This presentation by Viktoria Robertson, Professor of Competition Law, Vienna University of Economics and Business & University of Graz, was made during the discussion “Theories of Harm for Digital Mergers” held at the 140th meeting of the OECD Competition Committee on 16 June 2023. More papers and presentations on the topic can be found out at oe.cd/thdm. This presentation was uploaded with the author’s consent.

1. Viktoria H.S.E. Robertson
@VRobCompLaw
OECD COMPETITION COMMITTEE, 16 JUNE 2023
Digital Merger Control:
Adapting Theories of Harm

2. Why have not more digital mergers been challenged?
1. No competition problem
2. No jurisdiction
3. No appropriate theories of harm
ROBERTSON, OECD COMPETITION COMMITTEE (16 JUNE 2023)
2
Introduction
Turnover thresholds Transaction value thresholds
Market share thresholds Referrals EU Member States  Commission
Picture: pixabay.com

3. 3
Digital Mergers in Europe
ROBERTSON, OECD COMPETITION COMMITTEE (16 JUNE 2023)
Source: Robertson, Report to the
European Commission (2022)
44%
26%
12%
4%
7%
4%
3%
69 national European digital & tech
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

4.  eBay/Adevinta (2020/2021)
• AT
• DE
• UK
 Presence of Big Tech
• Axel Springer/Concept Multimédia (FR
2018)
• DPG/Sanoma (NL 2020)
• Booster/Liftoff (IRL 2021)
• Turnitin/Ouriginal Group (ES 2021)
 Digital market characteristics
• Merger prevents tipping (Axel
Springer/Immowelt, DE 2015)
• Multi-homing of users (Axel
Springer/Immowelt, DE 2015; Parship, DE
2015; Glovoappro/Foodpanda, RO 2021)
Case Study 1: Same Digital
Merger – Different Assessments
ROBERTSON, OECD COMPETITION COMMITTEE (16 JUNE 2023)
4
Status Quo: Horizontal Concerns
Case Study 2: Assuaging
Horizontal Concerns

5.  Input foreclosure
• (i) ability and
• (ii) incentive to engage in foreclosure,
• (iii) effects on downstream competition
 UK (2022)  divestiture
 AT (2022)  access requirement
 Rockaway Capital/Heureka (CZ
2016)
 Sully System/CENEJE (SI 2018)
 Sanoma/Iddink (NL 2019)
 Uber International/GPC Computer
Software (UK 2021)
 esure/Gocompare.com (UK 2015)
Case Study 3: Input Foreclosure
in Meta/Giphy
ROBERTSON, OECD COMPETITION COMMITTEE (16 JUNE 2023)
5
Status Quo: Vertical Concerns
Case Study 4: Access to Data
Through Vertical Integration

6.  Frequently  post-merger bundling
no credible threat to competition
 Axel Springer/Concept Multimédia
(FR 2018)
 Sanoma/Iddink (NL 2019)
 Blackbaud/Giving (UK 2017)
 Greek Delivery Hero case (2022)
 Assessed purely in relation to
conglomerate concerns (!)
 Required commitments
Case Study 5: Bundling
Strategies
ROBERTSON, OECD COMPETITION COMMITTEE (16 JUNE 2023)
6
Status Quo: Conglomerate Concerns
Case Study 6: Are Conglomerate
Theories of Harm Enough?

7.  Traditional theories of harm remain focal point of substantive assessment in digital
mergers
 Possible to adapt traditional theories of harm to digital market environments
 But  in practice, there appears to be a limit where ecosystem theories of harm
would need to be fully incorporated
 Going forward, focus on:
1. Digital ecosystem theories of harm
2. Data advantages
3. Coherent interaction between merger control &
control of market power
7
Conclusions
ROBERTSON, OECD COMPETITION COMMITTEE (16 JUNE 2023) Picture: pixabay.com

8. Competition Law and Digitalization Group
Welthandelsplatz 1, 1020 Vienna, Austria
UNIV.-PROF. MAG. DR.
VIKTORIA H.S.E. ROBERTSON,
MJUR (OXON)
T +43-1-313 36-6630
viktoria.robertson@wu.ac.at
www.complawhub.eu
@VRobCompLaw
8 ROBERTSON, OECD COMPETITION COMMITTEE (16 JUNE 2023)