jurisdictional aspects of EU merger

control, SWD(2021) 66 final.

European Commission, ‘Mergers: Commission approves acquisition of Nuance by

Microsoft’ IP/21/7067 (21 December 2021).

European Commission, ‘Mergers: Commission clears acquisition of Kustomer by Meta

(formerly Facebook), subject to conditions’ IP/22/652 (27 January 2022).

European Commission, ‘Antitrust: Commission confirms unannounced inspections in the

online food delivery sector’ IP/22/4345 (6 July 2022).

Faria, Tânia Luísa, ‘Portugal’ in Daniel Mândrescu (ed), EU Competition Law and the

Digital Economy: Protecting Free and Fair Competition in an Age of Technological

(R)Evolution (XXIX FIDE Congress 2020) 431.

Federal Trade Commission, ‘Non-HSR Reported Acquisitions by Select Technology

Platforms, 2010-2019: An FTC Study’ (September 2021)

<https://www.ftc.gov/system/files/documents/reports/non-hsr-reported-acquisitions-

select-technology-platforms-2010-2019-ftc-

study/p201201technologyplatformstudy2021.pdf>.

Fletcher, Amelia, ‘Digital Competition Policy: Are Ecosystems Different?’ (2020)

DAF/COMP/WD(2020)96.

Forsberg, Peter, Xandra Carlsson and Sebastian Wiik, ‘Sweden, Overview of merger

control activity during the last 12 months’ in Nigel Parr and Catherine Hammon (eds),

Merger Control (5th edn, 2016) 191.

Merger review in digital and technology markets: Insights from national case law

Furman, Jason, et al., Unlocking Digital Competition – Report of the Digital Competition

Expert Panel (2019)

<https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attach

ment_data/file/785547/unlocking_digital_competition_furman_review_web.pdf>.

García García, José Marino, and Pablo Ibáñez Colomo, ‘Spain’ in Daniel Mândrescu (ed),

EU Competition Law and the Digital Economy: Protecting Free and Fair Competition

in an Age of Technological (R)Evolution (XXIX FIDE Congress 2020) 499.

Gazdasági Versenyhivatal, ‘The Hungarian Competition Authority authorised the

acquisition of Extreme Digital by eMAG’ (17 October 2019)

<https://www.gvh.hu/en/press_room/press_releases/press_releases_2019/the_hungari

an_competition_authority_authorised_the>.

Gazdasági Versenyhivatal, ‘The GVH authorised the merger of Netrisk and Biztosítás.hu’

(12 December 2019)

<https://www.gvh.hu/en/press_room/press_releases/press_releases_2019/the-gvh-

authorised-the-merger-of-netrisk-and-biztositas.hu>.

Hovenkamp, Herbert, ‘Competitive Harm from Vertical Mergers’ (2021) 59 The

Industrial Organization Society 139.

Ibitoye, Victoria, ‘UK scraps tougher Big Tech merger-review standard, stays quiet on

law to back digital regulator’ MLex (6 May 2022)

<https://content.mlex.com/#/content/1376156?referrer=email_dailycontentset&dailyI

d=ecdc6c88629a4326bbe6bfbb614c0e59>.

Ibitoye, Victoria, ‘Meta scores procedural win in appeal of UK Giphy selloff order, but

impact remains to be seen’ MLex (14 June 2022)

<https://content.mlex.com/#/content/1385154?referrer=portfolio_openrelatedcontent

Jacobides, Michael G., and Ioannis Lianos, ‘Ecosystems and Competition Law in Theory

and Practice’ (2021) 30 Industrial and Corporate Change 1199.

Kang, Cecilia, and David McCabe, ‘F.T.C. Broadens Review of Tech Giants, Homing In

on Their Deals’ New York Times (11 February 2020).

Kindl, Jiří, and Michal Petr, ‘Czech Republic’ in Daniel Mândrescu (ed), EU Competition

Law and the Digital Economy: Protecting Free and Fair Competition in an Age of

Technological (R)Evolution (XXIX FIDE Congress 2020) 165.

Lear, ‘Ex-post Assessment of Merger Control Decisions in Digital Markets’ (9 May

2019).

Lécuyer, Tristan, ‘Digital Conglomerates and Killer Acquisitions – A Discussion of the

Competitive Effects of Start-Up Acquisitions by Digital Platforms’ (N° 1-2020)

Concurrences 42.

Lim, Yong, ‘Tech Wars: Return of the Conglomerate – Throwback or Dawn of a New

Series for Competition in the Digital Era?’ (2020) 19 Journal of Korean Law 47, 48.

Lombardi, Pietro, and Samuel Stolton, ‘Microsoft heads for second big EU showdown —

this time over gaming’ Politico (24 January 2022)

<https://www.politico.eu/article/microsoft-activision-eu-showdown-video-game/>.

Merger review in digital and technology markets: Insights from national case law

Lundqvist, Björn, ‘Sweden’ in Daniel Mândrescu (ed), EU Competition Law and the

Digital Economy: Protecting Free and Fair Competition in an Age of Technological

(R)Evolution (XXIX FIDE Congress 2020) 517.

Macintyre, Everette, ‘Statement on Conglomerate Mergers and Antitrust Laws’ (2

December 1966)

<https://www.ftc.gov/system/files/documents/public_statements/683731/19661202_

macintyre_conglomerate_mergers_and_antitrust_laws.pdf>.

Magister, <https://www.magister.nl/>.

Mândrescu, Daniel (ed), EU Competition Law and the Digital Economy: Protecting Free

and Fair Competition in an Age of Technological (R)Evolution (XXIX FIDE Congress

2020).

McCabe, David, and Jim Tankersley, ‘Biden Urges More Scrutiny of Big Business, Such

as Tech Giants’ New York Times (16 September 2021).

Newton, Casey, and Nilay Patel, ‘“Instagram can hurt us”: Mark Zuckerberg Emails

Outline Plan to Neutralize Competitors’ The Verge (29 July 2020)

<https://www.theverge.com/2020/7/29/21345723/facebook-instagram-documents-

emails-mark-zuckerberg-kevin-systrom-hearing>.

Oberster Gerichtshof, ‘Bestätigung der kartellrechtlichen Nicht-Untersagung eines

Zusammenschlusses unter Auflagen’ (24 June 2022)

<https://www.ogh.gv.at/entscheidungen/entscheidungen-ogh/bestaetigung-der-

kartellrechtlichen-nicht-untersagung-eines-zusammenschlusses-von-m-und-g-unter-

auflagenv/>.

Petropoulos, Georgios, ‘Competition Economics of Digital Ecosystems’ (2020)

DAF/COMP/WD(2020)91.

Robertson, Viktoria H.S.E., ‘Antitrust Law and Digital Markets’ in Heinz D. Kurz,

Marlies Schütz, Rita Strohmaier and Stella S. Zilian (eds), The Routledge Handbook

of Smart Technologies: An Economic and Social Perspective (2022) 432.

Robertson, Viktoria H.S.E., ‘Antitrust Market Definition for Digital Ecosystems’ (N°2-

2021) Concurrences 3.

Robertson, Viktoria H.S.E., Competition Law’s Innovation Factor: The Relevant Market

in Dynamic Contexts in the EU and the US (Hart 2020).

Schmalensee, Richard, ‘Entry Deterrence in the Ready-to-Eat Breakfast Cereal Industry’

(1978) 9 Bell Journal of Economics 305.

Secretary of State for Digital, Culture, Media & Sport and Secretary of State for Business,

Energy and Industrial Strategy, ‘A new pro-competition regime for digital markets’

(CP 489, July 2021)

<https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attach

ment_data/file/1003913/Digital_Competition_Consultation_v2.pdf>.

Sherman Alex, and Lauren Feiner, ‘Amazon, Microsoft and Alphabet went on a buying

spree in 2021 despite D.C.’s vow to take on Big Tech’ (22 January 2022) CNBC

<https://www.cnbc.com/2022/01/22/amazon-microsoft-alphabet-set-more-deals-in-

2021-than-last-10-years.html>.

Stacey, Kiran, James Fontanella-Khan and Stefania Palma, ‘Big tech companies snap up

smaller rivals at record pace’ Financial Times (19 September 2021).

Merger review in digital and technology markets: Insights from national case law

Stylianou, Konstantinos, ‘Exclusion in Digital Markets’ (2018) 24 Michigan

Telecommunications & Technology Law Review 181.

Subramaniam, Mohan, et al., ‘Competing in Digital Ecosystems’ (2019) 62 Business

Horizons 83.

Sweden, ‘Agency decision-making in merger cases: from a prohibition decision to a

conditional clearance’ (3 November 2016) DAF/COMP/WP3/WD(2016)70.

Sweden, ‘Annual Report on Competition Policy Developments in Sweden’ (9 June 2017)

DAF/COMP/AR(2017)16.

Vestager, Margrethe, ‘Competition in a Big Data World’ (Munich, 17 January 2016).

Vestager, Margrethe, ‘Shaping Competition Policy in the Era of Digitisation’ (Brussels,

17 January 2019).

Wakabayashi, Daisuke, and Jack Nicas, ‘Apple, Google and a Deal That Controls the

Internet’ New York Times (25 October 2020).

Waters, Richard, and Leo Lewis, ‘Why gaming is the new Big Tech battleground’

Financial Times (21 January 2022).

Witt, Anne C., ‘Who’s Afraid of Conglomerate Mergers’ (2022) 67 Antitrust Bulletin

208.

Merger review in digital and technology markets: Insights from national case law

Table of legislation and soft law documents

European Union legislation

Consolidated Version of the Treaty on the Functioning of the European Union [2016] OJ

C202/47 (TFEU).

Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the

rules on competition laid down in Articles 81 and 82 of the Treaty [2003] OJ L1/1.

Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of

concentrations between undertakings (EUMR) [2004] OJ L24/1.

Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April

2016 on the protection of natural persons with regard to the processing of personal

data and on the free movement of such data, and repealing Directive 95/46/EC

(General Data Protection Regulation, GDPR) [2016] OJ L119/1.

Regulation (EU) 2022/1925 of the European Parliament and of the Council of 14

September 2022 on contestable and fair markets in the digital sector and amending

Directives (EU) 2019/1937 and (EU) 2020/1828 (Digital Markets Act, DMA) [2022]

OJ L265/1.

National legislation

Act against Restraints of Competition, German Federal Law Gazette I 2013/1750 as

amended.

Cartel Act, Austrian Federal Law Gazette I 61/2005 as amended.

European Union soft law

EU Merger Working Group, ‘Best Practices on Cooperation between EU National

Competition Authorities in Merger Review’ (8 November 2011).

European Commission, Commission notice on remedies acceptable under Council

Regulation (EC) No 139/2004 and under Commission Regulation (EC) No 802/2004

[2008] OJ C267/1.

European Commission, Guidelines on the assessment of horizontal mergers under the

Council Regulation on the control of concentrations between undertakings (Horizontal

Merger Guidelines 2004) [2004] OJ C31/5.

European Commission, Guidelines on the assessment of non-horizontal mergers under

the Council Regulation on the control of concentrations between undertakings (Non-

horizontal Merger Guidelines 2008) [2008] OJ C265/6.

European Commission, Commission Guidance on the application of the referral

mechanism set out in Article 22 of the Merger Regulation to certain categories of cases

[2021] OJ C113/1.

Merger review in digital and technology markets: Insights from national case law

100

National soft law

Bundeswettbewerbsbehörde and Bundeskartellamt, Leitfaden Transaktionswert-

Schwellen fr die Anmeldepflicht von Zusammenschlussvorhaben (§ 35 Abs. 1a GWB

und § 9 Abs. 4 KartG) (January 2022).

Competition & Markets Authority, Merger Assessment Guidelines (CMA129, 18 March

2021).

US Department of Justice, Merger Guidelines (1968).

US Department of Justice and Federal Trade Commission, Horizontal Merger Guidelines

(19 August 2010).

US Department of Justice and Federal Trade Commission, Vertical Merger Guidelines

(30 June 2020).

Merger review in digital and technology markets: Insights from national case law

101

Table of cases

Australia

Australian Competition & Consumer Commission, Meta/Kustomer (18 November 2021).

Australian Competition and Consumer Commission, Turnitin/Ouriginal Group (25

November 2021).

Austria

Kartellobergericht, 23 June 2022, 16 Ok 3/22k and 16 Ok 4/22g – Meta/Giphy.

Kartellgericht, 22 April 2021, 27 Kt 9/21g – Tableau/Salesforce.

Kartellgericht, 22 July 2021, 28 Kt 6/21y – Facebook/Giphy.

Kartellgericht, 7 February 2022, 28 Kt 8/21t and 28 Kt 9/21i – Meta/Giphy.

Bundeswettbewerbsbehörde, Cisco Systems/Acacia Communications (BWB/Z-4545, 3

September 2019).

Bundeswettbewerbsbehörde, CTS Eventim/Barracuda Holding (BWB/Z-4651, 3

December 2019).

Bundeswettbewerbsbehörde, eBay/Adevinta (BWB/Z-5141, Z-5142, Z-5420 and Z-5421,

18 June 2021).

Bulgaria

Комисия за защита на конкуренцията, Net Info/Credit Garant (818/11.10.2016, 11

October 2016).

Комисия за защита на конкуренцията, Ozone Entertainment/Pulsar (906/01.08.2019,

1 August 2019).

Комисия за защита на конкуренцията, Flutter Entertainment/Stars Group

(269/16.04.2020, 16 April 2020).

China

State Administration for Market Regulation, Cisco Systems/Acacia Communications (14

January 2021).

State Administration for Market Regulation, Advanced Micro Devices/Xilinx (27 January

2022).

Cyprus

Επιτροπής Προστασίας Ανταγωνισμού, CVC Capital Partners/Skroutz Internet Services

(23/2020, 12 June 2020).

Επιτροπής Προστασίας Ανταγωνισμού, Tencent/1C Entertainment (58/2021, 1

September 2021).

Czechia

Úřad pro ochranu hospodářské soutěže, Rockaway Capital/Heureka (ÚOHS-

S0013/2016/KS-21123/2016/840/DVá, 16 May 2016).

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102

Úřad pro ochranu hospodářské soutěže, Rockaway Capital/Sully System/Netretail

(ÚOHS-S0223/2016/KS-26867/2016/840/DVá, 27 June 2016).

Estonia

Konkurentsiamet, Tulika Takso and AS Tallink Takso/Taxofon Eesti OÜ (5.1-5/16-006,

26 February 2016).

Konkurentsiamet, auto24/Meediamootor OÜ (5-5/2017-031, 30 May 2017).

Konkurentsiamet, AS Eesti Meedia/OÜ Patsiendiportaal (5-5/2017-035, 8 June 2017).

Konkurentsiamet, Media Investments & Holding/AllePal (5-5/2019-070, 20 December

2019).

European Union

Case C-252/21, Meta Platforms/Bundeskartellamt [2021] OJ C320/16 (pending).

Case C-449/21, Towercast v Autorité de la concurrence [2021] OJ C452/9 (pending).

Case C-48/22 P, Google and Alphabet/Commission (Google Shopping) [2022] OJ

C191/10 (pending).

Case T-79/12 Cisco Systems and Messagenet v Commission, ECLI:EU:T:2013:635.

Case T-612/17, Google and Alphabet/Commission (Google Shopping),

ECLI:EU:T:2021:763

European Commission Decision of 11 March 2008, COMP/M.4731 –

Google/DoubleClick.

European Commission Decision of 18 February 2010, COMP/M.5727 –

Microsoft/Yahoo! Search Business.

European Commission Decision of 7 October 2011, COMP/M.6281 – Microsoft/Skype.

European Commission Decision of 10 February 2012, COMP/M.6474 –

GE/Microsoft/JV.

European Commission Decision of 13 February 2012, COMP/M.6381 –

Google/Motorola Mobility.

European Commission Decision of 4 December 2012, COMP/M.7047 – Microsoft/Nokia.

European Commission Decision of 25 July 2014, COMP/M.7290 – Apple/Beats.

European Commission Decision of 3 October 2014, COMP/M.7217 –

Facebook/WhatsApp.

European Commission Decision of 3 October 2014, COMP/M.7217 –

Facebook/WhatsApp.

European Commission Decision of 14 October 2015, M.7688 – Intel/Altera.

European Commission Decision of 23 November 2015, M.7686 – Avago/Broadcom.

European Commission Decision of 23 February 2016, M.7813 – Sanofi/Google/DMI JV.

European Commission Decision of 6 December 2016, M.8124 – Microsoft/LinkedIn.

European Commission Decision of 12 May 2017, M.8314 – Broadcom/Brocade.

European Commission Decision of 27 June 2017, AT.39740 – Google Search (Shopping).

European Commission Decision of 6 September 2018, M.8788 – Apple/Shazam.

European Commission Decision of 18 January 2018, M.8306 – Qualcomm/NXP

Semiconductors.

Merger review in digital and technology markets: Insights from national case law

103

European Commission Decision of 12 October 2018, M.9054 – Broadcom/CA.

European Commission Decision of 19 October 2018, M.8994 – Microsoft/GitHub.

European Commission Decision of 30 October 2019, M.9538 – Broadcom/Symantec

Enterprise Security Business.

European Commission Decision of 17 December 2020, M.9660 – Google/Fitbit.

European Commission Decision of 5 March 2021, M.10001 – Microsoft/ZeniMax.

European Commission Decision of 20 May 2021, M.10059 – SK Hynix/Intel’s NAND and

SSD Business.

European Commission Decision of 30 June 2021, COMP/M.10097 – Advanced Micro

Devices/Xilinx.

European Commission Decision of 21 December 2021, M.10290 – Microsoft/Nuance.

European Commission Decision of 27 January 2022, M.10262 – Meta/Kustomer.

European Commission Decision of 15 March 2022, M.10349 – Amazon/MGM.

France

Autorité de la concurrence, Rakuten/Alpha Direct Services (13-DCC-08, 16 January

2013).

Autorité de la concurrence, Crédit Mutuel Arkéa/Primonial Management/Blackfin/

Latour Capital/Primonial Holding (15-DCC-105, 12 August 2015).

Autorité de la concurrence, Fnac/Darty (16-DCC-111, 27 July 2016).

Autorité de la concurrence, Axel Springer/Concept Multimédia (18-DCC-18, 1 February

2018).

Autorité de la concurrence, TF1/Aufeminin (18-DCC-63, 23 April 2018).

Germany

Bundesgerichtshof, 12 January 2021, KVR 34/20 – CTS Eventim/Four Artists.

Bundesgerichtshof, 24 March 2020, KVZ 3/19 – CTS Eventim/Four Artists.

Oberlandesgericht Düsseldorf, 5 December 2018, Kart 3/18 (V) – CTS Eventim/Four

Artists.

Bundeskartellamt, Axel Springer/Immowelt (B6-39/15, 20 April 2015).

Bundeskartellamt, ProSiebenSat.1/Verivox (B8-76/15, 24 July 2015).

Bundeskartellamt, OCPE II Master (Parship)/EliteMedianet (B6-57/15, 22 October

2015).

Bundeskartellamt, CTS Eventim/FKP Scorpio (B6-53/16, 3 January 2017).

Bundeskartellamt, CTS Eventim/Four Artists (B6-35/17, 23 November 2017).

Bundeskartellamt, Facebook (B6-22/16, 6 February 2019).

Bundeskartellamt, PayPal/Honey Science (B6-86/19, 17 December 2019).

Bundeskartellamt, Cisco Systems/Acacia Communications (B7-205/19, 6 February

2020).

Bundeskartellamt, Parship and ElitePartner/Lovoo (B6-29/20, 6 July 2020).

Bundeskartellamt, Adevinta/eBay Classifieds Group (B6-41/20, 23 November 2020).

Bundeskartellamt, Meta/Kustomer (B6-37/21, 9 December 2021).

Bundeskartellamt, Meta/Kustomer (B6-21/22, 11 February 2022).

Merger review in digital and technology markets: Insights from national case law

104

Greece

Επιτροπή Ανταγωνισμού, OPAP/DeepInvestments/Padian/GML Interactive (693/2019,

17 October 2019).

Επιτροπή Ανταγωνισμού, Saiga/Skroutz (714/2020, 24 June 2020).

Επιτροπή Ανταγωνισμού, OPAP/Kaizen Gaming Internaional (725/2021, 1 March

2021).

Επιτροπή Ανταγωνισμού, Delivery Hero/Alfa Distributions/Inkat/Delivery.gr/E-table

(775/2022, 18 April 2022).

Hungary

Kúria, Magyar RTL Televízió/Central Digitális Média (Kf.IV.38.095/2018/10, 9

December 2019).

Fővárosi Törvényszék, Magyar RTL Televízió/Central Digitális Média

(21.K.700.023/2018/12, 8 June 2018).

Gazdasági Versenyhivatal, Magyar RTL Televízió/Central Digitális Média (VJ/87/2016,

24 January 2017).

Gazdasági Versenyhivatal, Renesas Electronics Corporation/Integrated Device

Technology (VJ/35-10/2018, 14 November 2018).

Gazdasági Versenyhivatal, Netrisk.hu/Biztosítás.hu (VJ/12/2019, 12 December 2019).

Gazdasági Versenyhivatal, eMAG/Extreme Digital (VJ/14/2019, 17 October 2019).

Ireland

Competition and Consumer Protection Commission, Paddy Power/Betfair (M/15/059, 15

January 2016).

Competition and Consumer Protection Commission, Ladbrokes/Gala Coral (M/16/007,

10 March 2016).

Competition and Consumer Protection Commission, Stars Group/Sky Betting & Gaming

(M/18/038, 18 June 2018).

Competition and Consumer Protection Commission, EQT Fund Management/SUSE

(M/18/066, 18 September 2018).

Competition and Consumer Protection Commission, Applied Materials/Kokusai Electric

Corporation (M/19/027, 11 October 2019).

Competition and Consumer Protection Commission, BoyleSports/GT Retail (M/19/032,

14 February 2020).

Competition and Consumer Protection Commission, Flutter Entertainment/Stars Group

(M/20/001, 12 May 2020).

Competition and Consumer Protection Commission, Booster/Liftoff Mobile (M/21/002,

15 February 2021).

Merger review in digital and technology markets: Insights from national case law

105

Italy

Autoritá Garante della Concorrenza e del Mercato, OEP 14 Coöperatief/Techedge

(28331, 4 August 2020).

Malta

Malta Competition and Consumer Affairs Authority, GVC Holdings/Ladbrokes Coral

Group (COMP-MCCAA/4/18, 21 March 2018).

Malta Competition and Consumer Affairs Authority, Flutter Entertainment/Stars Group

(COMP-MCCAA/03/2020, 18 February 2020).

Netherlands

College van Beroep voor het Bedrijfsleven, Sanoma/Iddink (21/467, 21/468 & 21/469,

12 July 2022), ECLI:NL:CBB:2022:411.

Rechtbank Rotterdam, Sanoma/Iddink (ROT 19/5120, 4 March 2020),

ECLI:NL:RBROT:2021:1766.

Autoriteit Consument & Markt, Sanoma/Iddink (ACM/19/035555, 28 August 2019).

Autoriteit Consument & Markt, DPG/Sanoma (ACM/19/038207, 10 April 2020).

Autoriteit Consument & Markt, NS Groep/Pon Netherlands (ACM/20/038614, 20 May

2020).

Poland

Urząd Ochrony Konkurencji i Konsumentów, 1&1 Internet/Home.pl (DKK-216/2015, 22

December 2015).

Portugal

Autoridade da Concorrência, KKR/Cabolink (Ccent. 41/2018, 8 November 2018).

Autoridade da Concorrência, Sonae/CTT - Correios de Portugal JV (Ccent. 27/2018, 19

July 2018).

Autoridade da Concorrência, Siris/Travelport (Ccent. 1/2019, 7 February 2019).

Autoridade da Concorrência, Claranet Portugal/Bizdirect (Ccent. 27/2021, 25 June

2021).

Autoridade da Concorrência, Claranet Portugal/OutScope Solutions (Ccent. 38/2021, 24

August 2021).

Autoridade da Concorrência, Delivery Hero/Glovo (Ccent. 61/2021, 25 January 2022).

Romania

România Consiliul Concurenței, Dante International/PC Garage (84/24.11.2016, 24

November 2016).

România Consiliul Concurenței, Glovoappro/Foodpanda (86/22.11.2021, 22 November

2021).

Merger review in digital and technology markets: Insights from national case law

106

Singapore

Competition and Consumer Commission of Singapore, Advanced Micro Devices/Xilinx

(400/140/2021/003, 30 August 2021).

Slovenia

Javna agencija Republike Slovenije za varstvo konkurence, Sully System/CENEJE (3061-

27/2017-71, 12 April 2018).

Javna agencija Republike Slovenije za varstvo konkurence, ECE/ELTUS PLUS (3061-

41/2018, 25 April 2019).

Javna agencija Republike Slovenije za varstvo konkurence, Shoppster/IDEO PLUS

(3061-9/2020-14, 24 April 2020).

Javna agencija Republike Slovenije za varstvo konkurence, Allegro.eu/MIMOVRSTE

(3061-25/2021-6, 24 January 2022).

Spain

Comisión Nacional de los Mercados y la Competencia, Schibsted/Milanuncios

(C/0573/14, 20 November 2014).

Comisión Nacional de los Mercados y la Competencia, Just Eat/La Nevera Roja

(C/0730/16, 31 March 2016).

Comisión Nacional de los Mercados y la Competencia, Daimler/Hailo/MyTaxi/Negocio

Hailo (C/0802/16, 24 November 2016).

Comisión Nacional de los Mercados y la Competencia, Just Eat Spain/Canary Delivery

Company (C/1046/19, 10 September 2019).

Comisión Nacional de los Mercados y la Competencia, MIH Food Delivery Holdings/Just

Eat (C/1072/19, 5 December 2019).

Comisión Nacional de los Mercados y la Competencia, Flutter Entertainment/Stars

Group (C/1094/20, 12 March 2020).

Comisión Nacional de los Mercados y la Competencia, Turnitin/Ouriginal Group

(C/1220/21, 19 October 2021).

Comisión Nacional de los Mercados y la Competencia, Delivery Hero/Glovo (C/1260/21,

23 February 2022).

Sweden

Stockholms tingsrätt, Swedbank Franchise/Svensk Fastighetsförmedling (T 3629-14, 16

December 2014).

Konkurrensverket, Blocket/Hemnet (84/2016, 2016).

United Kingdom

Meta/Giphy, [2022] CAT 26, 14 June 2022.

Sabre/Farelogix, [2021] CAT 11, 21 May 2021.

Tobii/Smartbox, [2020] CAT 1, 10 January 2020.

Tobii/Smartbox, [2020] CAT 6, 17 February 2020.

Merger review in digital and technology markets: Insights from national case law

107

Office of Fair Trading, Google/BeatThatQuote (ME/4912/11, 1 July 2011).

Office of Fair Trading, Facebook/Instagram (ME/5525/12, 14 August 2012).

Office of Fair Trading, Web Reservations/Hostelbookers.com (ME/6062/13, 2 August

2013).

Competition & Markets Authority, esure Group/Gocompare.com (ME/6495-14, 23

February 2015).

Competition & Markets Authority, Ticketmaster/Seatwave/Timbre (ME/6505-14, 26

March 2015).

Competition & Markets Authority, Financière Richmond/Net-A-Porter (ME/6538-15, 2

September 2015).

Competition & Markets Authority, CliniSys Group/Roper Technologies (ME/6564/15, 11

December 2015).

Competition & Markets Authority, Betfair Group/Paddy Power (ME/6572/15, 17

December 2015).

Competition & Markets Authority, Mapil Bidco/Chain Reaction Cycles/Decade

(ME/6569/16, 30 June 2016).

Competition & Markets Authority, Ladbrokes/Gala Coral (ME/6556-15-II, 26 July

2016).

Competition & Markets Authority, ZPG/Websky (ME/6690/17, 29 June 2017).

Competition & Markets Authority, Blackbaud/Giving (ME/6700/17, 8 September 2017).

Competition & Markets Authority, Just Eat/Hungryhouse (ME/6659-16-II, 16 November

2017).

Competition & Markets Authority, Moneysupermarket.com/Decision Technologies

(ME/6749/18, 7 August 2018).

Competition & Markets Authority, eBay/Motors.co.uk (ME/6774/18, 12 February 2019).

Competition & Markets Authority, PayPal/iZettle (ME/6766/18-II, 12 June 2019).

Competition & Markets Authority, Salesforce.com/Tableau Software (ME/6841/19, 22

November 2019).

Competition & Markets Authority, Tobii/Smartbox (ME/6780/18-II, 15 August 2019).

Competition & Markets Authority, Google/Looker (ME/6839/19, 13 February 2020).

Competition & Markets Authority, Flutter Entertainment/Stars Group (ME/6865/19, 31

March 2020).

Competition & Markets Authority, Sabre/Farelogix (ME/6806/19-II, 9 April 2020).

Competition & Markets Authority, Amazon/Roofoods (ME/6836/19-II, 4 August 2020).

Competition & Markets Authority, Pug/StubHub (ME/6868/19-II, 2 February 2021).

Competition & Markets Authority, Adevinta/eBay Classifieds Group (ME/6897/20, 16

February 2021).

Competition & Markets Authority, Uber International/GPC Computer Software

(ME/6903/20, 29 March 2021).

Competition & Markets Authority, SK hynix/Intel (ME/6913/20, 28 June 2021).

Competition & Markets Authority, Advanced Micro Devices/Xilinx (ME/6915/20, 29

June 2021).

Competition & Markets Authority, Turnitin/Ouriginal (ME/6931/21, 26 July 2021).

Competition & Markets Authority, Meta/Kustomer (ME/6920/20, 27 September 2021).

Merger review in digital and technology markets: Insights from national case law

108

Competition & Markets Authority, Auction Technology Group/Live Auctioneers

(ME/6942/21, 29 September 2021).

Competition & Markets Authority, Decision to impose a penalty on Facebook, Inc.,

Tabby Acquisition Sub Inc., and Facebook UK Limited under section 94A of the

Enterprise Act 2002 (20 October 2021).

Competition & Markets Authority, Meta/Giphy (ME/6891/20-II, 6 December 2021).

Competition & Markets Authority, Decision to impose a penalty on Meta Platforms, Inc.,

Tabby Acquisition Sub Inc., and Facebook UK Limited under section 94A of the

Enterprise Act 2002 (4 February 2022).

Competition & Markets Authority, Microsoft/Nuance (ME/6940/21, 2 March 2022).

United States

Ohio v American Express, 138 S. Ct. 2274, 2285.

US v Sabre/Farelogix, 452 F. Supp. 3d 97 (D. Del. 2020).

US v Google, US District Court for the District of Columbia, Case 1:20-cv-03010

(complaint brought on 20 October 2020, amended on 15 January 2021).

Federal Trade Commission v Facebook, US District Court for the District of Columbia,

Case 1:20-cv-3590 (11 January 2022).

Federal Trade Commission, Statement Concerning Google/DoubleClick, FTC File No.

071-0170 (11 December 2007).

Merger review in digital and technology markets: Insights from national case law

109

List of figures

1. Quantitative insights: Outcome of 97 national merger cases ..................................... 28

2. Quantitative insights: Distribution by country of 69 selected national merger cases 29

3. Quantitative insights: Combinations of theories of harm in 69 selected national

merger cases ............................................................................................................... 30

4. Quantitative insights: Distribution of horizontal theories of harm in 69 selected

national merger cases ................................................................................................. 31

5. Quantitative insights: Distribution of vertical theories of harm in 69 selected

national merger cases ................................................................................................. 32

Robertson, Merger review in digital and technology markets: Insights from national case law

110

Annex I: 97 national cases on digital and technology mergers, coded by outcome

Outcome

running number of the case summaries

provided in Annex III. Where an ID is

assigned, the national decision was also

coded based on the theories of harm

employed (see Annex II).

UCPH1

Unconditional clearance phase 1

UCPH2

Unconditional clearance phase 2

CCPH1

Conditional clearance phase 1

CCPH2

Conditional clearance phase 2

PROH

Prohibition

WITH

Withdrawal

NONAPP

Non-applicability

Country

Decisional body

Date

Case name

Case number

Outcome

Bundeswettbewerbsbehörde

03.12.2019

CTS Eventim/Barracuda Holding

BWB/Z-4651

CCPH1

Bundeswettbewerbsbehörde

18.06.2021

eBay/Adevinta

BWB/Z-5141, Z-

5142, Z-5420 and

Z-5421

CCPH1

Kartellgericht

07.02.2022

Meta/Giphy

28 Kt 8/21t and 28

Kt 9/21i

CCPH2

Комисия за защита на

конкуренцията

11.10.2016

Net Info/Credit Garant

818/11.10.2016

UCPH1

Комисия за защита на

конкуренцията

01.08.2019

Ozone Entertainment/Pulsar

906/01.08.2019

UCPH1

Επιτροπής Προστασίας

Ανταγωνισμού

12.06.2020

CVC Capital Partners/Skroutz Internet

Services

23/2020

UCPH1

Επιτροπής Προστασίας

Ανταγωνισμού

01.09.2021

Tencent/1C Entertainment

58/2021

UCPH1

Úřad pro ochranu hospodářské

soutěže

16.05.2016

Rockaway Capital/Heureka

ÚOHS-

S0013/2016/KS-

21123/2016/840/DVá

CCPH1

Robertson, Merger review in digital and technology markets: Insights from national case law

111

Country

Decisional body

Date

Case name

Case number

Outcome

Úřad pro ochranu hospodářské

soutěže

27.06.2016

Rockaway Capital/Sully System/Netretail

ÚOHS-

S0223/2016/KS-

26867/2016/840/DVá

UCPH1

Bundeskartellamt

20.04.2015

Axel Springer/Immowelt

B6-39/15

UCPH1

Bundeskartellamt

24.07.2015

ProSiebenSat.1/Verivox

B8-76/15

UCPH1

Bundeskartellamt

22.10.2015

OCPE II Master/EliteMedianet

B6-57/15

UCPH2

Bundeskartellamt

03.01.2017

CTS Eventim/FKP Scorpio

B6-53/16

UCPH2

Bundeskartellamt

23.11.2017

CTS Eventim/Four Artists

B6-35/17

PROH

Bundeskartellamt

17.12.2019

PayPal/Honey Science

B6-86/19

UCPH1

Bundeskartellamt

11.11.2019

Cisco Systems/Acacia Communications

B7-205/19

UCPH1

Bundeskartellamt

06.07.2020

Parship & Elite Partner/Lovoo

B6-29/20

UCPH1

Bundeskartellamt

23.11.2020

Adevinta/eBay Classifieds Group

B6-41/20

UCPH1

Bundeskartellamt

11.02.2022

Meta/Kustomer

B6-21/22

UCPH1

Konkurentsiamet

26.02.2016

Tulika Takso and AS Tallink Takso/Taxofon

Eesti OÜ

5.1-5/16-006

UCPH1

Konkurentsiamet

30.05.2017

auto24/Meediamootor OÜ

5-5/2017-031

UCPH1

Konkurentsiamet

08.06.2017

AS Eesti Meedia/OÜ Patsiendiportaal

5-5/2017-035

UCPH1

Konkurentsiamet

20.12.2019

Media Investments & Holding/AllePal

5-5/2019-070

UCPH1

Επιτροπή Ανταγωνισμού

17.10.2019

OPAP/DeepInvestments/Padian/GML

Interactive

693/2019

UCPH1

Επιτροπή Ανταγωνισμού

24.06.2020

Saiga/Skroutz

714/2020

UCPH1

Επιτροπή Ανταγωνισμού

01.03.2021

OPAP/Kaizen Gaming Internaional

725/2021

UCPH1

Επιτροπή Ανταγωνισμού

18.04.2022

Delivery Hero/Alfa

Distributions/Inkat/Delivery.gr/E-table

775/2022

CCPH2

Comisión Nacional de los

Mercados y la Competencia

20.11.2014

Schibsted/Milanuncios

C/0573/14

CCPH2

Comisión Nacional de los

Mercados y la Competencia

31.03.2016

Just Eat/La Nevera Roja

C/0730/16

CCPH1

Comisión Nacional de los

Mercados y la Competencia

24.11.2016

Daimler/Hailo/MyTaxi/Negocio Hailo

C/0802/16

UCPH1

Robertson, Merger review in digital and technology markets: Insights from national case law

112

Country

Decisional body

Date

Case name

Case number

Outcome

Comisión Nacional de los

Mercados y la Competencia

10.09.2019

Just Eat Spain/Canary Delivery Company

C/1046/19

UCPH1

Comisión Nacional de los

Mercados y la Competencia

05.12.2019

MIH Food Delivery Holdings/Just Eat

C/1072/19

CCPH1

Comisión Nacional de los

Mercados y la Competencia

19.10.2021

Turnitin/Ouriginal Group

C/1220/21

UCPH1

Comisión Nacional de los

Mercados y la Competencia

23.02.2022

Delivery Hero/Glovo

C/1260/21

UCPH1

Autorité de la concurrence

16.01.2013

Rakuten Europe/Alpha Direct Services

13-DCC-08

UCPH1

Autorité de la concurrence

12.08.2015

Crédit Mutuel Arkéa/Latour

Capital/BlackFin/Primonial

15-DCC-105

UCPH1

Autorité de la concurrence

01.02.2018

Axel Springer/Concept Multimédia

18-DCC-18

UCPH2

Autorité de la concurrence

23.04.2018

TF1/Aufeminin

18-DCC-63

UCPH1

Gazdasági Versenyhivatal

20.02.2017

Magyar RTL Televízió/Central Digitális

Média

Vj/87-198/2016

PROH

Gazdasági Versenyhivatal

14.11.2018

Renesas Electronics Corporation/Integrated

Device Technology

VJ/35-10/2018

UCPH1

Gazdasági Versenyhivatal

17.10.2019

eMAG/Extreme Digital

VJ/14/2019

UCPH2

Gazdasági Versenyhivatal

12.12.2019

Netrisk.hu/Biztosítás.hu

VJ/12/2019

UCPH2

Competition and Consumer

Protection Commission

15.01.2016

Paddy Power/Betfair

M/15/059

UCPH1

Competition and Consumer

Protection Commission

10.03.2016

Ladbrokes/Gala Coral

M/16/007

UCPH1

Competition and Consumer

Protection Commission

18.06.2018

Stars Group/Sky Betting & Gaming

M/18/038

UCPH1

Competition and Consumer

Protection Commission

18.09.2018

EQT Fund Management/SUSE

M/18/066

UCPH1

Competition and Consumer

Protection Commission

11.10.2019

Applied Materials/Kokusai Electric

Corporation

M/19/027

UCPH1

Competition and Consumer

Protection Commission

14.02.2020

BoyleSports/GT Retail

M/19/032

UCPH1

Robertson, Merger review in digital and technology markets: Insights from national case law

113

Country

Decisional body

Date

Case name

Case number

Outcome

Competition and Consumer

Protection Commission

11.05.2020

Flutter Entertainment/Stars Group

M/20/001

UCPH1

Competition and Consumer

Protection Commission

15.02.2021

Booster/Liftoff Mobile

M/21/002

UCPH1

Autoritá Garante della

Concorrenza e del Mercato

04.08.2020

OEP 14 Coöperatief/Techedge

28331

UCPH1

Malta Competition and Consumer

Affairs Authority

21.03.2018

GVC Holdings/Ladbrokes Coral Group

COMP-

MCCAA/4/18

UCPH1

Autoriteit Consument & Markt

28.08.2019

Sanoma/Iddink

ACM/19/034816

CCPH2

Autoriteit Consument & Markt

10.04.2020

DPG/Sanoma

ACM/19/038207

UCPH1

Autoriteit Consument & Markt

20.05.2020

NS Groep/Pon Netherlands

ACM/20/038614

CCPH1

Urząd Ochrony Konkurencji i

Konsumentów

22.12.2015

1&1 Internet/Home.pl

DKK-216/2015

UCPH2

Autoridade da Concorrência

19.07.2018

Sonae/CTT - Correios de Portugal JV

Ccent. 27/2018

UCPH1

Autoridade da Concorrência

08.11.2018

KKR/Cabolink

Ccent. 41/2018

UCPH1

Autoridade da Concorrência

07.02.2019

Siris/Travelport

Ccent. 1/2019

UCPH1

Autoridade da Concorrência

25.06.2021

Claranet Portugal/Bizdirect

Ccent. 27/2021

UCPH1

Autoridade da Concorrência

24.08.2021

Claranet Portugal/OutScope Solutions

Ccent. 38/2021

UCPH1

Autoridade da Concorrência

25.01.2022

Delivery Hero/Glovo

Ccent. 61/2021

NONAPP

România Consiliul Concurenței

24.11.2016

Dante International/PC Garage

84/24.11.2016

CCPH1

România Consiliul Concurenței

22.11.2021

Glovoappro/Foodpanda

86/22.11.2021

CCPH1

Javna agencija Republike

Slovenije za varstvo konkurence

12.04.2018

Sully System/CENEJE

3061-27/2017-71

CCPH1

Javna agencija Republike

Slovenije za varstvo konkurence

25.04.2019

ECE/ELTUS PLUS

3061-41/2018

UCPH1

Javna agencija Republike

Slovenije za varstvo konkurence

24.04.2020

Shoppster/IDEO PLUS

3061-9/2020-14

UCPH1

Javna agencija Republike

Slovenije za varstvo konkurence

24.01.2022

Allegro.eu/MIMOVRSTE

3061-25/2021-6

UCPH1

Stockholms tingsrätt

16.12.2014

Swedbank Franchise/Svensk

Fastighetsförmedling

T 3629-14

PROH

Robertson, Merger review in digital and technology markets: Insights from national case law

114

Country

Decisional body

Date

Case name

Case number

Outcome

Konkurrensverket

2016

Blocket/Hemnet

84/2016

WITHDR

Competition & Markets Authority

23.02.2015

esure Group/Gocompare.com

ME/6495-14

UCPH1

Competition & Markets Authority

26.03.2015

Ticketmaster/Seatwave/Timbre

ME/6505-14

UCPH1

Competition & Markets Authority

02.09.2015

Compagnie Financière Richemont/Net-A-

Porter

ME/6538-15

UCPH1

Competition & Markets Authority

11.12.2015

CliniSys Group/Roper Technologies

ME/6564/15

UCPH1

Competition & Markets Authority

17.12.2015

Betfair Group/Paddy Power

ME/6572/15

UCPH1

Competition & Markets Authority

30.06.2016

Mapil Bidco/Chain Reaction Cycles/Decade

ME/6569/16

UCPH1

Competition & Markets Authority

29.06.2017

ZPG/Websky

ME/6690/17

UCPH1

Competition & Markets Authority

08.09.2017

Blackbaud/Giving

ME/6700/17

UCPH1

Competition & Markets Authority

16.11.2017

Just Eat/Hungryhouse

ME/6659-16-II

UCPH2

Competition & Markets Authority

07.08.2018

Moneysupermarket.com/Decision

Technologies

ME/6749/18

UCPH1

Competition & Markets Authority

12.02.2019

eBay/Motors.co.uk

ME/6774/18

UCPH1

Competition & Markets Authority

12.06.2019

PayPal Holdings/iZettle

ME/6766/18-II

UCPH2

Competition & Markets Authority

22.11.2019

Salesforce/Tableau Software

ME/6841/19

UCPH1

Competition & Markets Authority

15.08.2019

Tobii/Smartbox

ME/6780/18-II

PROH

Competition & Markets Authority

13.02.2020

Google/Looker

ME/6839/19

UCPH1

Competition & Markets Authority

09.04.2020

Sabre/Farlogix

ME/6806/19-II

PROH

Competition & Markets Authority

04.08.2020

Amazon/Roofoods

ME/6836/19-II

UCPH2

Competition & Markets Authority

02.02.2021

Pug/StubHub

ME/6868/19-II

CCPH2

Competition & Markets Authority

16.02.2021

Adevinta/eBay Classifieds Group

ME/6897/20

CCPH1

Competition & Markets Authority

29.03.2021

Uber International/GPC Computer Software

ME/6903/20

UCPH1

Competition & Markets Authority

28.06.2021

SK hynix/Intel

ME/6913/20

UCPH1

Competition & Markets Authority

29.06.2021

Advanced Micro Devices/Xilinx

ME/6915/20

UCPH1

Competition & Markets Authority

26.07.2021

Turnitin/Ouriginal Group

ME/6931/21

UCPH1

Competition & Markets Authority

27.09.2021

Meta/Kustomer

ME/6920/20

UCPH1

Competition & Markets Authority

29.09.2021

Auction Technology Group/Live Auctioneers

ME/6942/21

UCPH1

Competition & Markets Authority

06.12.2021

Meta/Giphy

ME/6891/20-II

PROH

Competition & Markets Authority

02.03.2022

Microsoft/Nuance

ME/6940/21

UCPH1

Robertson, Merger review in digital and technology markets: Insights from national case law

115

Annex II: 69 particularly relevant national cases on digital and technology mergers, coded by theories

of harm

Outcome

Horizontal theories of harm

Vertical theories of harm

Unconditional clearance phase 1

HAC

Loss of an actual competitor

VIF

Input foreclosure

Unconditional clearance phase 2

HPC

Loss of a potential competitor

VCF

Customer foreclosure

Conditional clearance phase 1

HCOORD

Coordinated effects

VNONOTHR

Other non-coordinated effects

Conditional clearance phase 2

HOTHR

Other

VCOORD

Coordinated effects

Prohibition

Withdrawal

Conglomerate theories of harm

Remedies

CFOR

Foreclosure through linking sales

STR

Structural remedy

running number of the case

summaries provided in Annex

III

CCOORD

Coordinated effects

BEH

Behavioural remedy (other than

access)

COTHR

Other

ACC

Access remedy

No remedies

PROH

Concentration prohibited

Country

Date

Case name

Case number

Horizontal

Vertical

Conglomerate

Remedy

03.12.2019

CTS Eventim/Barracuda

Holding

BWB/Z-4651

VIF; VCF

ACC;

BEH

18.06.2021

eBay/Adevinta

BWB/Z-5141, Z-5142,

Z-5420 and Z-5421

HAC

STR

07.02.2022

Meta/Giphy

28 Kt 8/21t and 28 Kt

9/21i

HPC; HOTHR

VIF

ACC

16.05.2016

Rockaway

Capital/Heureka

ÚOHS-

S0013/2016/KS-

21123/2016/840/DVá

VNONOTHR

CFOR

BEH

Robertson, Merger review in digital and technology markets: Insights from national case law

116

Country

Date

Case name

Case number

Horizontal

Vertical

Conglomerate

Remedy

16.01.2013

Rakuten Europe/Alpha

Direct Services

13-DCC-08

VIF; VCF

12.08.2015

Crédit Mutuel Arkéa/

Latour

Capital/BlackFin/

Primonial

15-DCC-105

HAC

CFOR

01.02.2018

Axel Springer/Concept

Multimédia

18-DCC-18

HAC;

HCOORD

CFOR

23.04.2018

TF1/Aufeminin

18-DCC-63

HOTHR

CFOR

20.04.2015

Axel Springer/Immowelt

B6-39/15

HAC;

HCOORD

24.07.2015

ProSiebenSat.1/Verivox

B8-76/15

HCOORD

VIF

22.10.2015

OCPE II

Master/EliteMedianet

B6-57/15

HAC;

HCOORD;

HOTHR

03.01.2017

CTS Eventim/FKP

Scorpio

B6-53/16

HAC

VIF

23.11.2017

CTS Eventim/Four

Artists

B6-35/17

HAC

VCF

PROH

17.12.2019

PayPal/Honey Science

B6-86/19

VIF; VCF

CFOR

11.11.2019

Cisco Systems/Acacia

Communications

B7-205/19

HAC

VIF

11.02.2022

Meta/Kustomer

B6-21/22

HAC

COTHR

18.04.2022

Delivery Hero/Alfa

Distributions/Inkat/Deli

very.gr/E-table

775/2022

CFOR

BEH

20.02.2017

Magyar RTL

Televízió/Central

Digitális Média

VJ/87-198/2016

HOTHR

PROH

17.10.2019

eMAG/Extreme Digital

VJ/14/2019

HAC

12.12.2019

Netrisk.hu/Biztosítás.hu

VJ/12/2019

HAC

Robertson, Merger review in digital and technology markets: Insights from national case law

117

Country

Date

Case name

Case number

Horizontal

Vertical

Conglomerate

Remedy

15.01.2016

Paddy Power/Betfair

M/15/059

HAC

VIF

10.03.2016

Ladbrokes/Gala Coral

M/16/007

HAC

VIF

18.06.2018

Stars Group/Sky Betting

& Gaming

M/18/038

HAC

VIF; VCF

18.09.2018

EQT Fund

Management/SUSE

M/18/066

VIF; VCF

11.10.2019

Applied

Materials/Kokusai

Electric Corporation

M/19/027

HAC

11.05.2020

Flutter

Entertainment/Stars

Group

M/20/001

HAC

VIF

CFOR

15.02.2021

Booster/Liftoff Mobile

M/21/002

HAC

04.08.2020

OEP 14

Coöperatief/Techedge

28331

HAC

21.03.2018

GVC

Holdings/Ladbrokes

Coral Group

COMP-MCCAA/4/18

HAC

28.08.2019

Sanoma/Iddink

ACM/19/034816

VIF; VCF;

VNONOTHR

CFOR

ACC

10.04.2020

DPG/Sanoma

ACM/19/038207

HAC

VIF

CFOR

20.05.2020

NS Groep/Pon

Netherlands

ACM/20/038614

HAC

VIF; VCF

ACC

22.12.2015

1&1 Internet/Home.pl

DKK-216/2015

HAC

19.07.2018

Sonae/CTT - Correios

de Portugal JV

Ccent. 27/2018

VIF; VCF

24.11.2016

Dante International/PC

Garage

84/24.11.2016

HAC

STR

22.11.2021

Glovoappro/Foodpanda

86/22.11.2021

HAC

BEH

Robertson, Merger review in digital and technology markets: Insights from national case law

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Country

Date

Case name

Case number

Horizontal

Vertical

Conglomerate

Remedy

12.04.2018

Sully System/CENEJE

3061-27/2017-71

VIF;

VNONOTHR

BEH

25.04.2019

ECE/ELTUS PLUS

3061-41/2018

HAC

24.04.2020

Shoppster/IDEO PLUS

3061-9/2020-14

HAC

24.01.2022

Allegro.eu/MIMOVRST

3061-25/2021-6

HAC

20.11.2014

Schibsted/Milanuncios

C/0573/14

HAC

ACC

31.03.2016

Just Eat/La Nevera Roja

C/0730/16

HAC

BEH

24.11.2016

Daimler/Hailo/MyTaxi/

Negocio Hailo

C/0802/16

HAC

10.09.2019

Just Eat Spain/Canary

Delivery Company

C/1046/19

HAC

05.12.2019

MIH Food Delivery

Holdings/Just Eat

C/1072/19

HAC

BEH

19.10.2021

Turnitin/Ouriginal

Group

C/1220/21

HAC

VIF

16.12.2014

Swedbank

Franchise/Svensk

Fastighetsförmedling

T 3629-14

HAC

VIF

PROH

2016

Blocket/Hemnet

84/2016

HAC

WITHDR

17.12.2015

Betfair Group/Paddy

Power

ME/6572/15

HAC

VIF

29.06.2017

ZPG/Websky

ME/6690/17

HAC

VIF

08.09.2017

Blackbaud/Giving

ME/6700/17

HAC

CFOR

16.11.2017

Just Eat/Hungryhouse

ME/6659-16-II

HAC

07.08.2018

Moneysupermarket.com/

Decision Technologies

ME/6749/18

HAC

VIF

12.02.2019

eBay/Motors.co.uk

ME/6774/18

HAC

12.06.2019

PayPal Holdings/iZettle

ME/6766/18-II

HAC; HPC

Robertson, Merger review in digital and technology markets: Insights from national case law

119

Country

Date

Case name

Case number

Horizontal

Vertical

Conglomerate

Remedy

22.11.2019

Salesforce/Tableau

Software

ME/6841/19

HAC

CFOR

15.08.2019

Tobii/Smartbox

ME/6780/18-II

HAC

VIF; VCF

PROH

13.02.2020

Google/Looker

ME/6839/19

HAC

VIF

09.04.2020

Sabre/Farlogix

ME/6806/19-II

HAC

PROH

04.08.2020

Amazon/Roofoods

ME/6836/19-II

HPC

CFOR

02.02.2021

Pug/StubHub

ME/6868/19-II

HAC

STR

16.02.2021

Adevinta/eBay

Classifieds Group

ME/6897/20

HAC; HPC

STR

29.03.2021

Uber International/GPC

Computer Software

ME/6903/20

HPC

VIF;

VNONOTHR

28.06.2021

SK hynix/Intel

ME/6913/20

HAC

29.06.2021

Advanced Micro

Devices/Xilinx

ME/6915/20

CFOR

26.07.2021

Turnitin/Ouriginal

Group

ME/6931/21

HAC

27.09.2021

Meta/Kustomer

ME/6920/20

HOTHR

VIF; VCF

CFOR

29.09.2021

Auction Technology

Group/Live Auctioneers

ME/6942/21

HAC

CFOR

06.12.2021

Meta/Giphy

ME/6891/20-II

HPC

VIF

Robertson, Merger review in digital and technology markets: Insights from national case law

120

Annex III: Concise summaries of 69 national cases on digital

and technology mergers

Note: In order to provide some context, the summaries below briefly describe the market

upon which the national competition authority (NCA) relied, even where the NCA did

not provide a final delineation of the relevant market. The names of NCAs are provided

in the original language.

(1) Austria: CTS Eventim/Barracuda Holding (3 December 2019)

NCA: Bundeswettbewerbsbehörde

Case number: BWB/Z-4651

Concentration: CTS Eventim, a German provider of ticketing and live entertainment

with a strong market presence in Austria through oeticket, wanted to acquire 71% of

shares and sole control of Barracuda Holding, an Austrian provider of concerts.

Horizontal theories of harm: NA

Non-horizontal theories of harm: The authority was concerned that, post-merger, the

merged entity could engage in input foreclosure by making it harder for ticketing

providers to access organisers of live events. In addition, the authority was concerned that

the merged entity could engage in customer foreclosure by providing its ticketing services

at above market prices to companies that do not belong to the CTS Eventim group.

Outcome: Conditionally cleared in phase 1.

Remedies: In order to address the competition concerns raised by the authority in relation

to customer foreclosure, CTS Eventim committed that oeticket (i) would provide its

customers that wanted to use its ticketing services with non-discriminatory access to its

full range of services, including advertising contracts, and (ii) would not self-preference

in relation to the content and the way that events are promoted on the ticketing platform

oeticket.com (all for a duration of five years).

In order to address competition concerns related to vertical input foreclosure, oeticket

would (i) not require exclusivity from brick-and-mortar resellers, (ii) not require

exclusivity from customers of its JetTicket brand, and (iii) not impose exclusivity beyond

two years with white label ticketing platforms in Austria (all for a duration of five years).

Further commitments related to promoting local and national artists for a duration of five

years, and to ensuring there were festival passes for youth (up to 16 years) for festivals in

Austria.

Noteworthy: Acquisitions by CTS Eventim were also cleared by the German authority,

once subject to conditions.

(2) Austria: eBay/Adevinta (18 June 2021)

NCA: Bundeswettbewerbsbehörde

Case numbers: BWB/Z-5141, Z-5142, Z-5420 and Z-5421

Concentration: Adevinta wanted to acquire the eBay Classifieds Group (eCG) from

eBay, while eBay would acquire 33% of voting rights and 44% of the financial shares in

Robertson, Merger review in digital and technology markets: Insights from national case law

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Adevinta. Adevinta holds a 50% interest and exercises joint control over the leading

Austrian online classifieds portal willhaben.at. Until 6 February 2021, Adevinta was also

present in Austria through its online classifieds portal shpock.at.

Horizontal theories of harm: eBay’s online marketplace and willhaben.at were close

competitors on the Austrian market, particularly as regards online sales among consumers

(C2C transactions). This became apparent through market surveys and was also

confirmed by internal documents of the parties. The market was already concentrated,

and in the eyes of the authority the risk of non-coordinated effects was considerable.

Non-horizontal theories of harm: NA

Outcome: Conditionally cleared in phase 1.

Remedies: To address the authority’s competition concerns, the parties proposed the

following commitments: (i) in order to eliminate incentives for anti-competitive

behaviour, eBay reduces its economic stake in Adevinta to 33% or less within 18 months;

(ii) in order to prevent eBay’s ability to engage in anti-competitive behaviour, both parties

take measures to prevent the exchange of information and to reduce the economic

influence of eBay on willhaben.at. In particular, eBay commits to restrict the voting rights

of eBay-appointed board members on issues related to willhaben.at and Adevinta

commits not to exercise its right to appoint a managing director as well as several board

members at willhaben.at. The commitments are binding as long as eBay appoints a

director to Adevinta’s board and eBay’s financial or voting interest in Adevinta is 25%

or higher; but for a maximum of ten years.

Noteworthy: The merger was originally notified in Austria in December 2020, but

subsequently withdrawn; at that time, shpock was still controlled by Adevinta. The

merger was cleared subject to conditions in the UK (see below).

In Germany, it was

unconditionally cleared.

The Austrian authority drew attention to its close cooperation

with the German and UK authorities.

(3) Austria: Meta/Giphy (22 July 2021),

(7 February 2022),

(23 June 2022)

NCA: Bundeswettbewerbsbehörde; Kartellgericht; Kartellobergericht

Case numbers: BWB/Z-5549 (Bundeswettbewerbsbehörde); 28 Kt 6/21y

(Kartellgericht, 22 July 2021 – gun jumping); 28 Kt 8/21t and 28 Kt 9/21i (Kartellgericht,

7 February 2022); 16 Ok 3/22k and 16 Ok 4/22g (Kartellobergericht, 23 June 2022)

Concentration: Global technology company Meta (formerly Facebook) acquired the GIF

library Giphy. After Meta received a €9.6million fine for not notifying this acquisition to

Competition & Markets Authority, Adevinta/eBay Classifieds Group (ME/6897/20, 16 February 2021).

Bundeskartellamt, Adevinta/eBay Classifieds Group (B6-41/20, 23 November 2020); Bundeskartellamt,

‘Bundeskartellamt clears merger between eBay Classifieds Group and Adevinta’ (24 November 2020)

<https://www.bundeskartellamt.de/SharedDocs/Publikation/EN/Pressemitteilungen/2020/24_11_2020_eb

ay_Adevinta.pdf?__blob=publicationFile&v=5>.

Kartellgericht, 22 July 2021, 28 Kt 6/21y – Facebook/Giphy (fine for gun-jumping and non-notification).

Kartellgericht, 7 February 2022, 28 Kt 8/21t and 28 Kt 9/21i – Meta/Giphy (conditional clearance).

Kartellobergericht, 23 June 2022, 16 Ok 3/22k and 16 Ok 4/22g – Meta/Giphy. On this case, see also

Oberster Gerichtshof, ‘Bestätigung der kartellrechtlichen Nicht-Untersagung eines Zusammenschlusses

unter Auflagen’ (24 June 2022) <https://www.ogh.gv.at/entscheidungen/entscheidungen-ogh/bestaetigung-

der-kartellrechtlichen-nicht-untersagung-eines-zusammenschlusses-von-m-und-g-unter-auflagenv/>.

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the Austrian NCA,

the authority carried out an in-depth investigation and referred the

acquisition to the Cartel Court (phase 2). The Cartel Court cleared the acquisition subject

to conditions, a decision which was confirmed by the Supreme Cartel Court.

Horizontal theories of harm: In terms of horizontal unilateral effects, the authority

pointed out that the acquisition might stifle potential competition between Meta and

Giphy for advertising clients.

The authority was also concerned that the acquisition could lead to other horizontal

unilateral effects by granting Meta access to sensitive commercial information about

competing online services based on other apps’ integrated interface with the Giphy

library.

Non-horizontal theories of harm: In terms of vertical input foreclosure, the authority

noted that the acquisition may restrict non-discriminatory access to Giphy for other online

services.

Outcome: Conditionally cleared in phase 2.

Remedies: To address the competition concerns raised by the acquisition, the Cartel

Court imposed the following conditions for clearance of the merger: Meta has to (i)

provide non-discriminatory access to Giphy’s GIF library for competing social media

providers (for a duration of five years) and (ii) grant alternative GIF libraries, under

certain conditions, access to Giphy’s GIF library via programming interfaces (APIs) to

allow the establishment of an additional GIF provider other than Giphy (Meta) and Tenor

(Google) (for a duration of seven years).

Noteworthy: This merger had to be notified based on the transaction value threshold that

Austria introduced in 2017. Based upon an application by the authority, the Cartel Court

conditionally cleared the concentration in February 2022.

The conditional clearance was

confirmed by the Supreme Cartel Court in June 2022.

(4) Czechia: Rockaway Capital/Heureka (16 May 2016)

NCA: Úřad pro ochranu hospodářské soutěže

Case number: ÚOHS-S0013/2016/KS-21123/2016/840/DVá

Concentration: Private equity company Rockaway Capital intended to acquire control

of Heureka.cz, a Czech comparison shopping website.

Rockaway Capital also

controlled CZC.cz, an online electronics retailer, and other online businesses.

Horizontal theories of harm: NA

Non-horizontal theories of harm: Comparison shopping site Heureka.cz had a market

share between 45-55%. The authority was concerned that, post-merger, Heureka.cz would

Kartellgericht, 22 July 2021, 28 Kt 6/21y – Facebook/Giphy.

Bundeswettbewerbsbehörde, ‘Meta (Facebook)/Giphy merger: AFCA appealing against conditional

clearance’ (4 March 2022) <https://www.bwb.gv.at/en/news/news-2022/detail/meta-facebook-giphy-

merger-afca-appealing-against-conditional-clearance>.

Kartellobergericht, 23 June 2022, 16 Ok 3/22k and 16 Ok 4/22g – Meta/Giphy.

This summary is based on Jiří Kindl and Michal Petr, ‘Czech Republic’ in Daniel Mândrescu (ed), EU

Competition Law and the Digital Economy: Protecting Free and Fair Competition in an Age of

Technological (R)Evolution (XXIX FIDE Congress 2020) 165, 176.

Rockaway Capital also intended to acquire mall.cz, a major Czech online shopping mall. This acquisition

was unconditionally cleared; see Úřad pro ochranu hospodářské soutěže, Rockaway Capital/Sully

System/Netretail (ÚOHS-S0223/2016/KS-26867/2016/840/DVá, 27 June 2016).

Robertson, Merger review in digital and technology markets: Insights from national case law

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give preferential treatment to online businesses already controlled by Rockaway Capital.

A further concern related to the possibility that Heureka.cz could ask online shops to

collect excessive amounts of data about their users, data that could then be used in the

interest of Rockaway Capital’s businesses.

Outcome: Conditionally cleared in phase 1.

Remedies: In order to address the concerns voiced by the authority, Rockaway proposed

the following commitments: (i) a clear link between Heureka.cz and other Rockaway

Capital activities would be published on the website, ensuring transparency, (ii) it would

not discriminate against independent sellers (especially as regards the prescribed number

of positions of recommended shops that should have been increased in order to avoid a

decrease in the number of positions available to independent shops as compared with pre-

merger situation and the minimum number of search results of goods compared solely by

price), and (iii) it would limit the possibility to gather excessive data related to a specific,

score-based service that shows reliability of the online store from the customers’

perspective. In particular, Heureka.cz would not oblige sellers to provide other data than

the users’ email addresses, and it was not allowed to favour sellers that provided more

data or disadvantage those who did not.

(5) France: Rakuten/Alpha Direct Services (16 January 2013)

NCA: Autorité de la concurrence

Case number: 13-DCC-08

Concentration: Rakuten, which is active in e-commerce through its electronic

marketplace PriceMinister and several price comparison websites, wanted to acquire

exclusive control over Alpha Direct Services, a company specialising in inbound logistics

services for e-commerce and catalogue-based distance selling.

Horizontal theories of harm: NA

Non-horizontal theories of harm: As logistics costs are an important part of the cost

structure in e-commerce, the authority considered that this transaction would allow

PriceMinister to internalise some of these costs. This could lead to an anti-competitive

outcome if the transaction foreclosed the access of competing marketplaces to such

services (input foreclosure), or foreclosed the access of inbound logistics services to

distance sellers (customer foreclosure). Below a market share of 30%, competition

authorities generally rule out these types of effects. Alpha Direct Services had market

shares on the national market for upstream logistics services between 0 and 5%, while a

great number of bigger competitors existed on the market. On a possible national market

for inbound logistics services for e-commerce, its market shares were estimated at 10 to

20%, again with a number of competitors on the market. Therefore, no input foreclosure

was expected to arise.

Concerning a possible customer foreclosure, the authority noted that the target and its

competitors offered their services to many different distance sellers. While PriceMinister

was one of the most visited marketplaces, a number of important competitors (including

Amazon, eBay, CDiscount and Fnac) operated on the market and PriceMinister’s vendors

did not have exclusivity contracts. Also, PriceMinister remained a relatively small e-

commerce actor. Therefore, the authority expected no vertical restraints to arise.

Robertson, Merger review in digital and technology markets: Insights from national case law

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Outcome: Unconditionally cleared in phase 1.

Remedies: NA

Noteworthy: The authority assessed possible vertical theories of harm in-depth, but

concluded that such effects were unlikely to arise.

(6) France: Crédit Mutuel Arkéa, Primonial Management, Blackfin, Latour

Capital/Primonial Holding (12 August 2015)

NCA: Autorité de la concurrence

Case number: 15-DCC-105

Concentration: Crédit Mutuel Arkéa, Primonial Management, Blackfin and Latour

Capital wanted to acquire joint control of Primonial Holding. Amongst many others, this

transaction concerned the market for price comparison websites regarding insurance and

loans in which the Blackfin fund is involved, and the authority analysed possible

conglomerate effects relating to this market.

Horizontal theories of harm: Assessed by the authority, but not relevant in the present

context.

Non-horizontal theories of harm: As the parties involved were active on several

connected markets, the authority considered possible conglomerate effects. Only the

analysis regarding conglomerate effects relating to price comparison websites is

discussed here. The authority noted that Comparadise, owned by Blackfin, operated a

comparison website for loans and insurance on markets where Crédit Mutuel Arkéa and

Blackfin were present. The authority observed that Comparadise had low market shares

on the market for comparison websites in general as well as on possible markets for

comparing insurance (10-20%) or for comparing loans (0-5%). In addition, the website

faced competition from a number of specialised comparison websites, both in insurance

and in loans. In both banking and insurance, the market shares of the parties involved

were between 0-5%. Based on its view that foreclosure effects usually do not arise where

market shares are below 30%, the authority did not consider that the merger gave rise to

a potential risk.

Outcome: Unconditionally cleared in phase 1.

Remedies: NA

(7) France: Axel Springer/Concept Multimédia (1 February 2018)

NCA: Autorité de la concurrence

Case number: 18-DCC-18

Concentration: The Axel Springer group, which acquired the real estate web portal

SeLoger in 2010 (case 10-DCC-152), wanted to acquire Concept Multimédia, which

through Logic-Immo runs a web portal as well as print magazines on real estate. The

transaction concerned the market for online real estate classified ads, the market for

classified ads in print media and the national market for online advertising markets.

Horizontal theories of harm: The authority’s main competition concern was related to

possible horizontal effects on the market for online real estate classified ads for

professionals due to the creation of a new entity with a market share exceeding 50% in

value. The authority particularly investigated a possible rise of prices, a risk of competitor

Robertson, Merger review in digital and technology markets: Insights from national case law

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foreclosure due to bundling or related to the acquisition of data, and coordinated effects.

First, the risk of price increases resulting from the transaction were ruled out since, prior

to the transaction, the parties did not exert any significant competitive pressure on each

other. Second, the bundled offer likely to be implemented by the new entity on the market

for online real estate classifieds would not lead to a significant elimination of competition.

Third, the risks of coordinated effects between the new entity and the Le Bon Coin group

could be ruled out insofar as the detection condition, one of the three criteria necessary to

identify such an effect, was not met. The authority noted that these two players, which

have significant differences in their positioning and business models, operated in a market

with limited price transparency.

Non-horizontal theories of harm: The authority assessed whether there was a risk of

conglomerate effects due to the target’s presence on the market for real estate classified

ads in print media as well as online. The authority considered that while Logic-Immo had

an important share of the market for real estate classified ads in print media, that market

was in decline. Therefore, the market power of Logic Immo on the market for real estate

classified ads in print media would not be sufficient to create a leverage effect on a

connected market. There was thus no risk of foreclosure on the market for online real

estate classified ads. The authority also assessed whether foreclosure was likely on the

market for real estate classified ads in print media, as Logic-Immo already offered an

online/offline bundle and SeLoger’s internal documents showed that such an offer was

also considered by it. The authority concluded that the merged entity would have the

ability to propose such bundles or bundled rebates. Based on three different scenarios (a

discount on print ads; a discount on online ads; tying or a price increase), the authority

concluded that the incentive to implement such discounts for bundles or to enforce ties

would be limited. It also concluded that, in any case, the effect of such a bundle would

only lead to a marginal reduction of competition in the market for property advertisements

in the print media.

Outcome: Unconditionally cleared in phase 2.

Remedies: NA

Noteworthy: Conglomerate effects were not considered an issue because of the decline

of an offline market. Also note the German decision (case B6-39/15) on Axel Springer’s

purchase of Immowelt AG, another online portal for online real estate classified ads. On

the market for online advertising, the authority considered that the strong presence of

Google and Facebook – with a combined market share exceeding 65% – meant that no

anti-competitive effects should be expected on that relevant market.

(8) France: TF1/Aufeminin (23 April 2018)

NCA: Autorité de la concurrence

Case number: 18-DCC-63

Concentration: TF1, a group active in free and pay-TV, wanted to acquire sole control

of Aufeminin, a digital company involved mainly in publishing websites, selling online

advertising space and online retailing. TF1 also operated websites. Aufeminin was

previously controlled by the Axel Springer group. Markets concerned included the sale

of television advertising space, the sale of advertising space in the printed press, the sale

Robertson, Merger review in digital and technology markets: Insights from national case law

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of online advertising space, the operation of websites and marketing and commercial

communication services.

Horizontal theories of harm: No horizontal effects were expected due to the low market

shares of the merging parties on those markets where there was a horizontal overlap (i.e.,

especially printed press, marketing services and various retailing activities). Only the

overlap on the markets for the sale of online advertising space and the operation of

websites led to closer scrutiny. Regarding the market for the sale of online advertising,

the authority emphasised that post-merger TF1 could use the data obtained through

Aufeminin to improve its monetisation of online advertising spaces. However, the merged

entity would only cover, on a daily basis, between 5 and 7% of the female population it

aims at, compared to coverage rates of 79% for Google and 68% for Facebook. Therefore,

the authority did not expect horizontal effects to arise in this respect. Concerning the

operation of websites dedicated to female topics, the merged entity would have a low

market share below 15% and would continue to be subject to strong competition.

Non-horizontal theories of harm: Based on TF1’s low market shares as an online

advertising agency on the online advertising sales and intermediation markets, the

authority did not expect any vertical effects to arise.

The authority more closely assessed possible conglomerate effects between TF1’s market

presence in selling television advertising space and markets on which the target was

present, notably the sale of online advertising space and marketing and commercial

communication services. When assessing a possible bundling strategy in the sale of online

and television advertising space, the authority found that TF1 certainly had the ability to

engage in such a strategy. It also highlighted, however, that bundling TV advertising with

online or radio advertising was a common strategy in this sector that TF1’s competitors

also engaged in. TF1’s incentive to carry out this strategy was assessed through several

factors. The authority particularly emphasised that TF1 could benefit from the

complementarity of its bundle, the merging of data sets, and cost synergies, and concluded

that the implementation of such bundles appeared to be one of the objectives of the

acquisition. The authority considered that TF1 would use its position on the market for

television advertising space as leverage to strengthen its position on the market for online

advertising space. On the latter market, however, the new entity would have a market

share below 10%. Based on the strong position of TF1’s competitors and low barriers to

entry, and especially considering the competitive pressure emanating from GAFAM (with

Google’s market share in online advertising at 50-60%, Facebook at 10-20% and the new

entity at only 0-5%), the authority concluded that conglomerate effects could be

discarded.

Further conglomerate effects the authority briefly assessed (but dismissed) related to the

sale of advertising space on television and in the printed press, and to the sale of television

advertising space on television and marketing and commercial communication services.

Outcome: Unconditionally cleared in phase 1.

Remedies: NA

Noteworthy: On the market for online advertising, the authority considered that the

strong presence of Google and Facebook meant that no conglomerate effects would arise

Robertson, Merger review in digital and technology markets: Insights from national case law

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even if the merged entity were to engage in bundling of online and television advertising

space – as was to be expected.

(9) Germany: Axel Springer/Immowelt (20 April 2015)

NCA: Bundeskartellamt

Case number: B6-39/15

Concentration: Axel Springer planned to acquire Immowelt on the market for online real

estate platforms, and its daughter company Immonet should enter into a joint venture with

the target.

Horizontal theories of harm: The acquisition would lead to the merging of the second-

biggest and the third-biggest online real estate platforms in Germany, meaning that this

narrow market would be further concentrated. However, Immoscout would undoubtedly

remain the market leader, with only a few smaller, sometimes specialized further

competitors and meta search engines present on the market. Despite this concentrated

market, the Bundeskartellamt found that the merger would indeed be pro-competitive as

it would help ensure that the market would not tip. It also noted that users in this market

tended to multi-home, further safeguarding against market tipping.

The authority also considered whether coordinated effects would arise, but concluded that

the risk of collusion in such a two-sided market was lower than in traditional markets,

especially as the two remaining players had considerable structural differences.

Non-horizontal theories of harm: NA

Outcome: Unconditionally cleared in phase 1.

Remedies: NA

Noteworthy: Not only did the German Bundeskartellamt not regard this horizontal

merger as harmful for competition on the narrow market of online real estate platforms,

it also found that the merger was indeed pro-competitive as it would help to ensure that

the market would not tip.

(10) Germany: ProSiebenSat.1/Verivox (24 July 2015)

NCA: Bundeskartellamt

Case number: B8-76/15

Concentration: The media company ProSiebenSat.1 proposed to acquire the comparison

platform Verivox on the market for the operation of online platforms for final consumer

contracts, including electricity and gas contracts, insurance, banking, mobile telephony,

etc.

Horizontal theories of harm: No noteworthy horizontal overlaps.

Concerning coordinated effects, the authority assessed whether the merger could increase

the likelihood of collusion between Verivox and Check24, its main competitor. It found

that by leading to further asymmetries among these competitors, the opposite was the

case.

Non-horizontal theories of harm: The Bundeskartellamt assessed whether, post-merger,

ProSiebenSat.1 might have the ability and the incentive to grant Verivox better

advertising space at more favourable conditions than it does to Verivox’s competitors,

and whether this could restrict effective competition. Verivox was the market leader,

Robertson, Merger review in digital and technology markets: Insights from national case law

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Check24 its main competitor (both together held 95% of the market). ProSiebenSat.1’s

ability and incentive to engage in such input foreclosure would be restricted as it would

miss out on advertising revenue from Verivox’s competitors. Also, TV commercials at

ProSiebenSat.1 were not the only advertising channels available to Verivox’s

competitors. In addition, sellers usually used several price comparison platforms in

parallel (multi-homing). The Bundeskartellamt therefore concluded that this would not

result in an appreciable restriction, also not through market tipping.

Remedies: NA

Outcome: Unconditionally cleared in phase 1.

Noteworthy: This conglomerate merger was unconditionally cleared after a careful

analysis of the various effects that arise in digital multi-sided markets.

(11) Germany: OCPE II Master (Parship)/EliteMedianet (22 October 2015)

NCA: Bundeskartellamt

Case number: B6-57/15

Concentration: The fund OCPE II Master is, amongst others, the owner of the online

dating portal Parship.de, which it acquired in 2015 (cleared by the Bundeskartellamt on

24 March 2015). It proposed to acquire EliteMedianet, which runs two popular online

dating portals (ElitePartner.de and AcademicPartner.de), on the national market for

online dating platforms.

Horizontal theories of harm: The authority analysed whether this horizontal acquisition

by one online dating platform of another could lead to competitive harm. Despite the high

combined turnover-based market shares of the merging parties, the authority concluded

that the case raised no competition concerns. Concerning non-coordinated effects due to

obtaining a dominant position, the authority concluded that the market environment was

such that the merging parties would not obtain a single dominant position post-merger,

and in particular there was no danger of tipping. Contrary to other digital markets,

network effects on this market are limited because users (singles) tend to multi-home,

there is a large degree of platform differentiation, and online dating platforms constantly

need to acquire new users due to users (singles) leaving the market as customers when

they find a match or because they are dissatisfied when they do not find a match (no lock-

in). Users also have a sufficient number of alternatives available to them, and market

entry barriers are rather low.

Concerning non-coordinated effects other than obtaining a dominant position, the

authority concluded that the merging parties were not close enough in competition to lead

to any such effects. Due to the presence of a varied field of competitors, the authority also

did not expect any coordinated effects to arise.

Non-horizontal theories of harm: NA

Outcome: Unconditionally cleared in phase 2.

Remedies: NA

Noteworthy: This case showed what type of digital market environment would not

warrant intervention; the specific characteristics of online dating platforms led to the

unconditional clearance of this merger. In 2020, similar considerations led to the

unconditional clearance of the acquisition of The Meet Group (which operates the Lovoo

Robertson, Merger review in digital and technology markets: Insights from national case law

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online dating platform) by Parship and ElitePartner, which were by then owned by media

group ProSiebenSat.1.

(12) Germany: CTS Eventim/FKP Scorpio (3 January 2017)

NCA: Bundeskartellamt

Case number: B6-53/16

Concentration: CTS Eventim, a company active in live entertainment, event venues and

ticketing, wanted to increase its stake in FKP Scorpio, an organiser of rock/pop festivals

and tours.

Horizontal theories of harm: The authority assessed whether the increase in CTS

Eventim’s stake in FKP Scorpio could lead to horizontal unilateral effects in a range of

markets. Concerning rock/pop tour concerts, the authority considered that CTS Eventim’s

importance on that market had taken a dive since 2016, while FKP Scorpio did not have

an important position on that market. Therefore, no competition concerns would arise.

On regional markets for music festivals, the authority concluded that there was no

considerable overlap in the geographic market between the parties’ activities, other music

events could be a constraining factor, and there were low barriers to entry; no competition

concerns would arise.

Non-horizontal theories of harm: The authority assessed whether vertical foreclosure

effects could arise because events organised by FKP Scorpio were also sold via CTS

Eventim’s ticketing system. It assessed this two-sided market in some depth, and

concluded that FKP Scorpio’s events were already available via CTS Eventim’s ticketing

system, which was probably dominant (both vis-à-vis event organisers and vis-à-vis

points of sale). The increase in CTS Eventim’s stake would, however, not further

strengthen that market position and would therefore not lead to input foreclosure.

Outcome: Unconditionally cleared in phase 2.

Remedies: NA

Noteworthy: While the authority did not consider that this acquisition would strengthen

the market leader’s dominant position, this was seen differently in CTS Eventim/Four

Artists, decided in the same year.

(13) Germany: CTS Eventim/Four Artists (23 November 2017)

NCA: Bundeskartellamt

Case number: B6-35/17

Concentration: CTS Eventim, a company active in live entertainment, event venues and

ticketing, wanted to acquire a majority stake in Four Artists, a company active in

organising live events and as a booking agent for a range of famous German artists.

Horizontal theories of harm: The authority considered that the acquisition would further

strengthen CTS Eventim’s already dominant position on the market for ticket system

services for event organisers and booking offices. The authority underlined how the (then)

new German provision of § 18 para 3a ARC

on assessing market dominance in multi-

Bundeskartellamt, Parship and ElitePartner/Lovoo (B6-29/20, 6 July 2020).

Act against Restraints of Competition, German Federal Law Gazette I 2013/1750 as amended.

Robertson, Merger review in digital and technology markets: Insights from national case law

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sided markets allowed the conclusion that CTS Eventim was indeed dominant on these

markets, and how indirect network effects worked to the incumbent’s advantage. It found

that high barriers to entry, considerable lock-in effects and limited multi-homing by the

other market side led to a strong market position, while no innovation-driven competition

was discernible. The acquisition would lead to a strengthening of CTS Eventim’s market

position on the market for ticket system services, thereby significantly impeding effective

competition.

Non-horizontal theories of harm: CTS Eventim’s competitors already had restricted

access to customers, both because of CTS Eventim’s vertical integration and because of

CTS Eventim’s exclusivity clauses with event organisers. Through recent transactions,

CTS Eventim had further strengthened its dominant position.

This further acquisition

would contribute to CTS Eventim’s strategy of customer foreclosure.

Outcome: Prohibited.

Remedies: NA

Noteworthy: The parties appealed the prohibition before the Higher Regional Court

Dsseldorf, which confirmed the Bundeskartellamt’s prohibition decision.

Upon further

appeal, this was also confirmed by the German Federal Court.

The authority underlined that it regarded CTS Eventim’s exclusivity contracts with event

organisers as contributing to an abusive customer foreclosure vis-à-vis competing

ticketing platforms; the same analysis had to apply when assessing this concentration.

(14) Germany: PayPal/Honey Science (17 December 2019)

NCA: Bundeskartellamt

Case number: B6-86/19

Concentration: PayPal, a provider of payment services including a popular ‘digital

wallet’, wanted to acquire Honey Science, a developer of browser extensions that

automatically apply coupon and discount codes during virtual check-out.

Horizontal theories of harm: NA

Non-horizontal theories of harm: The authority took into consideration that PayPal has

quite a strong market position on the market for payment systems, and assessed possible

vertical and conglomerate effects. On the market for online payment systems, it did not

expect an appreciable restriction of competition because a number of strong payment

service providers had emerged in recent years (including Klarna, WireCard, Adyen). It

also mentioned Apple Pay and Google Pay as possible competitive constraints, as these

have significant resources and a large user base. These can therefore be expected to make

use of network effects. This competition would act as a competitive constraint

See Bundeskartellamt, CTS Eventim/FKP Scorpio (B6-53/16, 3 January 2017).

Oberlandesgericht Düsseldorf, 5 December 2018, Kart 3/18 (V) – CTS Eventim/Four Artists.

Although the Higher Regional Court had not allowed a further appeal on legal grounds, the Federal Court

decided to accept such an appeal (even after the parties had abandoned the merger); Bundesgerichtshof, 24

March 2020, KVZ 3/19 – CTS Eventim/Four Artists. Subsequently, the Federal Court confirmed the

Bundeskartellamt’s decision that the strengthening of a dominant position can be a valid reason for

prohibiting a merger where competition would be further limited by a concentration; Bundesgerichtshof,

12 January 2021, KVR 34/20 – CTS Eventim/Four Artists.

Robertson, Merger review in digital and technology markets: Insights from national case law

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countervailing vertical or conglomerate effects, eg in the shape of foreclosure practices

or tying and the leveraging of market power to third markets.

Outcome: Unconditionally cleared in phase 1.

Remedies: NA

Noteworthy: This merger had to be notified based on the transaction value threshold that

Germany introduced in 2017. In the assessment of whether Honey’s activity on the

German market was substantial, the authority emphasised that many online businesses

are easily scalable with minimal effort. It also underlined the fact that many online

businesses can only be monetised a significant period of time after their market entry,

meaning that current sales figures do not reflect their competitive potential.

(15) Germany: Cisco Systems/Acacia Communications (6 February 2020)

NCA: Bundeskartellamt

Case number: B7-205/19

Concentration: Cisco Systems, a worldwide developer and producer of network devices,

proposed to acquire Acacia Communications, which produces semiconductors for

specific applications.

Horizontal theories of harm: Based on the relevant markets at issue, the authority found

that Acacia’s and Cisco’s respective market positions would not be strengthened.

Non-horizontal theories of harm: To assess possible vertical concerns related to input

foreclosure, the authority analysed the downstream markets for optical networks,

switches and routers. While Acacia was not active on those markets, Cisco had high

market shares on them. The authority expected no appreciable restrictions of competition

to arise, however, as there were a great number of competitors active on the various

market levels. Customers usually buy individual network components and employ a (at

least) dual vendor strategy. In terms of a possible foreclosure of competitors in relation

to digital signal processors, the authority concluded that while the merged entity would

have the ability for this type of conduct, it would have no incentive to do so and there

would also be no effects on the market following such behaviour. Reasons for this

conclusion included high profit margins for digital signal processors, the high number of

competitors and vertically integrated companies. Similarly, for optical networks the

authority found that while the merged entity might have the ability to foreclose

competitors as regards optical transceiver modules, it would have no incentive to do so

based on a sufficient number of credible competitors remaining on the market.

Outcome: Unconditionally cleared in phase 1.

Remedies: NA

Noteworthy: In China, the merger was only cleared subject to conditions.

In Austria,

the merger was unconditionally cleared,

while in the US the Hart-Scott-Rodino waiting

period expired.

State Administration for Market Regulation, Cisco Systems/Acacia Communications (14 January 2021).

Bundeswettbewerbsbehörde, Cisco Systems/Acacia Communications (BWB/Z-4545, 3 September 2019).

‘Cisco-Acacia merger receives antitrust approval in US, still needs OK in Germany and China’ MLex (27

September 2019) <https://content.mlex.com/#/content/1131563?referrer=portfolio_openrelatedcontent>.

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(16) Germany: Meta/Kustomer (11 February 2022)

NCA: Bundeskartellamt

Case number: B6-21/22

Concentration: The digital platform Facebook (now Meta) intended to acquire

Kustomer, the provider of a cloud-based customer relationship management (CRM)

platform to business users.

Horizontal theories of harm: There is a small horizontal overlap between Meta’s

Unified Inbox service, which only encompasses communication channels offered by

Meta, and Kustomer’s CRM service. Based on the commitments Meta made vis-à-vis the

European Commission,

the German authority considered that the concentration would

only have negligible effects on that market.

Non-horizontal theories of harm: The German authority emphasised that the

concentration also needed to be assessed against the background of Meta’s social media

ecosystem. In particular, it investigated whether the acquisition could enable Meta to

safeguard, further develop or strengthen its own digital ecosystem. This could then

manifest itself on particular relevant markets, such as in social media advertising. In this

respect, the authority particularly considered the data advantage that the acquisition of

Kustomer would provide Meta with. It also analysed to what extent the acquisition could

help Meta to further develop its offerings. The authority concluded that, overall, anti-

competitive effects on markets in which Meta already has significant market power were

entirely possible. However, the authority refrained from opening phase 2 proceedings as

it was not possible to establish, to the required standard of probability, that the services

and capabilities associated with Kustomer were of sufficient importance to lead to a

strengthening of Meta’s ecosystem as sketched by the authority.

Outcome: Unconditionally cleared in phase 1.

Remedies: NA

Noteworthy: This case had to be notified in Austria and Germany due to the transaction

value threshold that both countries adopted in 2017. This was not a case of the one-stop-

shop rule, as Austria had referred the case to the Commission while Germany had not. At

the time of the Austrian referral, the German authority had not yet concluded whether the

transaction did, in fact, have to be notified to it.

The president of the Bundeskartellamt

stated that ‘it is with unease that we ultimately had to acknowledge that the effects of the

acquisition would not have warranted a prohibition under existing competition law’.

The European Commission had conditionally cleared this merger.

Australia and the UK

European Commission Decision of 27 January 2022, M.10262 – Meta/Kustomer.

This was then established in a separate decision, which at the time of writing is on appeal before the

Oberlandesgericht Düsseldorf. See Bundeskartellamt, Meta/Kustomer (B6-37/21, 9 December 2021).

Andreas Mundt in Bundeskartellamt, ‘Bundeskartellamt clears acquisition of Kustomer by Meta

(formerly Facebook)’ Press Release (11 February 2022)

<https://www.bundeskartellamt.de/SharedDocs/Meldung/EN/Pressemitteilungen/2022/11_02_2022_Meta

_Kustomer.html>.

European Commission Decision of 27 January 2022, M.10262 – Meta/Kustomer.

Robertson, Merger review in digital and technology markets: Insights from national case law

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had also cleared this merger.

In its press release, the Bundeskartellamt emphasised that

the European Commission had cleared this transaction on 27 January 2022.

(17) Greece: Delivery Hero/Alfa Distributions/Inkat/Delivery.gr/E-table (18 April

2022)

NCA: Επιτροπή Ανταγωνισμού (Hellenic Competition Commission)

Case number: 775/2022

Concentration: Delivery Hero operated e-food, the leading online food delivery platform

in Greece, which is also active, inter alia, in the market for online intermediation for the

sale of groceries. It wanted to acquire the following companies: Alfa Distributions, which

is active in the wholesale supply of consumer goods to supermarkets; Inkat, which is

active in the wholesale supply of groceries and operates a retail grocery store chain;

Delivery.gr, which provides online delivery intermediation services for restaurants,

supermarkets, convenience stores and other local stores; and E-table, which provides

online intermediation services for reservations in restaurants.

Horizontal theories of harm: NA

Non-horizontal theories of harm: The authority’s investigation found that by combining

the acquirer’s online food ordering platform with the targets’ online intermediation

services for reservations in restaurants, conglomerate effects would arise. Both E-table

and Delivery Hero had significant market power in their respective Greek markets. Post-

merger, conglomerate foreclosure effects through bundling were likely to arise, as the

merged entity would have the ability and incentive to bundle their services for business

users. A further concern voiced by the authority related to the combination of data sets

from both services that would allow for targeted advertisements with which no

competitors could effectively compete.

Outcome: Conditionally cleared in phase 2.

Remedies: Delivery Hero committed (i) not to tie online intermediation services for food

ordering (e-food) with online reservation services in restaurants (e-table) when offered to

business users (ie, restaurants). This also extends to special discounts and reduced fees

that would have the same effect. Furthermore, Delivery Hero would (ii) not use end user

data collected from one platform to run targeted advertisements on the other, unless end

users have previously provided consent to this, in accordance with existing data protection

rules. A monitoring trustee will ensure the implementation of these commitments over

the course of two years, which is the time during which they apply. The authority may,

however, decide to extend this duration by one year depending on how the market

evolves.

Competition & Markets Authority, Meta/Kustomer (ME/6920/20, 27 September 2021); Australian

Competition & Consumer Commission, Meta/Kustomer (18 November 2021).

European Commission Decision of 27 January 2022, M.10262 – Meta/Kustomer.

This summary is based on the press release published by the Hellenic Competition Commission,

‘Decision No. 775/2022 – approval of Delivery Hero’s acquisition of companies Alpha Distributions SA,

Inkat SA, Delivery.gr Single Member P.C. and E-Table Single Member P.C., subject to commitments’

<https://www.epant.gr/en/enimerosi/press-releases/item/2189-press-release-the-hellenic-competition-

commission-approves-delivery-hero-s-acquisition-of-four-companies-subject-to-commitments.html>

Robertson, Merger review in digital and technology markets: Insights from national case law

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Noteworthy: The authority noted that, post-merger, the merged entity’s e-food and

delivery.gr platforms will together have a high combined market share on the market for

online intermediation for the sale of groceries. Due to other supermarkets’ bargaining

power, however, it did not consider that the merged entity would be able to restrict

competition in this respect. The authority imposed a data separation remedy to Delivery

Hero’s ecosystem with the intention of limiting the likelihood of a data leveraging

strategy from online delivery to online intermediation markets and vice versa.

(18) Hungary: Magyar RTL Televízió/Central Digitális Média (24 January 2017)

NCA: Gazdasági Versenyhivatal

Case number: VJ/87/2016

Concentration: Magyar RTL Televízió (RTL) intended to acquire 30% of the shares of

Central Digitális Média (CDM), providing RTL the right of control over CDM by holding

more than 50% of the voting rights in CDM and having the power to designate, appoint

or dismiss the majority of CDM’s executive officers. RTL was a member of the

Bertelsmann group, which operates a number of TV channels, provides broadcasting

services and advertising time, and operates the websites www.rtl.hu/rtlklub and

www.rtl.hu/most. CDM published online press products and advertising space therein.

The main portals operated by CDM were startlap.hu (portal), 24.hu (news site), NLCafé

(content for women), HaziPatika.com (health site), Vezess.hu (content on cars),

Hírstart.hu (news aggregator), Citromail.hu (email client/service) and SegementAd

(email database).

Horizontal theories of harm: No assessment was carried out by the competition

authority, see below.

Non-horizontal theories of harm: No assessment was carried out by the competition

authority, see below.

Outcome: Prohibited.

Conditions: NA

Noteworthy: The Media Council of the National Media and Infocommunications

Authority (NMIA), based on the Hungarian Media Services Act, refused to approve the

concentration based on concerns related to media pluralism. However, the Media Council

of the NMIA also established its lack of jurisdiction in terms of the email client

citromail.hu and email database SegmentAd. As regards the relevant market, the NMIA

established that it was the combination of media content for information and orientation

that appeared on the Hungarian television and digital platforms. The Hungarian authority

is bound by the resolution of the Media Council of the NMIA and, due to the latter’s

refusal, it prohibited the concentration without investigating the competitive effects of the

merger – neither in case of citromail.hu, nor SegmentAd – as the transaction would have

only been implemented in whole by the parties.

Thank you to Dániel Élő for providing a summary of this case, which was subsequently shortened by the

author of this Report.

Robertson, Merger review in digital and technology markets: Insights from national case law

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While the Metropolitan Court of Budapest as the first instance court upheld the authority’s

decision,

the Hungarian Supreme Court annulled it and ordered the authority to conduct

a new competition proceeding.

Although the authority initiated competition proceedings

in March 2020, the transaction was abandoned by the vendor, thus leading to a

termination of these proceedings. RTL continues to pursue this case before the

Constitutional Court of Hungary.

(19) Hungary: eMAG/Extreme Digital (17 October 2019)

NCA: Gazdasági Versenyhivatal

Case number: VJ/14/2019

Concentration: Dante operates the online store eMAG and intended to acquire sole

control over Extreme Digital, the operator of an online store (edigital.hu) as well as of 16

brick-and-mortar retail outlets in Hungary. There was a particular overlap in the parties

in the sale of consumer electronics.

Horizontal theories of harm: The authority concluded that the sale of consumer

electronics constitutes one single market, no matter whether distribution occurs online or

offline. The parties’ combined market share on this market was below 20%, meaning that

no anti-competitive effects would be found to arise. Even when only looking at the online

segment, however, the authority found that it would be unlikely for anti-competitive

effects to arise because of a transparency in market prices, the price sensitivity of online

consumers, the remaining competition from competitors, and market contestability.

Non-horizontal theories of harm: NA

Outcome: Unconditionally cleared in phase 2.

Conditions: NA

Noteworthy: The case demonstrates how the interplay between online and offline

markets is increasingly incorporated into the antitrust assessment.

(20) Hungary: Netrisk.hu/Biztosítás.hu (12 December 2019)

NCA: Gazdasági Versenyhivatal

Case number: VJ/12/2019

Concentration: Netrisk.hu, an insurance mediation company, intended to acquire direct

and sole control over its competitor Biztosítás.hu. The two companies were the most

important online market participants in the relevant market concerned, which was

determined to be the market of non-life insurance mediation by brokers.

Fővárosi Törvényszék, Magyar RTL Televízió/Central Digitális Média (21.K.700.023/2018/12, 8 June

2018).

Kúria, Magyar RTL Televízió/Central Digitális Média (Kf.IV.38.095/2018/10, 9 December 2019).

The present summary is based on the press release of the Hungarian NCA; Gazdasági Versenyhivatal,

‘The Hungarian Competition Authority authorised the acquisition of Extreme Digital by eMAG’ (17

October 2019)

<https://www.gvh.hu/en/press_room/press_releases/press_releases_2019/the_hungarian_competition_aut

hority_authorised_the>.

The present summary is based on the press release of the Hungarian NCA; Gazdasági Versenyhivatal,

‘The GVH authorised the merger of Netrisk and Biztosítás.hu’ (12 December 2019)

<https://www.gvh.hu/en/press_room/press_releases/press_releases_2019/the-gvh-authorised-the-merger-

of-netrisk-and-biztositas.hu>.

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Horizontal theories of harm: The authority analysed both the impact the transaction

would have on the market, and the competitive pressure that can be expected from

traditional (ie, non-online) insurance mediators and insurers’ online platforms. It found

that the transaction would not lead to an anti-competitive outcome, especially as the price

of an insurance is set by insurers and agents, while insurance mediators cannot directly

increase prices. The authority also took into account the bargaining power of insurance

companies. The merging of databases through the acquisition would not, in the eyes of

the authority, have a substantial impact on data usability.

Non-horizontal theories of harm: NA

Outcome: Unconditionally cleared in phase 2.

Conditions: NA

Noteworthy: The case demonstrates how the interplay between online and offline

markets is increasingly incorporated into the antitrust assessment.

(21) Ireland: Paddy Power/Betfair (15 January 2016)

NCA: Competition and Consumer Protection Commission

Case number: M/15/059

Concentration: Paddy Power, an international multi-channel betting and gaming

company with an online as well as a brick-and-mortar presence in the UK and in Ireland,

wanted to enter into a merger with Betfair, an international online-only gambling

operator. Markets affected included the national market for the provision of online fixed-

odds betting services and the national market for the provision of online gaming services.

Horizontal theories of harm: On the market for online betting services, the authority

concluded that the merging parties were not such close competitors on this market that

they would find it profitable to increase their prices post-merger.

On the market for the provision of online fixed-odds betting services, the merged entity

would face strong competition from various large competitors, and was therefore unlikely

to be able to increase its prices.

On the very competitive market for online gaming services, the merged entity would only

have a slight increase in market share compared to Paddy Power’s pre-merger market

share, and no anti-competitive effects were therefore considered to arise.

Overall, the authority noted that although Paddy Power was the market leader in a number

of relevant markets, its market shares had declined over the last years.

Non-horizontal theories of harm: The authority analysed possible vertical effects in the

provision of live betting exchange data to online betting service providers, data that

Betfair provided and Paddy Power had previously purchased from it. This kind of data is

used by providers of online betting services to set their prices for fixed-odds events. The

authority assessed a possible input foreclosure of competing fixed-odds betting service

providers through restricting their access to Betfair’s live betting exchange data. They

concluded, however, that Betfair’s data did not constitute an essential input for these

providers, which is also seen in the fact that a number of online betting service providers

did not purchase this data from Betfair. In addition, there were an array of alternative

sources for this data. The authority thus concluded that the merger would not lead to

vertical input foreclosure.

Robertson, Merger review in digital and technology markets: Insights from national case law

137

Outcome: Unconditionally cleared in phase 1.

Remedies: NA

(22) Ireland: Ladbrokes/Gala Coral (10 March 2016)

NCA: Competition and Consumer Protection Commission

Case number: M/16/007

Concentration: Ladbrokes is a multi-channel betting and gaming company with online

and brick-and-mortar presence in Ireland, the UK, Spain and Belgium. It also owns the

online betting exchange Betdaq. Ladbrokes intended to merge with businesses of the Gala

Coral group that equally runs a multi-channel betting and gaming company with online

presence in Ireland and brick-and-mortar presence in the UK and Italy. Markets affected

included the national market for the provision of online fixed-odds betting services and

the national market for the provision of online gaming services

Horizontal theories of harm: The horizontal overlap in online betting, online gaming

and telephone betting services was assessed. The authority considered that a number of

large competitors operated on these markets that would act as competitive constraints on

the merged entity, and that the target’s share of these markets was rather insignificant.

Non-horizontal theories of harm: A potential vertical overlap between the parties

concerned the sale of betting exchange data, which Ladbrokes sold in Ireland. When

assessing whether this could lead to the foreclosure of competing fixed-odds betting

service providers, the authority relied on the same analysis it had carried out in Paddy

Power/Betfair (case M/15/059) and highlighted that not only was this not essential input,

but there were also alternative sources for obtaining such data.

Outcome: Unconditionally cleared in phase 1.

Remedies: NA

(23) Ireland: Stars Group/Sky Betting & Gaming (18 June 2018)

NCA: Competition and Consumer Protection Commission

Case number: M/18/038

Concentration: Stars Group is a global provider of technology-based products and

services related to online gaming and interactive entertainment. Amongst others, it offers

online gaming and online sportsbook betting, operates real-world poker tournaments, and

provides affiliate marketing services and odds comparison through iBus. Stars Group

intended to acquire Cyan Blue, which controls the Sky Betting & Gaming group. The Sky

Betting & Gaming group is active in online and mobile betting and gaming services and

also operates Oddschecker, an odds comparison service that provides customers with

price/odds comparisons but also offers betting and gaming providers advertising space.

Markets affected included the national market for the provision of online fixed-odds

betting services, the national market for the provision of online gaming services, the

national market for the supply of online advertising space on gambling-related websites,

and the national market for the provision of odds comparison services.

Horizontal theories of harm: In terms of horizontal overlaps, the authority considered

effects on the following markets: online betting services, online gaming services, online

advertising space on gambling-related websites, and online gambling affiliate marketing

Robertson, Merger review in digital and technology markets: Insights from national case law

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services. Based on the low combined market shares of the merged entity and the large

number of competitors active in these markets, the transaction did not raise competition

concerns in the eyes of the authority. In particular, the authority underlined that in online

gaming services, there was a high degree of market transparency for consumers, including

through odds comparison websites, and consumers tended to multi-home, thereby

ensuring there would not be anti-competitive effects.

Non-horizontal theories of harm: In terms of vertical relationships, the authority

assessed odds comparison and online affiliate marketing. In odds comparison, Stars

Group had an affiliate contract with Sky’s Oddschecker. The authority thus analysed

whether, post-merger, the merged entity may have the ability and incentive to foreclose

competing providers from accessing odds comparison or to foreclose competing odds

comparison services. It concluded that neither would be the case based on the large

number of online fixed-odds betting providers and online gaming providers present on

the market, and in the light of the small market share increase in these markets for the

merged entity. The authority also held that Oddschecker was unlikely to refuse to display

competing offers on its comparison site, as displaying multiple offerings is required for

these types of sites. In addition, there are several competing odds comparison services

active on the market. In conclusion, the authority found that the merged entity would have

neither the ability nor the incentive to foreclose competing providers from accessing odds

comparison.

On the market for online affiliate marketing services, the authority analysed whether,

post-merger, the merged entity may have the ability and incentive to foreclose competing

online fixed-odds betting providers or online gaming providers from accessing online

affiliate marketing services, or to foreclose competing online affiliate marketing services.

It concluded that based on the high number of international online market affiliates

specialising in the gambling sector, the high number of competing online fixed-odds

betting providers and online gaming providers, and the low market involvement of iBus,

no vertical foreclosure concerns would materialise.

Outcome: Unconditionally cleared in phase 1.

Remedies: NA

(24) Ireland: EQT Fund Management/SUSE (18 September 2018)

NCA: Competition and Consumer Protection Commission

Case number: M/18/066

Concentration: EQT, a group of private equity funds investing in portfolio companies,

wanted to acquire SUSE, an open source software provider with a focus on infrastructure

software and middleware. EQT already held four companies active in software, but none

of these horizontally overlapped with SUSE.

Horizontal theories of harm: NA

Non-horizontal theories of harm: The transaction would lead to vertical integration

between SUSE in infrastructure software and middleware (upstream) and EQT’s software

companies in application software (downstream). The authority therefore assessed

possible vertical foreclosure, once upstream in the supply of infrastructure, middleware

and database software; and once downstream in the purchasing of infrastructure,

Robertson, Merger review in digital and technology markets: Insights from national case law

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middleware and database software. On input foreclosure, the authority considered that the

low market shares held by the merged entity would not allow it to engage in the

foreclosure of Linux operating systems for servers or any of the types of software. On

customer foreclosure, EQT’s low turnover in application software led the authority to

conclude that the merged entity would not be able to foreclose upstream competitors from

accessing application software providers.

Outcome: Unconditionally cleared in phase 1.

Remedies: NA

(25) Ireland: Applied Materials/Kokusai Electric Corporation (11 October 2019)

NCA: Competition and Consumer Protection Commission

Case number: M/19/027

Concentration: Applied Materials proposed to acquire sole control of Kokusai Electric

Corporation, a transaction that affected the national market for the supply of wafer

fabrication equipment tools (semiconductors).

Horizontal theories of harm: Based on the intricacies and great differentiation within

the sector of wafer fabrication equipment, the authority found that the deposition tools

offered by the acquirer and the target were not substitutes and did not compete with each

other; there was only a minimal overlap that was not considered to raise any competition

concerns.

Non-horizontal theories of harm: NA

Outcome: Unconditionally cleared in phase 1.

Remedies: NA

(26) Ireland: Flutter Entertainment/Stars Group (12 May 2020)

NCA: Competition and Consumer Protection Commission

Case number: M/20/001

Concentration: Flutter Entertainment, a gambling operator active amongst others online

as well as through 620 Paddy Power outlets in the UK and Ireland, proposed to acquire

Stars, a Canadian operator of technology-based product offerings in the gambling and

interactive entertainment industries. Stars did not operate local betting offices in Ireland.

Horizontal theories of harm: The authority assessed the horizontal overlap in the

provision of online gambling services in Ireland and the likelihood of unilateral effects

following the merger. In online betting services, it found that the parties were not each

other’s closest competitors and that a high degree of transparency allowed consumers

easy comparison and switching. It concluded that unilateral effects post-merger were

unlikely to be successful. In online fixed-odds betting services, it found similar market

conditions as those outlined above.

In online gaming services, the authority found that the merged entity would not have the

ability to unilaterally raise prices. And in online poker services, the authority found that

there were relatively low entry barriers and market transparency contributed to easy

switching for consumers, making unilateral effects unlikely.

The authority did not raise any concerns relating to the small horizontal overlap in the

supply of odds comparison services.

Robertson, Merger review in digital and technology markets: Insights from national case law

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Non-horizontal theories of harm: The authority identified a number of (actual and

potential) vertical relationships between the merging parties. As concerns odds

comparison services, the authority noted that Stars’ service Oddschecker had an affiliate

contract with Flutter. However, two competitors that were more important than

Oddschecker would continue to represent a competitive constraint for Oddschecker. The

authority also highlighted that the merged entity was unlikely to foreclose rival online

betting services providers from accessing odds comparison services, because that would

make Oddschecker less compelling in the eyes of consumers.

Concerning online affiliate marketing services, the authority noted that Stars’ iBus

affiliate marketing services were of limited relevance in Ireland, and over 35,000 online

marketing affiliates specialising in the gambling sector continued to provide such services

after the merger. On the provision of horse racing and football data, the authority

considered that a number of alternative horse racing and football data providers would

continue to exist post-merger, representing a competitive constraint. Finally, the authority

did not believe any vertical competition concerns would arise in relation to the provision

of gaming developments services and the provision of online betting exchange data.

Concerning the adjacent market of matched betting services, the authority concluded that

the merged entity would neither have the ability nor the incentive to foreclose matched

betting services providers from the market, as these could gather the data required through

other means and constituted a means for customer acquisition for online betting services

providers.

Outcome: Unconditionally cleared in phase 1.

Remedies: NA

Noteworthy: The authority assessed the closeness between competitors by analysing

their Google AdWord spending as directed at their competitors. As Oddschecker was not

a service with a dominant position, the likelihood of it engaging in self-preferencing by

providing a better positioning for its own services was not assessed.

This concentration was also unconditionally cleared in Bulgaria,

Malta,

Spain

and

the UK.

(27) Ireland: Booster/Liftoff Mobile (15 February 2021)

NCA: Competition and Consumer Protection Commission

Case number: M/21/002

Concentration: Booster proposed to acquire Liftoff Mobile on the national market for

mobile app advertising intermediation. Booster is owned by Blackstone, an alternative

asset manager and provider of financial advisory services. Among its assets is Vungle, a

provider of technology-enabled advertising services to advertisers. Liftoff Mobile

provides mobile online advertising services.

Комисия за защита на конкуренцията, Flutter Entertainment/Stars Group (269/16.04.2020, 16 April

2020).

Malta Competition and Consumer Affairs Authority, Flutter Entertainment/Stars Group (COMP-

MCCAA/03/2020, 18 February 2020).

Comisión Nacional de los Mercados y la Competencia, Flutter Entertainment/Stars Group (C/1094/20

12 Mar 2020, 12 March 2020).

Competition & Markets Authority, Flutter Entertainment/Stars Group (ME/6865/19, 31 March 2020).

Robertson, Merger review in digital and technology markets: Insights from national case law

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Horizontal theories of harm: The authority identified a horizontal overlap between

Liftoff Mobile and Vungle. However, it found that the transaction would raise no

competition concerns because this overlap was minimal and the parties’ combined market

share would be below 5%. In addition, a number of important competitors were present

on the market, including Google and Facebook, which would continue to exert important

competitive pressure.

Non-horizontal theories of harm: No relevant vertical relationship was identified.

Outcome: Unconditionally cleared in phase 1.

Remedies: NA

Noteworthy: In the eyes of the authority, the presence of Google and Facebook indicated

that the merged entity would be subject to intense competition.

(28) Italy: OEP 14 Coöperatief/Techedge (4 August 2020)

NCA: Autoritá Garante della Concorrenza e del Mercato

Case number: 28331

Concentration: OEP 14 Coöperatief, a private equity firm, proposed to acquire

Techedge, an Italian company active in the management and digitalisation of business

processes.

Horizontal theories of harm: Due to the low market shares of the undertakings involved,

both in the area of information technology and in the area of software services, and due

to the presence of important competitors, the authority did not consider any anti-

competitive effects to arise.

Non-horizontal theories of harm: NA

Outcome: Unconditionally cleared in phase 1.

Remedies: NA

(29) Malta: GVC Holdings/Ladbrokes Coral Group (21 March 2018)

NCA: Malta Competition and Consumer Affairs Authority

Case number: COMP-MCCAA/4/18

Concentration: GVC Holdings, a multinational sports betting and gaming group, wanted

to acquire the Ladbrokes Coral Group, a multinational multi-channel betting and gaming

company that operates betting shops as well as online betting and gaming. The markets

affected were found to be the national market for the provision of online fixed-odds

sportsbook betting services and the national market for the provision of online gaming

services.

Horizontal theories of harm: The authority found that the aggregate market share for

the supply of online fixed-odds betting services via sportsbook would be between 15-

25%. In online gaming services, the combined market share would amount to 25-35%.

Post-merger, a number of important competitors would continue constraining the merged

entity – some with the same or higher market shares than the latter. The authority also

noted that a substantial number of gaming licenses had been awarded and that many

international online gaming companies would be authorised to operate in Malta. It

described the market as dynamic with noticeable fluctuations.

Non-horizontal theories of harm: NA

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Outcome: Unconditionally cleared in phase 1.

Remedies: NA

(30) Netherlands: Sanoma/Iddink (28 August 2019)

NCA: Autoriteit Consument & Markt

Case number: ACM/19/035555

Concentration: Sanoma, a publisher of (digital) learning materials, wanted to acquire

Iddink, a distributor of (digital) learning materials and electronic learning environments

in secondary education

Horizontal theories of harm: NA

Non-horizontal theories of harm: The authority was concerned that the acquisition

could foreclose competitors of Iddink’s electronic learning environments by providing

preferential treatment or better compatibility with Sanoma products on the market for

issuing educational materials (input foreclosure). As a result, competitors would become

less effective, barriers to entry would be raised and opportunities for innovation would be

harmed. In view of the digital nature of the market and the need for further digitization in

the educational resource chain, this would have a negative impact on price, quality and

innovation.

On customer foreclosure regarding the issuance of educational materials, the authority

did not believe the merged entity would have an incentive to foreclose after the proposed

concentration.

The authority considered it plausible that Sanoma would have access to commercially

sensitive information from competitors after the proposed concentration, giving it an

advantage over its competitors and possibly impeding competition in the market for the

issuance of teaching materials in secondary education.

The authority found that the merged entity could not profitably implement a foreclosure

strategy through bundling based on the limited income resulting from such a foreclosure

strategy.

Overall, the authority found that the concentration would significantly impede effective

competition.

Outcome: Conditionally cleared in phase 2.

Conditions: To address the competition concerns it had identified, the authority cleared

the concentration subject to the following conditions: Sanoma would (i) grant publishers

access to the Magister

API under fair, reasonable and non-discriminatory (FRAND)

conditions, including the necessary information to enable the same link with Magister for

all publishers; (ii) provide information about Magister to publishers who request this

under FRAND conditions, if they provide similar information to Sanoma; (iii) implement

internal measures to ensure that Sanoma does not have access to competitively sensitive

information about other publishers; and (iv) conclude a service agreement with publishers

for the disclosure and use of digital learning resources of publishers via Magister, which

Thank you to Dániel Élő for providing a summary of this case, which was subsequently shortened by the

author of this Report.

Magister is an educational platform that provides a digital learning environment, student administration

functionalities and an app for students and parents; see Magister, <https://www.magister.nl/>.

Robertson, Merger review in digital and technology markets: Insights from national case law

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includes the option for publishers to have it established by means of their own audit that

the publisher in question gains access to the Magister API in a FRAND manner and a

dispute settlement procedure is to be arranged.

Noteworthy: After the Court of Rotterdam’s ruling partially setting aside the initial

decision,

the authority carried out additional investigations and retained the conditions

for the clearance of the acquisition.

On 12 July 2022, , the Trade and Industry Appeals

Tribunal (College van Beroep voor het Bedrijfsleven) ruled that the authority had rightly

cleared the transaction subject to conditions, and consequently upheld the authority’s

decision of 28 August 2019.

(31) Netherlands: DPG/Sanoma (10 April 2020)

NCA: Autoriteit Consument & Markt

Case number: ACM/19/038207

Concentration: DPG intended to acquire Sanoma. DPG was active in the field of news

media, including the publishing of newspapers and door-to-door papers, radio and online

services, including in the field of online job advertisements, price comparison and car and

technology websites and also on the Dutch radio market. The target was active in the field

of publishing a large number of magazines, offering online news and online services,

including comparison websites.

Horizontal theories of harm: The activities of the parties horizontally overlapped in the

provision of general (online) news and the provision of online advertising space.

Although DPG would become an important provider of unpaid general online news, it

would continue to experience competitive pressure from other (unpaid) online news

media (e.g., NOS, Mediahuis and RTL) and from other news channels such as print, radio

and TV. In addition, DPG had no incentive to degrade the quality of its unpaid general

online news offerings given the reach achieved with these offerings and the importance

of reach for (i) generating advertising revenue and (ii) referral to e-commerce services.

In terms of advertising space, the merged entity would only have limited market power

and would experience fierce competition from Google and Facebook. The authority

therefore did not expect any negative consequences for competition in this area.

Non-horizontal theories of harm: The authority investigated vertical as well as

conglomerate theories of harm, but concluded that the concentration was unlikely to

significantly impede effective competition. While DPG could use the concentration to

improve its position in paid general online news, such a strategy would not foreclose

competitors. DPG might also be able to bundle its activities on various markets with its

online advertising services, but the authority concluded that DPG would not have market

power in any advertising market that it could transfer to adjacent advertising markets.

Rechtbank Rotterdam, Sanoma/Iddink (ROT 19/5120, 4 March 2021), ECLI:NL:RBROT:2021:1766.

Autoriteit Consument & Markt, ‘After follow-up investigation, ACM still conditionally clears acquisition

of Iddink Group by Sanoma Learning’ (27 August 2021) <https://www.acm.nl/en/publications/after-

follow-investigation-acm-still-conditionally-clears-acquisition-iddink-group-sanoma-learning>.

College van Beroep voor het Bedrijfsleven, Sanoma/Iddink (21/467, 21/468 & 21/469, 12 July 2022),

ECLI:NL:CBB:2022:411.

Thank you to Dániel Élő for providing a summary of this case, which was subsequently shortened by the

author of this Report.

Robertson, Merger review in digital and technology markets: Insights from national case law

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Post-merger, DPG would also have the ability to use its position in unpaid general online

news to refer visitors to its own e-commerce activities, but again this would be unlikely

to foreclose competitors. This is because in online job and car advertisements, the

concentration would not lead to market power. Sufficient alternative channels would

remain available for recruiting visitors for providers of job and car advertisements. The

same was true for price comparison services, where placing hyperlinks from unpaid

general online news to price comparison services would not lead to foreclosure.

Outcome: Unconditionally cleared in phase 1.

Conditions: NA

Noteworthy: As in many other cases, the strong market position of Facebook and Google

in online advertising was seen as an important constraining factor on the merged entity.

(32) Netherlands: NS Groep/Pon Netherlands (20 May 2020)

NCA: Autoriteit Consument & Markt

Case number: ACM/20/038614

Concentration: NS Groep (NS) and Pon Netherlands (Pon) intended to set up a full-

function joint venture (JV) in the field of shared mobility through one central mobile

application and specific mobility hubs. NS was the largest provider of public transport by

train in the Netherlands and also offered shared bicycles at train stations under the OV-

fiets brand. Through a subsidiary, it offered shared (electric) bicycles, shared (electric)

cars and shared (electric) cargo bikes. Pon produced and imported means of transport

such as (electric) bicycles, (electric) scooters and cars. These constituted an important

input for the provision of such services. In addition, Pon was also active in the field of

partial transport services through other companies.

Horizontal theories of harm: The authority assessed a range of markets in which both

parties were active, including the provision of shared bicycles (NS, Hely

and Next

the provision of shared cars (Pon, Hely and Next) and the distribution of transport and

mobility services via an app (Hely and Next).

Concerning the provision of (e-)shared bicycles to the general public, the authority

concluded that competition would not be significantly impeded as Next’s offer was

largely aimed at private hubs, its market share added very little to the JV, and there was

competitive pressure from other parties in Amsterdam.

In relation to the provision of shared cars, the authority found that several factors

indicated that the JV would not significantly impede effective competition, namely the

low joint market share of the parties, the existing competitive pressure from other

suppliers of station-based shared cars, the (potential) competitive pressure from suppliers

of free-floating shared cars and the fact that the market was still in full development.

Concerning the (retail) market for the integrated provision of transport and mobility

services via an app, the authority found that this market was developing strongly. The JV

would experience competitive pressure from both local providers of transport modalities

Thank you to Dániel Élő for providing a summary of this case, which was subsequently shortened by the

author of this Report.

Hely was a subsidiary of NS.

Next Urban Mobility was a subsidiary of Pon.

Robertson, Merger review in digital and technology markets: Insights from national case law

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and from providers of integrated mobility services, leading the authority to conclude that

no anti-competitive effects would arise.

Non-horizontal theories of harm: The authority assessed a range of vertical

relationships. The authority believed that, due to the JV, NS would have both the ability

and the incentive to engage in a partial input foreclosure strategy regarding its train

services and the integrated provision of transport and mobility services via an app. This

could lead to (i) foreclosure of current providers of integrated mobility services via an

app, and (ii) raise barriers to entry into the national market for the integrated provision of

transport and mobility services via an app. Based on this, the authority believed that the

JV could result in a significant restriction of competition. The commitments submitted by

the parties removed this risk in the eyes of the authority (see below).

In terms of shared bicycles and shared cars, the authority concluded that it was not

plausible that NS would have the ability and incentive to implement a customer

foreclosure strategy vis-à-vis providers of bicycle-sharing and providers of car-sharing.

Outcome: Conditionally cleared in phase 1.

Conditions: To address the authority’s competition concerns, the parties offered to grant

(potential) competitors of the JV access to the application programming interfaces (APIs)

of the train and OV-fiets services on equal (commercial) conditions as these will made

available to the JV.

Noteworthy: In this case, vertical input foreclosure concerns alone led to the necessity

of commitments on the part of the notifying parties.

(33) Poland: 1&1 Internet/Home.pl (22 December 2015)

NCA: Urząd Ochrony Konkurencji i Konsumentów

Case number: DKK-216/2015

Concentration: 1&1, which belongs to the United Internet Group (UI) and offers cloud

computing services, proposed to acquire Home.pl on the national market for .pl national

domains (registration and operation), the national market for hosting services and the

national market for cloud computing.

Horizontal theories of harm: On the market for the .pl national domain (registration and

operation), the authority assessed the market shares of the merging parties and found that

as regards registration services, those were at 40-50%, while for operation services they

were at 30-40%. The target’s market share in both had recently dropped, while the main

competitor’s share of the market (Nazwa for registration services, Name for operation

services) was steadily increasing. Also, the HHI delta did not exceed 150, from which the

authority concluded that the likelihood of strengthening the market position of the merged

entity was very small. Post-merger, the merged entity would continue to be constrained

by other companies. Also, entry barriers were low, as was evidenced by 203 companies

that had the status of ‘NASK Partner’ (NASK stands for the Polish Research and

Academic Computer Network) in 2014, meaning they could provide registration and

operation services related to the national domain .pl.

Thank you to Klaudia Majcher for providing a summary of this case, which was subsequently shortened

by the author of this Report.

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On the market for hosting services, the merged entity would have a market share below

40% (the national dominance benchmark). The target’s market share was much larger

than the acquirer’s. Post-merger, market concentration would only increase

insignificantly and the merged entity would face competition from other companies.

The authority rejected the argument that the transaction would impair competition due to

the capital potential of UI. UI, which started to operate in Poland in 2010, had not

achieved any considerable market success and had not created a recognisable brand in

Poland despite its capital and significant advertising efforts. Hence, UI’s financial

position would not contribute to the strengthening of the merged entity’s position in a

way that could distort competition.

The authority also noted that entry barriers in both markets under investigation were low,

and switching rates indicated low customer loyalty.

In the national market for cloud computing, the aggregate market shares of both

companies were insignificant (0-5%), which is why it was not further investigated.

Non-horizontal theories of harm: The undertakings concerned did not operate in any

upstream or downstream market in which their individual or joint market shares would

exceed 30%. No markets were affected by the concentration in a conglomerate sense.

Outcome: Unconditionally cleared in phase 2.

Remedies: NA

(34) Portugal: Sonae/CTT - Correios de Portugal JV (19 July 2018)

NCA: Autoridade da Concorrência

Case number: Ccent. 27/2018

Concentration: Sonae and CTT - Correios de Portugal (Post Portugal) notified the

creation of a joint venture (JV) dedicated to the operation of an e-commerce platform for

the provision of intermediation services between traders and consumers. A number of

markets were affected, including the market for the provision of online marketplace

services, the market for online advertising and the markets for information technology

services, cybersecurity services and data analytics services.

Horizontal theories of harm: NA

Non-horizontal theories of harm: The JV would create a new player on the market for

the provision of online marketplace services, possibly leading to more diverse offerings

on that market. The authority noted that the main players on that market consisted of

Aliexpress, Amazon, eBay and Rakuten, all of which were B2C platforms with generalist

offerings. There were also non-generalist players, C2C platforms and non-transactional

platforms active on that market. While Sonae was active in online advertising, its market

presence was not significant. Also due to the strong market presence of Facebook and

Google on that market, the authority did not express competition concerns related to

online advertising.

The authority also assessed the presence of CTT on a number of markets related to an

online marketplace, such as logistics services, express delivery and payment processing.

Due to the low market shares, the authority generally considered that no competition

concerns would arise. It then considered the presence of Sonae on a number of vertically

related markets, including IT services and the retail sale of children’s clothing, sporting

Robertson, Merger review in digital and technology markets: Insights from national case law

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goods and consumer electronics. It concluded that Sonae would not be able to adopt any

strategy that would involve the termination or deterioration of supply conditions to

customers that operated on the same market as the JV (input foreclosure). It also held that

Sonae would not be able to foreclose the JV’s competitors by no longer reselling products

to competing marketplaces. Despite its relatively high market share in certain retail

markets (sporting goods, consumer electronics), there remained multiple competitors that

would constrain such a strategy of input foreclosure. Based on the ownership structure of

certain companies associated with Sonae, it was also unlikely that they would have an

incentive to adopt such a strategy to the benefit of the JV. Overall, the authority therefore

found that the JV would neither be able to nor have the incentive to engage in input

foreclosure of other marketplaces. Also, it found it unlikely that Sonae and CTT would

adopt a strategy of customer foreclosure by preventing Sonae’s competitors in various

markets from providing services to the JV or reselling its products on its marketplace.

This would prevent the success of a marketplace, which requires two market sides to

come on board.

Outcome: Unconditionally cleared in phase 1.

Remedies: NA

Noteworthy: The authority relied on two-sided market economics to explain why the

envisaged JV would not have an incentive to engage in customer foreclosure. It also drew

attention to market leaders Google and Facebook in online advertising.

(35) Romania: Dante International/PC Garage (24 November 2016)

NCA: România Consiliul Concurenței

Case number: 84/24.11.2016

Concentration: Dante International is a company that provides an online platform and

also acts as a retailer thereon (dual presence). It also provides electronics and IT products.

Dante wanted to acquire PC Garage, an online consumer goods retailer with a focus on

IT products and electronics.

Horizontal theories of harm: The authority found that the acquisition would serve to

further strengthen Dante’s market position, and would therefore significantly impede

effective competition in certain products.

Non-horizontal theories of harm: Dante’s vertical integration was noted by the

authority.

Outcome: Conditionally cleared in phase 1.

Remedies: In order to address the competition concerns raised by the authority, Dante

committed (i) to divest four online stores active in the non-food retail market (namely,

pcfun.ro, shopit.ro, garagemall.ro and electrofun.ro) as an ongoing concern, (ii) not to be

involved in the divested activities for at least 10 years.

This summary is based on the account of Raluca Dinu, ‘Romania’ in Daniel Mândrescu (ed), EU

Competition Law and the Digital Economy: Protecting Free and Fair Competition in an Age of

Technological (R)Evolution (XXIX FIDE Congress 2020) 451, 451-452; ‘Dante International, PC Garage

merger gets conditional Romanian approval’ MLex (29 November 2016)

<https://content.mlex.com/#/content/846719?referrer=search_linkclick>.

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(36) Romania: Glovoappro/Foodpanda (22 November 2021)

NCA: România Consiliul Concurenței

Case number: 86/22.11.2021

Concentration: Glovo wanted to acquire Foodpanda on the national market for online

food delivery platforms and the national market for online platforms for delivery of

multicategory consumer goods.

Horizontal theories of harm: The authority was concerned that the merged entity would

have a dominant position and would then be able to impose exclusivity clauses on

restaurants. While users tend to multi-home on this market, such exclusivity clauses

would reduce the beneficial effect of this multi-homing.

Non-horizontal theories of harm: NA

Outcome: Conditionally cleared in phase 1.

Remedies: In order to address the authority’s competition concerns, Glovo proposed not

to impose exclusivity obligations on restaurants. This included the following, more

detailed commitments: (1) not to impose an exclusive obligation on restaurants in current

or future intermediation agreements with restaurants, (2) not to contractually base the

level of commissions paid by restaurants on exclusivity, (3) not to penalise restaurants

for joining another online food ordering platform, and (4) not to renew the target’s

exclusivity obligations vis-à-vis restaurants.

(37) Slovenia: Sully System/CENEJE (12 April 2018)

NCA: Javna agencija Republike Slovenije za varstvo konkurence

Case number: 3061-27/2017-71

Concentration: With the contract on the sale of business shares, Sully System acquired

sole control over Ceneje, a company active in the market of online advertising through

search engines.

Horizontal theories of harm: NA

Non-horizontal theories of harm: In the proposed concentration there were vertical

overlaps as the online price comparison market in which Ceneje was present, is vertically

linked to the online retail market for non-food consumer goods, in which Sully System

operated. The authority first assessed the effects of the proposed concentration on the

online price comparison market (the upstream market) and then on the online retail market

for non-food consumer goods (the downstream market). The merged entity would have a

market share of more than 30% in at least one relevant market. Its main concerns were

twofold. First, the merged entity could engage in input foreclosure, especially by

discriminating between offers of online retailers and by using of non-objective search and

ranking algorithms of online retailers offers which would be preferential to the merged

entity. Secondly, the authority was also concerned with regard to the merged entity’s

access to commercially sensitive information regarding competitors’ activities in the

downstream market.

This summary is based on the summary provided on the Caselex Platform, <caselex.eu> (Remedies

Module).

Thank you to Martina Repas for providing a summary of this case, which was subsequently shortened by

the author of this Report.

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Outcome: Conditionally cleared in phase 1.

Remedies: To address these competition concerns, the parties offered the following

commitments to the authority: (i) Ceneje would not discriminate, either directly or

indirectly, between online retailer ads, in particular with regard to appearance and display,

(ii) Ceneje would maintain neutral and objective search and ranking algorithms used for

online retailers ads, (iii) Ceneje would maintain neutral and objective recommendations,

(iv) Sully System’s website would include a statement that Ceneje is a member of the

Rockaway Group, (v) Sully System would ensure that Ceneje meets all its obligations in

the proposed commitments, (vi) Sully System would provide historical price data to the

authority every six months for a period of 30 months.

The authority decided that the proposed commitments were appropriate and thus able to

eliminate the competition concerns.

Noteworthy: As in the Czech case of Rockaway Capital/Heureka,

a transparency

commitment was regarded as an important aspect to counter competition concerns.

(38) Slovenia: ECE/ELTUS PLUS (25 April 2019)

NCA: Javna agencija Republike Slovenije za varstvo konkurence

Case number: 3061-41/2018

Concentration: Under a contract for the sale and purchase of assets, ECE would become

the owner of ELTUS PLUS’s online store. ECE is a company dealing with the sale of

energy, and also offers online shopping services.

Horizontal theories of harm: In the proposed concentration there were horizontal

overlaps in the online non-food retail market, on which the undertakings concerned only

had negligible market shares.

Non-horizontal theories of harm: NA

Outcome: Unconditionally cleared in phase 1.

Remedies: NA

Noteworthy: In assessing the market shares of the undertakings concerned on the market

of online retail sale of non-food goods in Slovenia, the authority took into account only

competitors with a seat in Slovenia whose activities are exclusively the online retail sale

of non-food goods. Among these, it considered only those who offered products of all

those categories that are common to the online offers of the undertakings concerned.

(39) Slovenia: Shoppster/IDEO PLUS (24 April 2020)

NCA: Javna agencija Republike Slovenije za varstvo konkurence

Case number: 3061-9/2020-14

Concentration: Shoppster, owned by Slovenia Broadband in Luxembourg, acquired

100% of shares in IDEAL PLUS under a contract for the sale of shares. Shoppster was

Úřad pro ochranu hospodářské soutěže, Rockaway Capital/Heureka (ÚOHS-S0013/2016/KS-

21123/2016/840/DVá, 16 May 2016).

Thank you to Martina Repas for providing a summary of this case, which was subsequently shortened by

the author of this Report.

Thank you to Martina Repas for providing a summary of this case, which was subsequently shortened by

the author of this Report.

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established to provide retail services by mail order or online, while IDEO PLUS provides

online retail services.

Horizontal theories of harm: There was a partial horizontal overlap between the

activities of the associated undertaking of Shoppster and IDEO PLUS in the segment of

mobile phone sales. The authority found that the sale of mobile phones by these

undertakings was not substitutable: While IDEO PLUS sold mobile telephones over-the-

counter, the associated undertaking of Shoppster exclusively sold them through a range

of packages, i.e. by linking those sales to its mobile telephony services. IDEO PLUS also

sold mobile phones through its online store for non-food goods, while Shoppster’s

associated undertaking Telemach is a telecommunication operator that operates in the

market of telephony services, where it offered the option of buying mobile phones online.

Considering the market shares of the undertakings concerned, the presence of competitors

and low barriers to entry, the authority concluded that the proposed concentration would

not eliminate effective competition in the relevant market.

Non-horizontal theories of harm: NA

Outcome: Unconditionally cleared in phase 1.

Remedies: NA

(40) Slovenia: Allegro.eu/MIMOVRSTE (24 January 2022)

NCA: Javna agencija Republike Slovenije za varstvo konkurence

Case number: 3061-25/2021-6

Concentration: The subject of the concentration is the acquisition of the entire business

share in Mimovrste, which is fully owned by Mall Group, which is owned by EC

Investment, Bonak and Rockaway e-commerce. With the contract, the parties agreed that

Allegro.eu would buy 100% of the shares of Mall Group, and later the shares would be

transferred to Allegro.pl. Allegro.pl would eventually become the sole shareholder of

Mall Group, thus acquiring sole control over Mimovrste. Mimovrste provides retail

services by mail order or online. Its core business is managing an online store platform.

Allegro.eu is an online platform operating in Poland.

Horizontal theories of harm: In the proposed concentration there was a horizontal

overlap between the activities of the undertakings concerned. However, there was no such

overlap in the relevant Slovenian market, since Allegro.eu and its associated undertakings

did not operate in Slovenia. Consequently, the authority was of the opinion that the

proposed concentration would not have negative effects on competition in the food retail

market and in the non-food retail market in Slovenia, especially due to actual and potential

competition as well as low entry barriers.

Non-horizontal theories of harm: NA

Outcome: Unconditionally cleared in phase 1.

Remedies: NA

(41) Spain: Schibsted/Milanuncios (20 November 2014)

Thank you to Martina Repas for providing a summary of this case, which was subsequently shortened by

the author of this Report.

Robertson, Merger review in digital and technology markets: Insights from national case law

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NCA: Comisión Nacional de los Mercados y la Competencia

Case number: C/0573/14

Concentration: Schibsted, a multinational media group, wanted to acquire Milanuncios,

an online platform specialised in classified advertisements.

Horizontal theories of harm: The authority was concerned that this acquisition could

raise horizontal unilateral effects by strengthening Schibsted’s market power vis-à-vis

professional advertisers, which would be faced with price increases for classified

advertisements.

Non-horizontal theories of harm: NA

Outcome: Conditionally cleared in phase 2.

Remedies: In order to address the authority’s competition concerns, Schibsted would

allow a third party to exploit – on an exclusive basis – professional advertisements

displayed on the platform related to the motor segment of milanuncios.com. The merged

entity also had to give automatic access to professional advertisers’ data. The licensee

would also be allowed to redirect traffic to their own website. The exclusive license would

be valid for two years.

(42) Spain: Just Eat/La Nevera Roja (31 March 2016)

NCA: Comisión Nacional de los Mercados y la Competencia

Case number: C/0730/16

Concentration: Just Eat planned to acquire La Nevera Roja on the Spanish market for

the management of food orders at home via online platforms, accessed via internet or

mobile applications. While Just Eat had its seat in London, La Nevera Roja was founded

in Spain in 2010.

Horizontal theories of harm: The authority considered that this horizontal merger may

raise competition concerns because the acquirer and the target were close competitors and

constituted, pre-merger, the biggest and second biggest players on the market for the

management of food orders via online platforms. After the merger, they would have a

combined market share of about 70-80%, possibly even higher. In addition, several

companies had recently exited that market. The authority emphasised the importance of

network effects in these markets, and high barriers to entry consisting of investments to

be made in publicity and marketing. The authority was concerned that the merged entity

may have both the ability and the incentive to start implementing a strategy of exclusivity,

thus foreclosing competing platforms from access to restaurants (customer foreclosure).

Nevertheless, the authority also noted that online food delivery platforms only accounted

for 10% of the local food delivery markets in Spain, meaning that the market power of

these platforms over restaurants was overall limited. Restaurants also had the option of

opting for providing home delivery themselves, further restricting the platform’s market

power over it.

Non-horizontal theories of harm: NA

Outcome: Conditionally cleared in phase 1.

Remedies: In order to address the authority’s competition concerns relating to a possible

foreclosure of other food order platforms, Just Eat proposed the following commitments:

(1) not to impose exclusivity on restaurants (currently or in the future) affiliated with it;

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(2) no tying of commissions paid by affiliated restaurants (current or in the future) to an

exclusivity obligation; (3) no penalisation of affiliated restaurants (current or in the

future) for joining third platforms. The public documents did not state the duration of

these commitments. Just Eat further promised to communicate these commitments to its

affiliates within two weeks of them being accepted by the authority.

The authority considered that these commitments would severely limit Just Eat’s ability

to engage in exclusivity strategies, thus allowing restaurants to continue multi-homing.

Bearing in mind the expansive nature of the relevant market and different competitive

strategies employed by different platforms, the authority considered that the

commitments would allow the market to remain competitive.

Noteworthy: This acquisition involved a multinational acquiring a local competitor in a

market that has been uprooted due to digitalisation.

In the case of Just Eat Spain/Canary Delivery Company,

the authority emphasised that

the commitments accepted in Just Eat/La Nevera Roja had favoured market entry in Spain

for digital food order platforms and thus led to a more competitive market.

(43) Spain: Daimler/Hailo/MyTaxi/Negocio Hailo (24 November 2016)

NCA: Comisión Nacional de los Mercados y la Competencia

Case number: C/0802/16

Concentration: Daimler and Hailo wanted to jointly aquire MyTaxi and Hailo, which

enabled end users to hire taxi services online. The two businesses should be merged after

the joint acquisition. Markets affected included, among others, the Barcelona and Madrid

markets for intermediary services for contracting taxi routes or journeys through apps.

Horizontal theories of harm: Concerning horizontal unilateral effects, the authority

found that the concentration would significantly strengthen the market power of the

resulting entity, which combined two close competitors. It also considered that end users

could turn to other means for hailing a ride – radiotaxi, street hailing, third apps – that

constrained the resulting entity. Also, market penetration by the resulting entity was low

among end users (5%) and a little higher among taxis (20-30%). Taxis did not enter into

exclusivity contracts. Although the new entity would likely enjoy market power post-

merger, the authority considered that this was a dynamic market that had seen rapid

expansion, and there were no barriers to expansion despite the economies of scale and

network effects at work in this market. Therefore, no competition concerns would arise.

Non-horizontal theories of harm: NA

Outcome: Unconditionally cleared in phase 1.

Remedies: NA

Noteworthy: The characteristics of this particular digital market directly affected the

competitive assessment of the merger.

José Marino García García and Pablo Ibáñez Colomo, ‘Spain’ in Daniel Mândrescu (ed), EU Competition

Law and the Digital Economy: Protecting Free and Fair Competition in an Age of Technological

(R)Evolution (XXIX FIDE Congress 2020) 499, 500-501.

Comisión Nacional de los Mercados y la Competencia, Just Eat Spain/Canary Delivery Company

(C/1046/19, 10 September 2019).

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(44) Spain: Just Eat Spain/Canary Delivery Company (10 September 2019)

NCA: Comisión Nacional de los Mercados y la Competencia

Case number: C/1046/19

Concentration: Just Eat Spain, which started operating in 2010 and covers 95% of

Spanish territory with its digital platform for food orders, wanted to acquire the local

Canary Delivery Company, which provides an online food order management platform

in the Canary Islands.

Horizontal theories of harm: The authority found that while Just Eat would increase its

market share in the national market for the management of food orders at home via online

platforms, that increase would only be marginal. In addition, in the years preceding the

transaction Just Eat had continuously lost market share. The foreseen market entry of

Uber Eats and the consolidation of Deliveroo were also seen as indicators of a dynamic

market. The authority noted that these market entries occurred at a time when the

remedies from the transaction Just Eat/La Nevera Roja

were still in force, favouring

market entry in Spain.

In the local market for online food order management platforms, the transaction would

lead to an important increase in market share of 50-70%, leading to a market share of 80-

90%. Assessing the risk that the merging entity would raise prices or have the ability and

incentive to foreclose restaurants for competitors by entering into exclusivity contracts

with them, the authority considered that the recent and successful entry of competitor

Glovo in 2018 and the entry of Uber Eats in the summer of 2019 indicated that this was

not realistic. The authority also highlighted that the target had a very limited turnover and

only a single employee (the owner).

Non-horizontal theories of harm: NA

Outcome: Unconditionally cleared in phase 1.

Remedies: NA

Noteworthy: The authority emphasised that the remedies imposed in the case of Just

Eat/La Nevera Roja had favoured market entry in Spain for digital food order platforms

and had thus led to a more competitive market.

(45) Spain: MIH Food Delivery Holdings/Just Eat (5 December 2019)

NCA: Comisión Nacional de los Mercados y la Competencia

Case number: C/1072/19

Concentration: MIH Food Delivery Holdings, which is owned by Prosus, wanted to

engage in a hostile takeover of Just Eat on the national market for food order handling

through online platforms. MIH held several stakes in assets related to the digital consumer

home delivery sector, and in particular a minority share in Delivery Hero, an online food

delivery platform active in more than 40 countries (but not Spain). Delivery Hero,

however, also had a minority stake in Glovo, Spain’s second largest food delivery

platform.

Comisión Nacional de los Mercados y la Competencia, Just Eat/La Nevera Roja (C/0730/16, 31 March

2016).

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Horizontal theories of harm: Through the acquisition, MIH would go from only having

an indirect presence in Spain through its minority stake in Glovo to occupying an

important market share with Just Eat. This could lead to an incentive for MIH to prevent

Glovo’s expansion. In addition, MIH’s stakes in Glovo and Just Eat could also facilitate

coordination amongst these competitors.

Non-horizontal theories of harm: NA

Outcome: Conditionally cleared in phase 1.

Remedies: In order to address the authority’s competition concerns relating to non-

coordinated and coordinated effects, MIH proposed the following commitments: (1) MIH

would not obtain access to commercially sensitive information of either Delivery Hero or

Glovo; (2) MIH would not be able to influence Glovo’s strategy in markets where it

competes (or may compete) with Just Eat in Spain; (3) Delivery Hero (and Glovo) would

not be able to access commercially sensitive information of Just Eat. These commitments

would be binding for three years.

Noteworthy: Following on the heels of Just Eat’s acquisition of Canary Delivery, this

hostile takeover did not succeed as only an insignificant number of Just Eat shareholders

took MIH up on its final offer.

(46) Spain: Turnitin/Ouriginal Group (19 October 2021)

NCA: Comisión Nacional de los Mercados y la Competencia

Case number: C/1220/21

Concentration: Turnitin, an international provider of a wide range of software solutions

for the educational sector, wanted to acquire sole control over the Swedish Ouriginal

Group, which is only active on the market for plagiarism detection software.

Horizontal theories of harm: Following the acquisition, the merged entity would obtain

a market share of 50-60% on the Spanish market for anti-plagiarism software, with an

increase of 0-10% due to the acquisition. The next biggest competitor, Blackboard, had a

market share of 10-20%. On a European scale, however, Blackboard was the market

leader (20-30%), with Grammarly and the merged entity each having a market share of

about 10-20%. The authority found that a number of factors mitigated the risk of anti-

competitive effects, including the small size of the national market, the possibility of a

supranational market and the presence of competitors both in Spain and in the EEA –

where they had a larger market share. Also, the market share of Ouriginal both in Spain

and in the EEA was small, meaning that the additional market share gained by Turnitin

through the was is small. The authority also considered that this was an expanding market

without significant barriers to entry apart from the necessary investment to develop a

database. The Spanish authority also considered that the recent and successful market

entry by Google and Microsoft would exert competitive pressure on the merged entity.

‘Prosus Statement: Lapse of the Offer for Just Eat plc By Prosus N.V. Through Its Wholly-owned Indirect

Subsidiary MIH Food Delivery Holdings B.V.’ Businesswire.com (10 January 2020)

<https://www.businesswire.com/news/home/20200110005400/en/Prosus-Statement-Lapse-of-the-Offer-

for-Just-Eat-plc-By-Prosus-N.V.-Through-Its-Wholly-owned-Indirect-Subsidiary-MIH-Food-Delivery-

Holdings-B.V.>.

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Non-horizontal theories of harm: Although Ouriginal offered its product to third parties

so they could incorporate it into their integrated offerings, in the light of its low market

shares the authority considered that there was no risk of foreclosure effects due to the

merger. In the same vein, the authority did not consider conglomerate effects to arise.

Outcome: Unconditionally cleared in phase 1.

Noteworthy: The acquisition was also cleared in the UK

and in Australia.

The Spanish

authority regarded the recent market entry by Google and Microsoft as important

competitive pressure on the merged entity.

(47) Sweden: Swedbank Franchise/Svensk Fastighetsförmedling (16 December 2014)

NCA: Stockholms tingsrätt

Case number: T 3629-14

Concentration: Swedbank Franchise acquired Svensk Fastighetsförmedling, a real estate

agency. Swedbank Franchise’s subsidiary, Fastighetsbyrån, and Svensk

Fastighetsförmedling were the two most important players on the Swedish real estate

market and each other’s closest competitors. The dominant platform for real estate online

advertisements, Hemnet, was owned by Fastighetsbyrån (25%), Svensk

Fastighetsförmedling (25%) and two associations of real estate agents, where

Fastighetsbyrån and Svensk Fastighetsförmedling were members of one of them.

Horizontal theories of harm: The acquisition would create a dominant position on real

estate agency services in a large number of local markets in Sweden and result in a

significant impediment of competition. This aspect is not further analysed here.

Non-horizontal theories of harm: After the acquisition, Swedbank Franchise would

directly and indirectly (via one of the associations) strengthen its influence over Hemnet.

Swedbank Franchise would be able to change Hemnet’s business model. Not only did

Hemnet have high market shares, but it was also an unavoidable trading partner. Barriers

to entry for potential competitors were high, as Hemnet was owned by real estate agents

themselves and they would thus have no incentive to support a new platform. Hemnet

would have the ability and incentive to engage in input foreclosure vis-à-vis competing

real estate agents, eg by extracting monopoly profits or by engaging in price

differentiation. As Hemnet would strengthen its dominant position, the authority

concluded that this would significantly impede effective competition.

Outcome: Prohibited.

Remedies: Divestiture.

Noteworthy: Based on an application from the Swedish authority (Konkurrensverket),

the Stockholm District Court prohibited the concentration.

Because the individual turnover thresholds were not met, the concentration had not been

notified prior to its implementation. Later, a voluntary notification was submitted.

Competition & Markets Authority, Turnitin/Ouriginal (ME/6931/21, 26 July 2021).

Australian Competition and Consumer Commission, Turnitin/Ouriginal Group (25 November 2021).

This summary is based on Peter Forsberg, Xandra Carlsson and Sebastian Wiik, ‘Sweden, Overview of

merger control activity during the last 12 months’ in Nigel Parr and Catherine Hammon (eds), Merger

Control (5th edn, 2016) 191, 194-195; Björn Lundqvist, ‘Sweden’ in Daniel Mândrescu (ed), EU

Competition Law and the Digital Economy: Protecting Free and Fair Competition in an Age of

Technological (R)Evolution (XXIX FIDE Congress 2020) 517, 517-518.

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This was the first time a Swedish court prohibited a merger. While the parties initially

appealed the Stockholm District Court’s judgment before the Market Court, they

subsequently withdrew their appeal.

(48) Sweden: Hemnet/Blocket (2016)

NCA: Konkurrensverket

Case number: 84/2016

Concentration: Blocket, Sweden’s largest online marketplace that was also active in

digital property listings, wanted to buy Hemnet, the by far largest player in digital

property listings.

Horizontal theories of harm: As Blocket was the second largest player in digital

property listings – and Hemnet’s only credible competitor –, this proposed acquisition

was thought to give rise to horizontal unilateral effects through the creation of a single

major player on this market. The authority was concerned this would lead not only to

higher prices for digital property listings, but also to a decrease in quality of the products

and services provided and to increased barriers to entry and expansion.

Blocket pointed out that its acquisition would end the loyalty between real estate agencies

and Hemnet (on this, see the Swedbank Franchise/Svensk Fastighetsförmedling case),

thereby making this market considerably more competitive.

Non-horizontal theories of harm: NA

Outcome: Withdrawal.

Remedies: To address concerns related to horizontal unilateral effects, Blocket proposed

to grant an exclusive license to a smaller website (Bovision) for a certain period of time,

whereby Blocket would automatically refer users that were accessing its website for

properties sold through realtors to Bovision. This would have, in the acquirer’s view,

removed the horizontal overlap between Blocket and Hemnet. As Bovision was only a

very small player, the authority did not consider this an effective remedy.

In relation to real estate agencies, the remedies proposed by Blocket involved limitations

of sellers’ commitments to future advertising on Hemnet, a time-limited price cap for

advertisements, and further commitments. As the market test was overall negative, and

the authority did not believe this to be an effective remedy, the authority moved to block

the concentration.

Noteworthy: This acquisition was abandoned when it became clear to the parties that the

authority intended to apply to the court to prohibit the concentration.

(49) United Kingdom: Betfair Group/Paddy Power (17 December 2015)

NCA: Competition & Markets Authority

Case number: ME/6572/15

This summary is based on Sweden, ‘Agency decision-making in merger cases: from a prohibition

decision to a conditional clearance’ (3 November 2016) DAF/COMP/WP3/WD(2016)70, 4-5; Sweden,

‘Annual Report on Competition Policy Developments in Sweden’ (9 June 2017) DAF/COMP/AR(2017)16,

7; Lundqvist (n 58) 519-520.

Stockholms tingsrätt, Swedbank Franchise/Svensk Fastighetsförmedling (T 3629-14, 16 December

2014).

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Concentration: Paddy Power, an international multi-channel betting and gaming

company with an online as well as a brick-and-mortar presence in the UK, wanted to enter

into a merger with Betfair, an international online-only gambling operator. Markets

affected included the national market for the provision of online fixed-odds betting

services, the national market for the provision of online gaming services and the at-least

national market for the supply of betting exchange data

Horizontal theories of harm: The authority assessed whether the merger would lead to

less competitive fixed odds or prices on the market for online betting and gaming services.

For fixed-odds betting, it found that the parties were not each other’s closest competitors

and that a number of suppliers remained post-merger that would exercise a competitive

constraint on the merged entity.

For online gaming, it concluded that the merged entity’s combined share of supply would

be rather low, with at least three competitors having a higher market share, in addition to

the parties not being particularly close competitors.

Overall, the authority concluded that no horizontal unilateral effects should arise.

Non-horizontal theories of harm: The authority assessed whether, post-merger, the

merged entity could engage in input foreclosure related to the supply of exchange data.

However, it concluded that Betfair’s exchange data – while useful – did not constitute an

essential input, with plenty of alternative information sources available. Therefore, it

concluded that no vertical input foreclosure was likely to arise.

Outcome: Unconditionally cleared in phase 1.

Remedies: NA

Noteworthy: The Competition & Markets Authority relied on Google AdWord spending

in its analysis of whether the parties were close competitors. This merger was also

unconditionally cleared by the Ireland (case M/15/059).

The number of operators would

be reduced from eight to seven through the merger – this is often not the case when Big

Tech platforms are involved.

(50) United Kingdom: ZPG/Websky (29 June 2017)

NCA: Competition & Markets Authority

Case number: ME/6690/17

Concentration: ZPG, which owns a customer relationship management (CRM) software

for real estate agents as well as the online property portal Zoopla, acquired Websky,

which runs the CRM property software Expert Agent. Markets affected included the

national market for the supply of CRM property software, the national market for the

provision of services to estate agents and consumers through property portals, and the

national market for the automatic uploading of property information to property portals.

Horizontal theories of harm: The authority assessed whether the horizontal overlap in

the provision of CRM property software could lead to competition concerns. As the

merged entity would remain subject to a sufficient number of credible and effective

competitors on that market, it concluded that no anti-competitive effects would arise. Pre-

Competition and Consumer Protection Commission, Paddy Power/Betfair (M/15/059, 15 January 2016).

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merger, the CRM property software offered by the parties was not in particularly close

competition due to the differentiated nature of the offerings.

Non-horizontal theories of harm: The authority assessed whether the merged entity

could engage in input foreclosure of property portals in the vertical relationship between

online property portals such as Zoopla (downstream) and CRM property software

(upstream). In particular, it analysed whether the merged entity could degrade the quality

of the upload feed to property portals that are competing with Zoopla. However, the

authority concluded that the merged entity would not have the ability to adopt a

foreclosure strategy vis-à-vis rival property portals due to the high number of competitors

operating on the market.

Outcome: Unconditionally cleared in phase 1.

Remedies: NA

Noteworthy: As is pertinent in digital cases, the authority emphasised that an anti-

competitive effect didn’t necessarily need to relate to prices but could also consist in a

degradation of quality.

(51) United Kingdom: Blackbaud/Giving (8 September 2017)

NCA: Competition & Markets Authority

Case number: ME/6700/17

Concentration: Blackbaud (everydayhero) was in the process of acquiring Giving

(JustGiving), both of which operated online fundraising platforms (OFPs) in the UK.

Blackbaud also provided payment services and customer relationship management

(CRM) software for non-profit organisations (NPOs).

Horizontal theories of harm: JustGiving is the UK’s leading OFP, while everydayhero

is a smaller and lesser-known OFP. The increment in market share through the merger

was limited, and everydayhero was not an important competitive constraint on

JustGiving. However, a significant number of competitors were active on the market for

direct OFPs (especially Virgin Money Giving, BT MyDonate) that would continue to

constrain the merged entity’s market power.

Non-horizontal theories of harm: In terms of conglomerate effects, the authority

assessed whether, post-merger, the merged entity could link its CRM software for NPOs

with its OFPs, thereby foreclosing competitors in CRM software for NPOs or in OFPs. It

concluded that, in general, CRM software for NPOs and OFPs were not complements and

it would be difficult for the merged entity to engage in a foreclosure strategy. Customers

did not usually buy these two products from a single source, nor at the same time.

Relating to the possibility that the merged entity could foreclose CRM competitors by

bundling its CRM and OFP offerings, the authority found that Blackbaud had previously

and unsuccessfully tried such a strategy. In addition, a discounted bundle could be pro-

competitive, as long as CRM competitors were not forced out of the market. Therefore,

the authority concluded that no conglomerate foreclosure concerns arose.

Concerning the possibility that the merged entity could foreclose CRM or OFP

competitors by reducing the quality of data integration either between competing OFPs

and Blackbaud’s CRM software or between competing CRM software and the merged

entity’s OFPs, the authority underlined that improving data integration between

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Blackbaud’s CRM and its future OFPs would be pro-competitive. In addition, customers

did not choose CRM software based on how well it integrated with one tool, leading the

authority to conclude that the merged entity would not have the ability to engage in such

a foreclosure strategy.

Outcome: Unconditionally cleared in phase 1.

Remedies: NA

Noteworthy: In the face of multiple competitors active on a relevant market, the NCA

regarded improved data integration as a pro-competitive aspect of the merger at issue.

(52) United Kingdom: Just Eat/Hungryhouse (16 November 2017)

NCA: Competition & Markets Authority

Case number: ME/6659-16-II

Concentration: Just Eat, a major online food ordering platform, wanted to acquire

Hungryhouse, another online food ordering platform and subsidiary of Delivery Hero.

Such food ordering marketplaces are an intermediary between consumers and restaurants.

Horizontal theories of harm: As the market for online food ordering platforms had

become more concentrated in the years preceding the acquisition, the authority analysed

whether it might give rise to horizontal unilateral effects. The merged entity would have

a market share of 80% in UK online food ordering platforms, with an increment of under

10% due to the acquisition. However, ordering and logistics specialists also constrained

competition on that market. Already pre-merger, Hungryhouse had only posed a limited

competitive constraint on Just Eat, and had been loss-making for years. The authority also

expected this sector to be dynamic, with new competition on the horizon. Therefore, it

did not believe that horizontal unilateral effects would arise.

Non-horizontal theories of harm: NA

Outcome: Unconditionally cleared in phase 2.

Remedies: NA

Noteworthy: Just Eat’s M&A activity also gave rise to several merger cases in Spain.

(53) United Kingdom: Moneysupermarket.com/Decision Technologies (7 August

2018)

NCA: Competition & Markets Authority

Case number: ME/6749/18

Concentration: Moneysupermarket.com agreed to acquire Decision Technologies. Both

parties supply digital comparison tool services for mobile and home communications

switching. Decision Technologies also operates upstream, providing white label and

application programming interface (API) services to providers of digital comparison

tools.

Comisión Nacional de los Mercados y la Competencia, Just Eat/La Nevera Roja (C/0730/16, 31 March

2016); Comisión Nacional de los Mercados y la Competencia, Just Eat Spain/Canary Delivery Company

(C/1046/19, 10 September 2019); Comisión Nacional de los Mercados y la Competencia, MIH Food

Delivery Holdings/Just Eat (C/1072/19, 5 December 2019).

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Horizontal theories of harm: While this horizontal merger involved two of the more

important competitors on the market for digital comparison tool services for mobile and

home communications switching with a combined share of supply of 25-30%, a sufficient

number of competitors would remain active on that market as well as through other

switching routes that would restrain the merged entity. Also, the merging parties were not

particularly close competitors. In particular, uSwitch as the market leader for home

communications switching would continue to provide an important competitive

constraint.

Non-horizontal theories of harm: The authority assessed whether the merged entity

might engage in a vertical input foreclosure strategy by foreclosing the supply of white

label and API services for the use by digital comparison tool providers. White label

services were considered an important input. However, such a strategy could lead to

switching away from the merged entity – but also to a revenue gain for the merged entity

where customers switch to the merged entity’s own digital comparison tool. While a

number of alternative white label service providers operate on the market, Decision

Technologies was the market leader and no entry was on the horizon, meaning that it had

at least some ability to engage in such a foreclosure strategy. The authority then assessed

a number of factors that would curtail the merged entity’s incentive to foreclose, and

found that this strategy would not be profitable. For this reason, it concluded that no

competition concern would arise based on vertical input foreclosure.

Outcome: Unconditionally cleared in phase 1.

Remedies: NA

(54) United Kingdom: eBay/Motors.co.uk (12 February 2019)

NCA: Competition & Markets Authority

Case number: ME/6774/18

Concentration: eBay agreed to acquire Motors.co.uk. Both parties supply online

classified vehicle advertising services. eBay has two brands dedicated to this business:

eBay Motors and Gumtree Motors.

Horizontal theories of harm: The authority assessed possible horizontal unilateral

issues. It found that although the merging parties offered relatively similar online

classified vehicle advertising services, they were not each other’s closest competitors. In

addition, there was only a limited increment in the merged entity’s market position

through the merger. Autotrader was a closer competitor that constrained both parties, and

CarGurus had been gaining market share and competed aggressively. Overall, this led the

authority conclude that no competition concerns would arise.

Non-horizontal theories of harm: NA

Outcome: Unconditionally cleared in phase 1.

Remedies: NA

Noteworthy: In terms of the closeness of competition, it is possible that a number of

digital merger cases underestimate the network effects and the impact of digital

ecosystems on this analysis.

(55) United Kingdom: PayPal/iZettle (12 June 2019)

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NCA: Competition & Markets Authority

Case number: ME/6766/18-II

Concentration: PayPal, a technology platform company that provides online and offline

payment services, acquired iZettle, a financial technology company providing (primarily

offline, but to a limited extent also online) payment services to small businesses. In the

UK, the companies overlapped in the provision of offline payment services through

mobile point of sale (mPOS) services, a relatively new technology that involves a card

reader and an app that allows merchants to accept card payments.

Horizontal theories of harm: The authority underlined that mPOS was a fast-moving

and dynamic market in which a particular emphasis had to be put on future competition.

However, it also found that traditional point of sale providers significantly constrained

mPOS providers, and that there were a whole range of such competitors (including

Worldpay, Barclaycard, Shopify). Also, two further major providers of mPOS (Square,

SumUp) continued to operate on the market.

The authority also considered whether iZettle would have developed an omni-channel

offer competing with PayPal’s service, leading to a situation in which potential

competition was eliminated. It concluded, however, that absent the merger, iZettle was

likely to have focused on its core business rather than on developing an omni-channel

service.

Non-horizontal theories of harm: NA

Outcome: Unconditionally cleared in phase 1.

Remedies: NA

(56) United Kingdom: Salesforce.com/Tableau Software (22 November 2019)

NCA: Competition & Markets Authority

Case number: ME/6841/19

Concentration: Salesforce acquired Tableau Software. Both parties supply business

intelligence (BI) software, and in particular modern BI software making use of artificial

intelligence and business analytics. Salesforce also offers a customer relationship

management (CRM) platform that integrates with third-party products.

Horizontal theories of harm: As the parties were not close competitors, and a number

of BI suppliers remained on the market that would exert a competitive constraint on the

merged entity, the authority did not think that any horizontal unilateral effects would

arise.

Non-horizontal theories of harm: The authority assessed two conglomerate theories of

harm related to foreclosure. First of all, it assessed whether the merged entity could

foreclose competing BI software providers through technical restrictions or

bundling/tying of CRM products with BI products. While the merged entity could have

the ability to pursue such a foreclosure strategy, there was no incentive to do so. Second,

the authority considered whether the merged entity could foreclose competing CRM

software providers through technical restrictions or bundling/tying of BI products with

CRM products. The authority emphasised that a BI tool was more valuable when it

connected to multiple data sources, and in any case the costs would outweigh the benefits

for the merged entity.

Robertson, Merger review in digital and technology markets: Insights from national case law

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Outcome: Unconditionally cleared in phase 1.

Remedies: NA

Noteworthy: In Austria, Salesforce was fined €100,000 for gun jumping in the same

merger case.

Considering the integration or improvement of interoperability within a

merged entity’s services, the issue regularly arises that such behaviour can prove pro-

competitive, while at the same time further entrenching a dominant company’s market

power. Here it appears that competition authorities are called upon to make a nearly

impossible choice. Further research into this issue is required.

(57) United Kingdom: Tobii/Smartbox (15 August 2019)

NCA: Competition & Markets Authority

Case number: ME/6780/18-II

Concentration: Tobii had acquired Smartbox Assistive Technology and Sensory

Software International (together: Smartbox). Both produce augmentative assistive

communication (AAC) solutions, i.e., communication aids for those that find

communication difficult, eg due to a disability or a medical condition. AAC solutions

consist of AAC hardware, AAC software, access means (e.g., a switch, an eye gaze

camera), and customer support. Markets affected included the national market for supply

of dedicated AAC solutions, the global market for upstream supply of AAC software and

the equally global market for upstream supply of eye gaze cameras in AAC.

Horizontal theories of harm: The authority considered that the main horizontal overlap

between acquirer and target occurred in the supply of dedicated AAC solutions. It did not

accept the argument that the providers faced strong competition from AAC solutions

based on mainstream consumer devices because this was not consistent with its market

analysis nor with internal documents of the parties outlining their competition. Prices for

dedicated AAC solutions had remained constant over preceding years, and qualitative

evidence also pointed to a lack of such competition.

The authority assessed the possibility of horizontal unilateral effects, particularly as

regards price increases, quality deterioration and a reduction in the range of services

and/or product development. It emphasised that, pre-merger, the parties had been close

competitors and competition among them had led to increased innovation and R&D. The

closeness of competition was also supported by diversion ratios between Tobii and

Smartbox products. The merged entity now had a market share of 60-70% in the UK and

competitors did not provide a sufficient constraint on the merged entity. The authority

emphasised that part of the merger strategy was indeed to reduce the range of products

available as well as R&D.

Non-horizontal theories of harm: The authority assessed three vertical theories of harm

relating to possible foreclosure effects.

Concerning a possible input foreclosure of Smartbox’s Grid software, the authority found

that the merged entity would likely have both the ability and incentive to rely on its strong

market position in AAC software in order to foreclose downstream competitors, eg by

making their access to its popular software more expensive or of lower quality. This is

Kartellgericht, 22 April 2021, 27 Kt 9/21g – Tableau/Salesforce.

Robertson, Merger review in digital and technology markets: Insights from national case law

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enabled by downstream competitors being unable to switch away from Smartbox’s

software due to consumer demand. The merger, according to the authority, increased the

incentive to engage in such a foreclosure strategy. This would, in the end, harm consumers

and end users.

Relating to a possible customer foreclosure of competitors to Tobii’s eye gaze camera,

the authority found that the merged entity would likely have both the ability and incentive

to limit the compatibility of eye gaze cameras produced by competitors with Smartbox’s

software. This strategy would be profitable, as dedicated AAC solution providers were

not very likely to switch to an alternative software in order to use an alternative eye gaze

camera. This foreclosure strategy would lead to lower innovation in eye gaze cameras

and higher prices, and thus affect AAC solutions overall.

Finally, the authority assessed possible input foreclosure of Tobii’s eye gaze cameras but

found that it was unlikely that the merged entity would make access to Tobii’s eye gaze

cameras more expensive, because of alternatives available on the market. There would

also be a lack of incentives for such a strategy, as this might lead to switching to

alternative eye gaze cameras rather than switching to the merged entity’s dedicated AAC

solutions.

The authority emphasised that the market was not very dynamic, with no evidence of

recent successful entry or expansion and buyer power not very strong.

Outcome: Prohibited in phase 2.

Remedies: Tobii had proposed two different sets of remedies to the authority, with a

structural element to address the horizontal competition concerns and a behavioural

element to address the vertical competition concerns. Concerning the structural element,

Tobii proposed to divest Smartbox’s AAC hardware business (partial divestiture) and to

keep Smartbox’s AAC software business, while granting the buyer a perpetual license for

Smartbox’s popular software on FRAND terms as well as allowing it to resell Tobii’s eye

gaze cameras. However, the authority concluded that these would not effectively address

the competition concerns it had identified, based on a risk framework including

specification risks, circumvention risks, distortion risks and monitoring and enforcement

risks. Based thereon, the authority concluded that the proposed remedies would not fully

address these risks and would only have a limited impact in addressing the competition

concerns identified. Full divestiture was regarded as the only effective remedy available.

Noteworthy: In case 1332/4/12/19, the Competition Appeal Tribunal upheld the

Competition and Markets Authority’s divestiture decision on all but one ground.

particular, the Competition Appeal Tribunal agreed with Tobii that the authority had not

provided sufficient evidential basis for its concern relating to partial input foreclosure. In

another judgment, Tobii was not granted permission to appeal that decision.

Tobii has

since divested Smartbox.

Tobii/Smartbox, [2020] CAT 1, 10 January 2020.

Tobii/Smartbox, [2020] CAT 6, 17 February 2020.

‘Tobii divests Smartbox’ (6 October 2020) <https://www.tobii.com/group/news-media/press-

releases/2020/10/tobii-divests-smartbox/>.

Robertson, Merger review in digital and technology markets: Insights from national case law

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The relevant market underlying the authority’s analysis is noteworthy, as the authority

considered both a cluster market (dedicated AAC solutions) as well as the individual

components of the latter.

(58) United Kingdom: Google/Looker (13 February 2020)

NCA: Competition & Markets Authority

Case number: ME/6839/19

Concentration: Google, a global technology company, acquired Looker, a provider of

business intelligence (BI) tools, ie software that supports corporate decision-making by

analysing, visualising and interpreting business data. Google operates both GDS, a free

BI tool that is interoperable with Google’s many products and services, and GBQ, a

cloud-based data warehouse. Google’s products are not currently interoperable with

leading rival data warehouses (e.g., provided by Amazon, Microsoft, Oracle, Snowflake

and others). Looker’s BI tools interoperate with over 45 data warehouses.

Horizontal theories of harm: The authority assessed whether the loss of competition by

an actual competitor would raise competition concerns. It found that the market for BI

tools was very competitive and dynamic, and customers tended to multi-home. In

addition, the merged entity had a low combined share of supply, with customers not

regarding GDS as a viable alternative to Looker. Post-merger, there were also significant

competitive constraints present on the market. The authority concluded that the merger

did not raise competitive concerns in this regard.

Non-horizontal theories of harm: The authority assessed whether the merged entity

could engage in a partial foreclosure strategy based on Google’s substantial market power

in web analytics and online advertising. As Google generates a wealth of data, the

authority assessed whether Google could restrict competing BI tool providers from access

to Google-generated data. It found that Google would indeed have the ability to engage

in such an input foreclosure strategy: it is important to many businesses to be able to

analyse Google-generated data, Google has market power in web analytics and online

advertising and can offer a combined product (possibly further enhancing its market

power), and it could implement various price- and non-price-based foreclosure

mechanisms to restrict access to Google-generated data. However, the authority did not

consider that Google had an incentive to engage in such a strategy, and its internal

documents did not reveal any plans to carry out such a strategy. Switching by customers

may to some extent hamper the profitability of such a strategy. Targeting individual

competing BI tools with such a strategy would also be costly.

Outcome: Unconditionally cleared in phase 1.

Remedies: NA

Noteworthy: The Competition & Markets Authority investigated a number of mergers in

business intelligence tools, including Salesforce/Tableau Software (2019)

and

Google/Looker (2020). This could indicate an ongoing concentration of this market.

(59) United Kingdom: Sabre/Farelogix (9 April 2020)

Competition & Markets Authority, Salesforce.com/Tableau Software (ME/6841/19, 22 November 2019).

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NCA: Competition & Markets Authority

Case number: ME/6806/19-II

Concentration: Sabre, a US company providing technology solutions to airlines and

travel agents, intended to acquire Farelogix, another US company supplying technology

solutions for airlines.

Horizontal theories of harm: The authority assessed whether the acquisition would raise

horizontal unilateral effects in the supply of merchandising solutions or distribution

solutions to airlines. Issues raised included slower rates of innovation and product

development, reduced product range or quality, and higher prices or less favourable terms

of service.

While Farelogix was a strong player in merchandising solutions for airlines, Sabre was

not (yet). However, the authority considered that Sabre would become a strong competitor

absent the acquisition. Post-merger, only one strong competitor would remain, namely

Amadeus. The loss of competition resulting from the acquisition would be significant.

As regarded distribution solutions for airlines, the authority noted that the product

offerings by the merging parties were differentiated, and that there were several

competitors that posed a credible competitive constraint. Overall, however, it concluded

that Farelogix would play an important role in that market absent the merger, and the loss

of competition resulting from the acquisition would be significant, with a substantial and

long-lasting impact on consumers.

Non-horizontal theories of harm: NA

Outcome: Prohibited in phase 2.

Remedies: The parties offered commitments to the authority, which included (i) making

Farelogix’s FLX Services available at the same or lower prices to those at the time,

including levels of support, for an agreed-upon period of time, (ii) offering all current

Sabre GDS

customers and all current FLX OC customers the opportunity to extend their

existing contract on the same terms for a period of at least three years, (iii) to continue

investing in the development of FLX Services capabilities at levels no less than current

levels, for an agreed-upon period of time, and (iv) to continue to offer and support FLX

Services capabilities to any third parties and all outlets that wish to use them to connect

to Sabre, other GDSs, other distribution partners, or directly to travel agents on an

agnostic basis, for an agreed-upon period of time.

The authority concluded, however, that the parties’ remedies proposal did not manage to

weigh up the loss of competition that would result from Farelogix no longer being an

independent player that competes to meet airlines’ evolving needs. It thus regarded the

prohibition of the merger as the only effective remedy.

Noteworthy: The Competition Appeal Tribunal dismissed Sabre’s appeal of the

decision.

As a result of this case, the merger was terminated on 1 May 2020.

In the

United States, the Department of Justice equally sought to prohibit the merger and called

it ‘a dominant firm’s attempt to eliminate a disruptive competitor after years of trying to

Global Distribution System.

Sabre/Farelogix, [2021] CAT 11, 21 May 2021.

‘Sabre and Farelogix $360m merger deal cancelled’ (1 May 2020) <https://www.phocuswire.com/sabre-

farelogix-merger-terminated>.

Robertson, Merger review in digital and technology markets: Insights from national case law

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stamp it out.’

While this case was cleared by a US District Court in a rather controversial

judgment,

the case was subsequently vacated because the parties had abandoned their

merger.

(60) United Kingdom: Amazon/Roofoods (4 August 2020)

NCA: Competition & Markets Authority

Case number: ME/6836/19-II

Concentration: Amazon wanted to acquire a 16% minority shareholding and certain

rights (including board representation) in Roofoods, which operates restaurant delivery

platform Deliveroo. This transaction occurred on the national market for the supply of

online restaurant platforms. The authority did not consider Deliveroo to be a failing firm.

Horizontal theories of harm: Following a referral for further investigation, the authority

mainly considered horizontal effects that could arise in the form of a loss of potential

competition as a result of the transaction. It emphasised that Amazon had previously had

a market presence in online restaurant platforms in the UK (2016-2018). The authority

assessed whether it would be likely – absent the transaction – that Amazon would re-enter

that market. It indicated that Amazon’s global strategy to promote and grow Prime could

fit with re-entering this market. Internal documents showed that Amazon regards

restaurant delivery as an integral part of its food strategy. The authority concluded that

this indicated a strong and continued interest by Amazon in the online restaurant

platforms market, in which it could benefit from its vast logistics expertise. Amazon could

either build its own offering, acquire or invest in an existing platform, or partner with one.

The authority then asked whether Amazon would be likely to re-enter the market in the

absence of the merger, and whether such entry would lead to greater competition. The

fact that Amazon would only acquire a 16% shareholding in Deliveroo, rather than a

larger stake, was particularly emphasised. Two scenarios were assessed by the authority:

Concerning (i) unilateral effects on the entry decision, the authority concluded that based

on mixed evidence it was not sufficiently likely that Amazon’s 16% stake in Deliveroo

would keep it from re-entering the market in the face of strong financial incentives to do

so. Regarding (ii) post-entry unilateral effects, the authority considered what could occur

should Amazon re-enter the market. While Amazon could adopt a strategy to compete

less aggressively to internalise Deliveroo’s profits, the authority concluded that the 16%

stake in Deliveroo would not provide a strong enough incentive for this theory of harm

to be credible or to influence market outcomes. Also, Amazon could encourage Deliveroo

to compete less aggressively against it. However, the authority considered that there was

Sabre/Farelogix, Complaint in Case 1:19-cv-01548-UNA (20 August 2019).

US v Sabre/Farelogix, 452 F. Supp. 3d 97 (D. Del. 2020). That court applied two-sided market theory in

a way that does not correspond to market realities (see p 136), holding that two-sided platforms cannot

compete with one-sided market offerings based on Ohio v American Express, 138 S. Ct. 2274, 2285 (2018).

As the Department of Justice explained when asking the US Court of Appeals for the Third Circuit to

vacate the District Court judgment, it also did so because that judgment’s pronouncements regarding

competition among one- and two-sided businesses would have too much of a bearing on future antitrust

cases; US Department of Justice’s Motion to Vacate, Case No. 20-1767 (12 May 2020). The District Court’s

judgment was vacated on 20 July 2020.

Robertson, Merger review in digital and technology markets: Insights from national case law

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strong competition between Deliveroo, Uber Eats and Just Eat, limiting Deliveroo’s scope

to compete less vigorously.

The authority also considered possible horizontal unilateral effects in the supply of online

convenience grocery (OCG) shopping. The authority considered the offerings by Amazon

and Deliveroo in OCG to be quite differentiated, and also listed a range of competitors

on that market, including online restaurant delivery providers (e.g., Just Eat, Uber Eats),

traditional grocers and convenience stores (e.g., Waitrose, Sainsbury’s, Co-op), as well

as grocery delivery specialists (e.g., Ocado). Further expansion was to be expected, also

against the background of Covid-19. As a first theory of harm, it assessed (i) Amazon’s

ability to discourage Deliveroo from competing against Amazon in OCG. It then asked

(ii) whether Amazon could protect its investment by avoiding direct competition with

Deliveroo in OCG. In both cases, it concluded that while Amazon would have material

influence on Deliveroo, its 16% stake would not allow it to set Deliveroo’s policies single-

handedly, and outside competition would constrain it in doing so. Finally, the authority

assessed (iii) whether Amazon could rely on Deliveroo for its presence in OCG rather

than developing its own service. Here, it was also considered that Amazon might regard

the transaction as a first step towards full acquisition of the target. Viewed within the

broader context of the OCG market, the authority concluded that other competitors were

well-placed to compete in the OCG market and no substantiated competition concerns

would arise.

Non-horizontal theories of harm: Already in phase 1, the authority had dismissed a

possible bundling of Amazon Prime and Deliveroo Plus, ie the latter’s subscription

service, as there would be no sufficient incentive to do so.

Outcome: Unconditionally cleared in phase 2.

Remedies: NA

Noteworthy: This is a rare case in which the authority assessed whether the loss of

potential competition could lead to competition concerns. It was primarily due to the low

stake of 16% that the concerns were dismissed. The case is a good indication that in the

case of platform mergers that involve an important ecosystem orchestrator, attention also

needs to be paid to (even loosely) connected markets (potentially) served by the digital

ecosystem in question.

(61) United Kingdom: Pug/StubHub (2 February 2021)

NCA: Competition & Markets Authority

Case number: ME/6868/19-II

Concentration: Pugnacious Endeavors, which trades as viagogo, is a global provider of

online exchange platforms for buying and selling tickets to live events. It acquired

StubHub, which is owned by eBay, and is a global provider of online exchange platforms

for buying and selling tickets to live events; it is the largest secondary ticketing platform

in the world.

Horizontal theories of harm: The authority focused on horizontal effects between two

close competitors that made up between 90-100% of the relevant market post-merger.

The merger resulted in an increment in the range of 30-40%. While viagogo had high

market shares for a number of consecutive years, StubHub had shown strong growth in

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previous years. There was no meaningful competitor on the market for secondary

ticketing platform services in the UK. The platforms operated in similar ways, and

invested heavily in advertising. viagogo was found to bid ‘on a sizeable proportion of

StubHub’s keywords’, indicating close competition among them. Resellers regarded the

parties as substitutes, and regularly multi-homed. Ticketing platforms on the primary

market, such as Ticketmaster, were not regarded as a viable alternative in many instances,

and therefore did not constitute a competitive constraint. Neither non-specialist online

channels nor social media or offline channels were regarded as viable alternatives to

secondary ticketing platforms.

Non-horizontal theories of harm: NA

Outcome: Conditionally cleared in phase 2.

Remedies: The authority required a partial divestiture of StubHub, namely of the

StubHub International business (ie, StubHub outside of North America). This was

regarded as the only effective remedy for this completed transaction.

Noteworthy: The authority considered advertising spend on a competitor’s keywords to

assess closeness of competition. StubHub International was subsequently acquired by

Digital Fuel Capital.

(62) United Kingdom: Adevinta/eBay Classifieds Group (16 February 2021)

NCA: Competition & Markets Authority

Case number: ME/6897/20

Concentration: Adevinta agreed to acquire the eBay Classifieds Group (eCG) from

eBay, while eBay agreed to acquire 33.3% of voting rights (44% of economic interest) in

Adevinta. Schibsted was the majority shareholder in Adevinta; its voting rights would be

reduced to 39.5% post-merger (33.1% of economic interest). Adevinta provides online

classified advertising services (Shpock; MB Diffusion). eCG provides online classified

advertising services (Gumtree; Motors.co.uk), and eBay operates the online marketplace

eBay.co.uk. The merger affected the markets for the supply of online generalist classified

advertising services and C2C online marketplaces and the market for the supply of online

classified advertising platforms and online marketplaces for motor vehicles, among

others. The authority found that generalist online classified advertising services (such as

Adevinta’s Shpock and eCG’s Gumtree) were in the same relevant market as online

marketplaces (e.g., eBay Marketplace).

Horizontal theories of harm: The authority was concerned that the merger would lead

to a substantial lessening of competition due to horizontal unilateral effects, risking less

choice and innovation as well as higher fees. It found eBay Marketplace to be the largest

platform on the market, over twice the size of its next biggest competitor (ie, Facebook

Marketplace). Gumtree was third or fourth (depending on the metric), while Shpock was

relatively small but had recently increased its competitive constraint on eBay

Marketplace. The parties’ platforms were close competitors (either actual or potential).

Competition & Markets Authority, ‘Merger investigation into the Completed acquisition by PUG LLC

(viagogo) of the StubHub business of eBay Inc.’ (8 September 2021)

<https://assets.publishing.service.gov.uk/media/61379adfe90e07044435c8d0/Viagogo_StubHub_Case_cl

osure_summary.pdf>.

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The authority also found that under eBay’s ownership, Gumtree had not competed as

aggressively as it could have. It reasoned that part of eBay’s motivation to sell Gumtree

to Adevinta consisted in eBay continuing to exercise some influence on that platform.

Non-horizontal theories of harm: NA

Outcome: Conditionally cleared in phase 1.

Remedies: In order to address the horizontal unilateral theories of harm identified by the

authority, the parties proposed the following commitments: (i) divestiture of Gumtree UK

(incl Motor.co.uk) on a debt-free basis, (ii) divestiture of Shpock to RussMedia Equity

Partners on a debt-free basis, (iii) provision of transitional services in relation to Shpock

and Gumtree UK. The authority accepted these commitments.

Noteworthy: This concentration was also cleared subject to conditions in Austria,

although the conditions – due to different online classified advertising platforms

operating on that geographic market – were different. Germany unconditionally cleared

this transaction.

(63) United Kingdom: Uber International/GPC Computer Software (29 March 2021)

NCA: Competition & Markets Authority

Case number: ME/6903/20

Concentration: Uber, a provider of ride-hailing services, wanted to acquire GPC

Computer Software (Autocab), a company that (i) develops and supplies booking and

dispatch technology (BDT) enabling taxi companies to connect drivers to end customers,

and that (ii) operates the iGo network that connects demand for taxi trips with supply for

taxi trips.

Horizontal theories of harm: At the time of the proposed merger, Uber and Autocab

only competed to a limited extent. The authority assessed a loss of competition between

the merging parties in the supply of BDT services and referral networks, particularly with

a view to future potential competition. However, Autocab was unlikely to develop a

stand-alone consumer-facing app that would directly compete with Uber’s app. It was

also unlikely that iGo would grow to become a significant competitor to Uber. Overall,

the authority concluded that horizontal competition would not be substantially lessened

due to the merger.

Non-horizontal theories of harm: Under a vertical foreclosure theory of harm, the

authority assessed whether the quality of Autocab’s BDT and iGo services may decline

post-merger, thereby putting taxi companies and aggregators using Autocab’s services

(i.e., downstream competitors) at a disadvantage. The authority found that a quality

degradation by Autocab would need to be significant in order to cause customers to switch

to competitors (such as Uber). As there were enough BDT providers operating on the

market, taxi companies could switch to those, with relatively low switching costs.

Regarding iGo, the merged entity would not have the ability to foreclose aggregators

(e.g., travel companies, emergency transport companies) because there were a number of

alternatives present on the market and these aggregators already multi-homed.

Bundeswettbewerbsbehörde, eBay/Adevinta (BWB/Z-5141, Z-5142, Z-5420 and Z-5421, 18 June 2021).

Bundeskartellamt, Adevinta/eBay Classifieds Group (B6-41/20, 23 November 2020).

Robertson, Merger review in digital and technology markets: Insights from national case law

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In terms of further vertical non-coordinated effects, the authority also assessed whether

the acquisition would give Uber access to commercially sensitive information about

competitors that would allow it to compete more aggressively. The authority considered

that more intense competition would, in fact, be beneficial. In addition, competing taxi

companies could switch to other BDT providers in such a case.

Outcome: Unconditionally cleared in phase 1.

Remedies: NA

(64) United Kingdom: SK hynix/Intel (28 June 2021)

NCA: Competition & Markets Authority

Case number: ME/6913/20

Concentration: SK hynix, a multinational active in the design and manufacturing of

semiconductor products, wanted to acquire sole control of the NAND

and SSD

business of Intel.

Horizontal theories of harm: SK hynix’s business includes the design and manufacture

of NAND flash memory, NAND-based SSDs and managed NAND products. It overlaps

with Intel’s business in this respect. Therefore, the authority assessed whether horizontal

unilateral effects would arise in one of the two markets affected due to the acquisition.

SK hynix holds investments in Kioxia, which also manufactures NAND and SSDs. The

authority concluded, however, that this has not softened competition in the past.

In 3D NAND, the authority found that the acquisition would reduce the number of

competitors from 6 to 5, meaning that a number of credible competitors would continue

to exercise a competitive constraint on the merged entity. The merged entity would have

a market share of 20-30%. Pre-merger, the parties were not particularly close competitors.

In enterprise SSDs, the merged entity would have a market share of 30-40%, with 4 bigger

and a number of smaller competitors remaining active on the market. Again, the parties

were not particularly close competitors. The authority also noted the buyer power present

in that market.

The authority concluded that no horizontal unilateral effects were likely to arise post-

merger.

Non-horizontal theories of harm: NA

Outcome: Unconditionally cleared in phase 1.

Remedies: NA

Noteworthy: This acquisition was also cleared in the EU.

(65) United Kingdom: Advanced Micro Devices/Xilinx (29 June 2021)

NCA: Competition & Markets Authority

Case number: ME/6915/20

NAND is a type of flash memory.

Solid-state drive.

European Commission Decision of 20 May 2021, M.10059 – SK Hynix/Intel’s NAND and SSD Business.

Robertson, Merger review in digital and technology markets: Insights from national case law

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Concentration: Advanced Micro Devices (AMD), a global semiconductor company

supplying central processing units (CPUs), agreed to acquire Xilinx, another global

semiconductor company supplying field programmable gate arrays (FPGAs).

Horizontal theories of harm: NA

Non-horizontal theories of harm: As there was no horizontal overlap, the authority

considered conglomerate effects. Given that the merged entity would have a strong

market position in FPGAs for datacentre applications, the authority assessed whether the

merged entity could engage in a foreclosure strategy by bundling or tying the sale of

FPGAs with the sale of its CPUs for datacentre services. It found, however, that the

merged entity would not have the ability or incentive to foreclose datacentre CPU

suppliers, as datacentre CPUs are mostly not bought together with datacentre FPGAs.

Given the merged entity’s strong market position in FPGAs for embedded applications,

the authority also assessed whether the merged entity could foreclose competitors

supplying CPUs for embedded applications through linking sales. Again, it concluded

that embedded CPUs and FPGAs were not usually used together, meaning no anti-

competitive outcome was to be expected.

Outcome: Unconditionally cleared in phase 1.

Remedies: NA

Noteworthy: This acquisition was also cleared in China,

the EU

and Singapore.

(66) United Kingdom: Turnitin/Ouriginal (26 July 2021)

NCA: Competition & Markets Authority

Case number: ME/6931/21

Concentration: Turnitin, an international provider of a wide range of software solutions

for the educational sector, wanted to acquire sole control over the Swedish Ouriginal

Group, which is only active on the market for plagiarism detection software. The authority

considered the affected market to be the national market for the supply of anti-plagiarism

software to higher education customers.

Horizontal theories of harm: The authority found that the parties involved were close

competitors, with the acquirer being the target’s main competitive constraint. The parties

also had a very high aggregate share of supply (90%), with few additional competitors on

the market. The additional market share gained by the acquirer would not be high,

however. The authority noted that Google and Microsoft had recently entered the market.

Overall, the authority considered that there was a realistic prospect the merger would lead

to a significant lessening of competition.

Non-horizontal theories of harm: NA

Outcome: Unconditionally cleared in phase 1.

Remedies: NA

State Administration for Market Regulation, Advanced Micro Devices/Xilinx (27 January 2022). In

China, the acquisition was cleared in phase 2 subject to conditions.

European Commission Decision of 30 June 2021, COMP/M.10097 – Advanced Micro Devices/Xilinx.

Competition and Consumer Commission of Singapore, Advanced Micro Devices/Xilinx

(400/140/2021/003, 30 August 2021).

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172

Noteworthy: This merger was also cleared in Spain

and Australia.

While the Spanish

authority had considered entry barriers to be low in this market, the UK authority believed

they were high. The Competition & Markets Authority could not rule out that competition

would be harmed based on horizontal unilateral effects, but relied on the de minimis

exception in this case.

(67) United Kingdom: Meta/Kustomer (27 September 2021)

NCA: Competition & Markets Authority

Case number: ME/6920/20

Concentration: Global technology company Meta (formerly: Facebook) intended to

acquire Kustomer, the provider of a software as a service (SaaS) customer relationship

management (CRM) software that can be used for business to consumer (B2C)

communications. Markets affected included not only the market for the supply of B2C

communication via messaging channels but also the market for service and support

related to CRM software and the market for online display advertising.

Horizontal theories of harm: The authority assessed whether Meta’s data advantage in

online display advertising would be strengthened based on the merger, leading to higher

barriers to entry and expansion and reduced competition. While the authority emphasised

Meta’s competitive advantage due to its access to data, and while it acknowledged that

the merger would increase that advantage, it also underlined that additional data gains

through Kustomer would be small and wouldn’t raise competition concerns. The authority

also pointed to the possibility for competitors to access data similar to the one Meta would

gain through the acquisition.

Non-horizontal theories of harm: Related to a possible vertical input foreclosure, the

authority assessed whether Meta could foreclose other providers of CRM software by

limiting or degrading their access to Meta’s messaging channels. This is because CRM

providers require Meta APIs to integrate them into their software. While Meta would have

the ability to engage in such foreclosure, the authority did not believe that it had a

sufficient incentive for this strategy. B2C messaging is growing, and such a foreclosure

strategy would cut Meta off from revenue-generating CRM providers, as not all customers

would switch to relatively small Kustomer. This was therefore not seen as a credible

theory of harm.

Under a further possible theory of harm related to vertical customer foreclosure, the

authority assessed whether Meta could foreclose other B2C messaging services by

preventing them from integrating their services with Kustomer. As Kustomer is a small

provider specialised in serving small and medium-sized businesses, this was not seen as

a credible theory of harm.

Finally, under a conglomerate theory of harm, the authority also considered whether Meta

could cross-subsidise a free(mium) version of Kustomer with profits from online display

advertising, thereby foreclosing competing CRM providers. This would fit within Meta’s

Comisión Nacional de los Mercados y la Competencia, Turnitin/Ouriginal Group (C/1220/21, 19

October 2021).

Australian Competition and Consumer Commission, Turnitin/Ouriginal Group (25 November 2021).

Robertson, Merger review in digital and technology markets: Insights from national case law

173

overall business strategy, and it would have both the ability and incentive to do so.

However, the authority concluded that this would not have a negative impact on

competition. While some competitors may be hard-hit by such a strategy, CRM providers

compete on more than just price and the authority concluded that there would remain

sufficient competition on that market even if such a conglomerate foreclosure strategy

were to be adopted.

Outcome: Unconditionally cleared in phase 1.

Remedies: NA

Noteworthy: This case was equally cleared subject to conditions by the European

Commission,

while the German Bundeskartellamt cleared it unconditionally.

The

analysis that the Competition & Markets Authority engaged in for this merger did not

follow the usual approach of horizontal/vertical/conglomerate, but instead the CMA

formulated four distinct theories of harm that reflect the specificity of digital markets

including the importance of data in these markets. This could mark the beginning of the

development of theories of harm that no longer clearly distinguish between horizontal,

vertical and conglomerate effects, but that are more closely adapted to the market realities

of digital platforms and ecosystems.

(68) United Kingdom: Auction Technology Group/Live Auctioneers (29 September

2021)

NCA: Competition & Markets Authority

Case number: ME/6942/21

Concentration: Auction Technology Group (ATG) agreed to acquire Live Auctioneers.

Both operate online auction marketplaces for arts and antiques, a market which the

authority noted was national in scope because of the complexity of international

transactions in these goods.

Horizontal theories of harm: The authority assessed horizontal effects related to the

provision of auction marketplaces for arts and antiques. As the acquirer was primarily

focused on UK bidders, while the target was primarily focused on North American

bidders, and they each provided different offerings to their clients, the authority found

that pre-merger they were not close competitors. It also noted competitive constraints in

the UK from two further online auction marketplaces for arts and antiques, as well as out-

of-market constraints (e.g., white label solutions). The merger would not change the

competitive dynamics on the UK market.

Non-horizontal theories of harm: The authority assessed conglomerate effects that may

arise if the merged entity can leverage the target’s strong market position in the US in

order to increase the number of auction houses that use ATG’s services in the UK, eg by

engaging in a bundling strategy regarding the target’s US bidder base. Based on shares of

supply, however, the authority concluded that the target did not have market power in the

US, while ATG was already an important market player in the UK and would gain little

European Commission Decision of 27 January 2022, M.10262 – Meta/Kustomer.

Bundeskartellamt, Meta/Kustomer (B7-119/21, 11 February 2022).

Robertson, Merger review in digital and technology markets: Insights from national case law

174

from such a strategy. Therefore, the merged entity would only have a limited ability to

engage in such a leveraging strategy.

Remedies: NA

Outcome: Unconditionally cleared in phase 1.

Noteworthy: Despite the worldwide reach of online auction marketplaces, the authority

emphasised that the acquirer and the target were not close competitors because they each

focused on a different geographic market, due to buyer preferences but also the

complexity of international transactions in arts and antiques.

(69) United Kingdom: Meta/Giphy (6 December 2021)

NCA: Competition & Markets Authority

Case number: ME/6891/20-II

Concentration: Global technology company Meta (formerly Facebook), with strong

market positions in both social media and display advertising, acquired Giphy, the

world’s leading provider of free GIFs and GIF stickers. Markets affected included the

market for searchable GIF libraries, social media and display advertising.

Horizontal theories of harm: In terms of horizontal unilateral effects, the authority

assessed whether there would be a loss of potential competition in display advertising that

could lead to a substantial lessening of competition. While Meta is an important player in

display advertising. Giphy had recently come up with its Paid Alignment advertising

offering that allowed it to monetise its services. Through this offering, brands could raise

brand awareness, meaning this service was competing with display advertising (until

Meta terminated it upon acquisition). Giphy had plans to move into the UK market. In

light of Meta’s significant market power, the authority considered that this acquisition of

a potential competitor was significant because Giphy had the potential to compete with

Meta. Network effects in those markets and high barriers to entry were equally

considered. The authority concluded that based on the acquisition of a potential

competitor, the acquisition would substantially lessen competition.

Non-horizontal theories of harm: The authority assessed the possibility of vertical input

foreclosure of Giphy’s GIFs, thereby foreclosing competitors in social media markets.

The authority emphasised that users of social media platforms heavily relied on GIFs,

with sometimes over 25% of content including a GIF. Apart from Giphy, the only other

comparable service is Google’s Tenor. Post-merger, Meta would have the ability to

engage in input foreclosure. Based on the benefits awaiting Meta, it would also have the

incentive to do so because users wanting to use Giphy’s GIF library may very well switch

to one of the Meta platforms. Here, the authority emphasised the network effects at work.

This strategy would further strengthen Meta’s market power in social media and have a

negative impact on competition.

The authority highlighted the dynamic nature of the multi-sided markets at issue, which

meant that a lessening of competition on one market (such as social media) exacerbated

anti-competitive effects on another (such as display advertising).

Outcome: Conditionally cleared in phase 2. The decision required a full divestiture of

Giphy, thereby effectively constituting a prohibition of the completed acquisition.

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175

Remedies: In order to address the authority’s concerns, Meta offered a number of

commitments: (i) an open access remedy relating to APIs, (ii) a commingling remedy that

would allow Giphy search results to be interspersed with results from another GIF

provider, and (iii) a white label licensing remedy to sell a white label copy of Giphy’s

content library and a license to use Giphy’s search algorithm for five years.

The authority was not satisfied with these proposed behavioural commitments as the

competition concerns that arose in this dynamic market would not be alleviated by time-

limited behavioural changes. It also highlighted a risk of Meta circumventing the

commitments, and difficulties in monitoring and enforcing.

Noteworthy: In October 2021, Meta was fined GBP 50.5million for disregarding the

freeze order imposed by the Competition & Markets Authority.

Meta continuously

disregarded the Competition & Markets Authority’s freeze order and was therefore

subjected to an additional fine of GBP 1.5million in February 2022.

This case was on

appeal before the Competition Appeal Tribunal on six grounds, of which the Tribunal

dismissed five and only upheld one in relation to a failure on the part of the UK NCA to

properly consult with the parties.

It now remains to be seen how the parties resolve this

issue.

The acquisition was conditionally cleared by Austria’s Cartel Court, where the Austrian

NCA unsuccessfully appealed the conditional clearance before the Supreme Cartel Court

in March 2022.

Competition & Markets Authority, Decision to impose a penalty on Facebook, Inc., Tabby Acquisition

Sub Inc., and Facebook UK Limited under section 94A of the Enterprise Act 2002 (20 October 2021).

Competition & Markets Authority, Decision to impose a penalty on Meta Platforms, Inc., Tabby

Acquisition Sub Inc., and Facebook UK Limited under section 94A of the Enterprise Act 2002 (4 February

2022).

Meta/Giphy, [2022] CAT 26, 14 June 2022.

Victoria Ibitoye, ‘Meta scores procedural win in appeal of UK Giphy selloff order, but impact remains

to be seen’ MLex (14 June 2022)

<https://content.mlex.com/#/content/1385154?referrer=portfolio_openrelatedcontent>.

Kartellgericht, 7 February 2022, 28 Kt 8/21t and 28 Kt 9/21i – Meta/Giphy; Kartellobergericht, 23 June

2022, 16 Ok 3/22k and 16 Ok 4/22g – Meta/Giphy.

ISBN: 978-92-76-60451-8

KD-04-22-317-EN-N

https://europa.eu/!Tc4f4Y

Competition