Sustainability concerns in EU merger control: From output-maximising to polycentric innovation competition

Deutscher, Elias and Makris, Stavros (2023) Sustainability concerns in EU merger control: From output-maximising to polycentric innovation competition. Journal of Antitrust Enforcement, 11 (3). 350–399. ISSN 2050-0688

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This paper examines whether sustainability concerns play and should play any role in EU merger control. Sustainability concerns are currently cognizable as innovation-related issues as evidenced in Dow/Dupont and Bayer/Monsanto. In these cases, the Commission pioneered a novel approach aimed at predicting the impact of a merger not only on prices, but also on innovation competition. This theory of harm grounds in a rich conception of innovation and marks a tangible improvement in the current framework of analysis. Yet, it fails to give full effect to all competition-relevant sustainability concerns because of its exclusive focus on innovation capabilities, efforts and output. On this basis, we argue that innovation competition should not be understood only as an output-maximising device but also as a polycentric process under which independent decision-makers pursue various innovation paths. Such an approach puts an emphasis on the diversity, quality and direction of innovation and constitutes an alternative to the predominant output-centred understanding of innovation and a complement to the resources/capability-based analysis of innovation. To operationalise the notion of innovation competition as a polycentric process we explore four pathways: quality-related and sustainability-sensitive innovation metrics, indicators of industry-wide structural effects, a structural filter and ways to protect nascent competitors. Adding such an approach to the existing analytical framework would, arguably, enable the Commission to deal with all competition-relevant sustainability concerns.

Item Type: Article
Faculty \ School: Faculty of Social Sciences > School of Law
UEA Research Groups: Faculty of Social Sciences > Research Centres > Centre for Competition Policy
Faculty of Social Sciences > Research Groups > Competition, Markets and Regulation
Faculty of Social Sciences > Research Groups > Media, Information Technology and Intellectual Property Law
Depositing User: LivePure Connector
Date Deposited: 22 Sep 2022 11:30
Last Modified: 04 Nov 2023 03:30
DOI: 10.1093/jaenfo/jnac019

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