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EU Merger Control in 2016*

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Last year was a busy one for EU merger control, with 362 cases notified, 25 cases approved subject to commitments and one prohibition decision. A look back at recent decisions and policy developments gives some insight as to how merger enforcement policy is likely to develop in the near term.

In 2016 the assessment of the impact of deals on competition in innovation was an important feature of the Commission's assessment. Though long a feature of the Commission’s merger policy which has been applied in various cases – for example, TomTom/TeleAtlas (2008) and Intel/McAfee (2011) – decisions in 2016 suggest that the role that innovation plays in the Commission’s assessment of mergers continues to gain in stature.

In terms of deals requiring remedies, the majority were structural in nature, confirming the Commission’s preference for divestitures to remedy antitrust concerns, particularly in horizontal mergers. The Commission’s prohibition decision in Hutchison 3G UK/Telefonica UK represented the first blocking decision since 2013 and serves as a reminder of the Commission’s willingness to bare its teeth. On the merger policy side, the prospect of further reforms to the EU merger control rules has been put back on the table: the Commission launched a consultation on potential areas for reform. This included, most significantly, possible changes to the EU Merger Regulation thresholds: scrutiny of the rules has been prompted by Commission concerns that it does not currently have direct jurisdiction to review certain pharma and big data deals where the target has low or even no revenues in the EU (the Facebook/WhatsApp transaction being a prime example).

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*This article first appeared in Competition Law Insight, February 14, 2017.

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