New trends in merger control: capturing the so-called killer acquisitions... and everything else

When assessing an M&A transaction, once it is determined that the transaction is a concentration under competition law, it must be assessed whether the concentration is subject to a mandatory merger control filing.

Until recently, this exercise was — although somewhat complex — quite objective and only the transactions that exceeded the notification thresholds were caught by the mandatory merger control system. However, over the last few years there have been wide-ranging discussions about the adequacy of the existing merger control tools to capture and sufficiently assess the concentrations that could significantly impede effective competition, namely the so-called killer acquisitions. These discussions started to materialize with the European Commission reinterpreting existing tools to broaden its powers for merger control, ending up introducing more uncertainty for businesses, increased costs, potential delays to closing and increased burdens in the drafting of the transaction documents.

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