This article examines the EUMR’s purpose and ex-ante control against the background of ‘killer’ or ‘zombie’ acquisitions that evaded scrutiny by falling below merger control thresholds, while other concentrations were permitted due to debatable market definitions or inadequate theories of harm. Recognizing these shortcomings, the article discusses ex-post control following Towercast and Continental Can. It submits that the conditionality introduced in these judgments constitutes (1) an effort by the CJEU to limit ex-post merger control, (2) an ultra vires restriction on the application of Art 102 TFEU, or (3) a de facto acquisition ban for bottleneck holders and ecosystem orchestrators.
Tackling the entrenchment of bottleneck power: A new direction for European merger control? – Part 1
AbhandlungenFabian Ziermann**Recipient of a DOC Fellowship of the Austrian Academy of Science at the Competition Law and Digitalization Group of the WU Vienna, supervised by Vicky Robertson (WU Vienna) and Andrew Murray (LSE). Fabian’s research focuses on the regulation of eSports and gaming through comparative competition and IP law. Moreover, Fabian is Of Counsel at AKELA RechtsanwältInnen GmbH. E-mail: abian.ziermann@s.wu.ac.at . The author has nothing to disclose.ÖZK 2024, 39 Heft 2 v. 7.5.2024
