”Antitrust Code” is a podcast series that aims to decode antitrust law and policy. Concurrences guests discuss the latest news and topical issues in competition law and economics around the world.
Episodes
2 hours ago
2 hours ago
39 min
In this new episode, Elisabetta Iossa (Italian Competition Authority) is interviewed by Ashwin van Rooijen (Clifford Chance) and Cecilia Nardini (Compass Lexecon) about her four years at the AGCM and the lessons for EU competition enforcement in the digital age, ahead of the Antitrust Horizon: Meet the Enforcers workshop.
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KEY TAKEAWAYS
Merger Control, EU Competitiveness and the Future of Antitrust Enforcement
Anastasios TOMTSIS (Partner, Clifford Chance, Brussels) and Lorenzo COPPI (Executive Vice President, Compass Lexecon, Brussels) moderated this discussion.
Guillaume LORIOT
Deputy Director-General for Mergers, DG Competition, European Commission, Brussels
Competitiveness Without Compromise: The Mandate Has Not Changed
- The legal mandate of the EU Merger Regulation is unchanged: the only question is whether a merger significantly impedes effective competition, assessed under a consumer welfare standard applied “in the European way”.
- Consumers’ interests are protected both directly and indirectly, by preserving the competitive process and a competitive market structure, and the relevant customers are very often EU business customers.
- Geopolitics has changed market realities: in some markets, customers now value multi-sourcing, resilience, quality or innovation as much as price, and the Commission takes these into account when the market investigation shows they are genuine parameters of competition.
- This bottom-up approach is not new: innovation competition has mattered more than static price competition in some markets for 10 to 15 years, as the Dow/DuPont debates showed.
- What the Commission cannot do is clear an anticompetitive merger because it serves economic or public security: it has no such mandate, and Member States are better placed to protect public security.
- Prices still matter, for affordability and for the competitiveness of EU business customers: “you don’t become more competitive by having less competition”.
- Beyond the new guidance on Article 21 of the Merger Regulation, the two main novelties concern dynamic effects, on both the harm and the benefit side, and efficiencies.
- On harm, the draft clarifies the framework for potential competition (actual versus potential, two prongs, following Adobe/Figma), refines dynamic foreclosure while keeping the ability-incentive-effect test, and spells out innovation competition along the four-layer framework used in Dow/DuPont.
- Entrenchment, recently applied in Booking/eTraveli, is set out as a distinct theory of harm, more exceptional than foreclosure but potentially very significant in some markets.
- The “innovation shield” responds to the post-Illumina debate: when the Commission reviewed more than 100 start-up acquisitions, only four, including Qualcomm/Autotalks and Microsoft/Inflection, raised issues, and the shield aims to give comfort to start-ups that need to scale up.
- A common understanding with national authorities that hold call-in powers, such as the Italian authority, is essential, as they often decide whether to review or refer such deals.
- For the first time, the guidelines give positive guidance on pro-competitive scale, for instance cross-border integration in markets that remain national, such as banking: “stating the obvious”, but useful.
Efficiencies: A Reset, Not an Escape Clause
- While no merger has been cleared on efficiencies alone, efficiencies have made a difference in relation to specific markets in some markets, for instance through the elimination of double marginalisation in some telecom product markets, and therefore had an impact on the scope of remedies needed.
- The draft does not lower the bar but clarifies it: the balance of probabilities applies across the board, to harm and to benefits alike, and efficiencies must still be verifiable, benefit consumers and be merger-specific.
- The aim is to reset the tone and the process so that parties put forward well-argued efficiencies early, without fearing they will be treated as an efficiency offence or come too late.
- The Commission may engage on efficiencies in parallel in borderline cases, including some it would previously have cleared in Phase I, to build a transparent and rigorous practice, which may mean more work for parties.
- The Commission may check the credibility of claims with the market, for instance consumer demand for a promised benefit, but this does not relieve the parties of their burden: they hold the information and must “do their homework”.
- Dynamic efficiencies are the hardest: they require a credible economic mechanism showing both the ability and a real incentive to innovate, not promises, and practice will be decisive.
Future-Proofing Merger Control
- No new regime for minority shareholdings is under discussion: the guidelines take stock of long-standing practice on structural links that may soften competition or support coordinated effects.
- The priority is modern investigative tools, such as consumer surveys and AI for internal document review, but not AI to draft decisions; 90% of cases remain simple, quick and transparent.
- Interaction with other instruments, such as the GDPR, the AI Act and FDI screening, will keep growing.
- The guidelines are designed to be future-proof: the coordination chapter recognises that AI may make observability and coordination easier, and the ecosystem concept, born in the Android case, was imported into merger control in Booking/eTraveli.
- Jurisdiction remains a live frontier, including acqui-hires such as Microsoft/Inflection, and the Commission will keep the flexibility to address new theories of harm, provided it explains any departure from the guidelines.
Elisabetta IOSSA
Commissioner, Italian Competition Authority (AGCM), Rome
A Flexible Tool, Not a Political One
EU law has never prevented the assessment of non-price effects: merger control protects the competitive process under a broad consumer welfare standard, covering both end consumers and business customers.
Quality, variety, availability, sustainability and personal data have long been assessed with standard tools, and evolving preferences, from green products to firms’ ethical values, can be built into market definition and closeness of competition case by case.
The Draghi report is often misread: it never called for weaker merger control, and its chapter 9 even points towards more tools, such as call-in powers and market investigations with remedies.
Politicising merger control would be “bad news for everybody”: more pressure from Member States to favour national champions, more fragmentation of the internal market, and less predictability for investors.
Public security is better handled by other tools and institutions, notably Member States under Article 21(4), which allows competition authorities to remain technical and coherent.
The AGCM welcomed the draft guidelines but called for more consistency between their introduction and the technical sections, and flagged the treatment of “incommensurable” benefits as potentially tricky.
No Revolution Expected in Rome
- European studies show no significant under-enforcement and no marked rise in concentration, unlike the US debate; a joint study with the Bank of Italy on concentration in Italy, due soon, points the same way.
- Over roughly the last decade, the AGCM has opened fewer than five Phase II investigations a year, about 6% of notified mergers, and more than 90% of these were cleared with remedies, increasingly supported by monitoring and divestiture trustees.
- Dynamic and innovation analysis is already part of practice: Luxottica/Barberini involved an innovative target, Bolton Group raised sustainability issues in green household products, and banking mergers raised minority shareholdings, common ownership and interlocking directorates.
- The AGCM revised its merger notification form two years ago to look more closely at labour markets and common or cross-ownership.
- The focus on ecosystems is welcome, and Booking/eTraveli is a particularly important decision in a world of one-stop shops.
- Why Rigour Fuels Innovation
- Dynamic effects cut both ways, harmful as well as beneficial, and will matter increasingly in abuse of dominance cases in digital markets, where zero-price entry can be followed by lock-in and price rises.
- Speaking as an academic, in an unpublished paper that does not reflect the AGCM’s views, she showed that lowering the precision of the assessment of efficiencies would reduce firms’ pre-merger incentives to invest in projects exploiting complementarities.
- The intuition draws on Holmström’s informativeness principle: a less precise assessment increases both type I and type II errors, which weakens the reward from investing, namely approval of the merger.
- Rigorous assessment is therefore complementary to, not in conflict with, investment and innovation, and calls to lower the verifiability bar are not on the cards.
Call-In Powers: Filling a Real Gap
- Call-in powers fill a genuine enforcement gap, not only for killer acquisitions in pharma and digital, but also in traditional sectors: in a country with 95% SMEs and many local markets, ports and airports matter as much as AI deals.
- The Italian regime balances legal certainty and effectiveness: the power can be used only within six months of closing, when certain thresholds are met, and where there is a risk of a significant impediment to competition in the national market.
- Guidelines adopted after public consultation support self-assessment, and the AGCM now commits to answering voluntary communications within 30 days instead of 60.
- Since the power was introduced, the AGCM has received about 50 voluntary communications and called in about twelve deals, with a peak in 2024, of which only around a quarter went to Phase II.
- The debate has moved from whether these powers are needed to how to design them, as shown by the ECN joint declaration and by countries such as the Netherlands and Germany considering higher thresholds combined with call-in powers.
- The AGCM picks its cases carefully and makes sure its decisions can be tested up to the Court of Justice, which will clarify the boundaries of these powers.
- Fast Markets Need Fast, Coordinated Action
- National authorities handled 87% of EU antitrust cases according to the Commission’s 2024 review, and the ECN+ Directive strengthened their independence and powers to support coherent, decentralised enforcement.
- In digital markets, stopping the conduct is often not enough: where network effects let a firm gain a billion users in three years, remedies must be both proportionate and effective at restoring contestability.
- In the Meta AI case, the AGCM acted fast through interim measures, and the Commission then took the matter up at EU level, a model of complementary action.
- In the parallel investigations into Apple’s App Tracking Transparency (ATT) – à confirmer by Italy, France, Germany, Romania and Poland, working side by side with other authorities and the Commission avoided incoherent outcomes on the same conduct.
- The AGCM has also opened a DMA-related investigation in close cooperation with the Commission, the sole DMA enforcer, because Italian consumers are affected and national authorities can still contribute.
DOCUMENTATION
Jul 2, 2026
Jul 2, 2026
31 min
In this new episode, William E. Kovacic (GWU Law School), in discussion with François-Charles Laprévote (Cleary Gottlieb) and Antoine Chapsal (Analysis Group), closed the Global Merger Control Conference that occurred in Paris on the 26th of June 2026. If you would like to read more about this conference, see speakers' photos and/or videos, check this page.
KEY TAKEAWAYS
The Evolving Role of Competition Authorities in Industrial Policy and Innovation
- Competition authorities are well placed to advise governments on industrial policy, drawing on their expertise in market dynamics, competition and industry evolution.
- Their role should primarily be to inform public policy decisions rather than incorporating broader political objectives directly into merger enforcement.
- Expanding competition law to pursue multiple policy goals increases political influence over enforcement and may undermine the independence of competition authorities.
- Broad enforcement discretion should be accompanied by greater transparency, clear reasoning and robust disclosure to preserve accountability and legal certainty.
- The influence of merger guidelines ultimately depends on consistent implementation, persuasive economic analysis and the development of case law.
- Assessing innovation and dynamic competition requires multidisciplinary expertise extending beyond law and economics to include technical and sector-specific knowledge.
- Competition authorities need stronger analytical capabilities, better data and greater resources to address increasingly complex regulatory responsibilities.
- Effective competition enforcement in innovation-driven markets depends not only on sound legal frameworks but also on sustained institutional investment and technical expertise.
DOCUMENTATION
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Jul 2, 2026
Jul 2, 2026
1 hr 2 min
In this new episode, Guillaume Loriot (DG COMP) and William E. Kovacic (GWU Law School), in discussion with Séverine Schrameck and Frédéric de Bure (Cleary Gottlieb), opened the Global Merger Control Conference that occurred in Paris on the 26th of June 2026.
If you would like to read more about this conference, see speakers' photos and/or videos, check this page.
KEY TAKEAWAYS
Guillaume LORIOT
Deputy Director General for Mergers, DG COMP, Brussels
Pre-Notification Efficiency Engagement: A New Commission Mindset
- Parties are encouraged to raise efficiency arguments from pre-notification; the Commission can then signal what it will scrutinize most closely.
- Understanding the deal rationale has always been standard practice, but is now pushed more actively in complex or borderline cases.
- Consistency is key: what parties tell shareholders must align with what they present to the Commission.
- Two recent cases illustrate the approach: an aircraft maintenance JV (pooling synergies across global repair sites) and a case in Portugal, where efficiency arguments were engaged with at an early stage.
- In both cases, no competition concerns ultimately arose, but early engagement proved useful regardless, particularly for testing whether the claimed benefits resonated with customers.
- Analysis at this stage is necessarily lighter than in Phase 2, but provides a first market-grounded read on whether the claimed benefits are credible.
- Early engagement is not one-sided: it also disciplines parties to come with a coherent and consistent story, aligned across shareholders, boards, and the Commission.
- The goal is not to facilitate clearance: it is to rigorously assess arguments from the outset, requiring substantiated and internally consistent submissions.
- This shift in mindset reflects a broader reset: the Commission is willing to engage, but expects parties to come prepared with concrete, verifiable elements from the outset.
William E. KOVACIC
Professor, GWU Law School, Washington D.C.
Ex Post Review: Building Institutional Memory in Merger Control
- After-the-fact reviews of agency decision-making are underused and should become standard practice.
- The goal is not to prepare elaborate quantitative studies, but to conduct structured reviews of the reasoning and assumptions that drove decisions.
- Access to internal files reveals where judgment calls were made and what lessons can be drawn for future cases.
- This creates pressure to write honest, substantiated memos at the time rather than retreating into vague generalities.
- Transparency at the time of the decision is what makes ex post review meaningful; you can only learn from what was properly documented.
- The United Launch Alliance clearance illustrates the value: a 2-to-1 deal cleared under DoD pressure, but documented transparently.
- That documentation later proved instructive when assessing what the SpaceX alternative ultimately delivered.
- The SpaceX example shows that documenting risks and alternatives at clearance stage can shape smarter policy choices down the line.
- Ex post review builds institutional memory, particularly valuable as agencies face a growing range of considerations.
- Agencies should ask not just whether a decision was legally sound, but whether the assumptions behind it held up over time.
- The 50th anniversary of Hart-Scott-Rodino this September 30th is a timely moment to ask whether premerger notification still delivers the right information at the right time.
DOCUMENTATION
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Jun 10, 2026
Jun 10, 2026
1 min
In this new episode, Charles Beller (U.S. Department of Justice) and Ricardo Zimbron (Cleary Gottlieb Steen & Hamilton) closed the International Merger Conference that occurred in London on the 4th of June 2026.
If you would like to read more about this conference, see speakers' photos and/or videos, check this page.
KEY TAKEAWAYS
Merger Control Policy Shifts and the Role of Efficiencies in the US Framework
- Merger enforcement in the US is driven primarily by competitive effects analysis rather than formal efficiency offsets.
- Efficiencies are still considered, but they do not operate as a standalone legal defence against anticompetitive harm.
- The 2023 Merger Guidelines aim to align enforcement practice more closely with established case law and judicial precedent.
- Courts ultimately decide cases, meaning agencies must prove harm before a neutral fact-finder rather than rely solely on guidelines.
- Efficiencies may still matter as part of rebutting a prima facie case, but they rarely determine outcomes alone.
- The US system prioritizes litigation strategy and evidentiary burden over guideline-driven decision-making.
- Enforcement remains focused on dynamic competitive effects, including entrenchment and barriers to entry in evolving markets.
- Recent policy shifts reflect continuity in analytical tools, but differences in how they are applied depending on the Administration.
DOCUMENTATION
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Jun 9, 2026
Jun 9, 2026
56 min
In this new episode, Annemiek Wilpshaar (DG COMP), Joel Bamford (UK CMA) and Jackie Holland (Cleary Gottlieb) opened the International Merger Conference that occurred in London on the 4th of June 2026.
If you would like to read more about this conference, see speakers' photos and/or videos, check this page.
KEY TAKEAWAYS
Joel BAMFORD
Executive Director, Mergers, UK Competition and Markets Authority, London
CMA Merger Guidance Update – Efficiency, Innovation, and Convergence with EU Approach
- The update is part of a broader 18-month programme focused on clarity, predictability, and pace, covering process, remedies, and now efficiencies.
- The core legal test is unchanged: efficiencies must be merger-specific, timely, likely, and sufficient to offset anti-competitive effects, supported by verifiable evidence.
- The guidance provides more detail on how efficiencies are assessed in practice, with more examples and earlier engagement encouraged from pre-notification onwards.
- Dynamic efficiencies fit within the existing framework, but with explicit recognition that benefits may materialise later, calibrated to innovation cycles.
- Merger specificity is assessed against what is commercially rational, not merely theoretically possible.
- Firms feared that raising efficiencies would cause harm or risk an efficiency offence; the guidance normalises early engagement and confirms that such offence cases are rare.
- Entrenchment, portfolio effects, and ecosystem theories are familiar concepts reframed, with outcomes driven by case-specific evidence.
- The CMA reviewed Booking/eTraveler on similar theories to the EC but reached a different outcome, showing that a shared framework does not guarantee identical results.
- The CMA uses Relevant Customer Benefits to consider wider sustainability and resilience outcomes, but stresses that firm, market, and supply chain resilience are distinct concepts.
- The UK’s public interest intervention test provides a separate route for non-competition considerations, applied in banking and during the COVID pandemic.
- The CMA maintains close working relationships with the EC, DOJ, FTC, and other global agencies, with regular bilateral engagement well beyond major conferences.
EU Merger Guidelines – Modernisation, Efficiency, and New Theories of Harm
- The update reflects 20+ years of case practice and responds to the Draghi/Letta reports on Europe’s competitiveness and productivity gap.
- The core objective is to help European companies scale up and compete in global markets, not just to update enforcement rules.
- New guidelines shift from a static, category-based approach to a more dynamic, forward-looking framework centred on market power and rival reactions.
- For the first time, the Commission explicitly signals that "big is not bad" and that mergers can generate pro-competitive benefits.
- A new "theory of benefits" concept requires parties to substantiate efficiency claims with concrete economic mechanisms rather than general statements.
- Direct efficiencies (immediate cost savings, quality gains) are distinguished from dynamic efficiencies (longer-term innovation benefits), with more flexibility on timing and quantification for the latter.
- Entrenchment concerns apply only to dominant firms in markets with network effects or customer inertia, where the acquired asset is closely related to the dominant firm’s product and important to effectively compete and unique.
- Portfolio effects now cover brand loyalty, customer overlap, and cross-product negotiation behaviour (Mars/Kellanova).
- Access to commercially sensitive data is confirmed as a standalone theory of harm (UMG/Downtown).
- Early engagement is strongly encouraged, particularly on innovation-related claims, as the underlying evidence typically sits with the merging parties.
- International coordination with agencies such as the ICN and OECD is routine, especially on global markets, remedies, and purchaser alignment.
DOCUMENTATION
Olivier Guersent, More competitiveness with less competition… seriously?, 1 June 2026, Concurrences N° 6-2026, Art. N° 135190
Peter Alexiadis, Konstantinos Lampropoulos, EU competition policy through an industrial policy lens: Adapting to the post-Draghi world, 1 January 2026, Concurrences N° 1-2026, Art. N° 130944
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Apr 7, 2026
Apr 7, 2026
20 min
In this new episode, Bernardus Smulders (Court of Justice of the European Union) and Jérôme Philippe (Freshfields) opened the Private Enforcement in the EU Conference that occurred in Paris on the 2nd of April 2026.
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Key takeaways of Bernardus Smulders (Court of Justice of the European Union) speech "Recent CJEU Case Law on Private Enforcement: Structure, Limits and Emerging Trends":
- The Court’s case law structures private enforcement around four key areas: third-party funding, limitation periods, jurisdiction and applicable law, and access to evidence.
- On third-party litigators, the Court holds that national rules cannot block claim assignments where no effective alternative exists and individual actions are excessively difficult.
- On limitation periods, the Court requires that time limits do not start before the infringement has ended and before the victim can reasonably know the key elements of the claim.
- In Nissan, the Court clarifies that the limitation period starts only once the national authority’s decision becomes final, since only then does it bind national courts.- On jurisdiction, the Court adapts traditional rules to collective and digital cases by allowing courts to rely on the affected market as a whole.
- In multi-defendant cases, jurisdiction can be centralized if claims are closely connected in order to avoid inconsistent judgments.
- On access to evidence, the Court introduces a flexible plausibility test that requires a credible claim while preventing abusive disclosure requests.
- Overall, the case law shows a consistent reliance on the principle of effectiveness and a growing role of the Court in clarifying gaps in EU legislation.
Feb 20, 2026
Feb 20, 2026
12 min
In this new episode, Mark R. Meador (U.S Federal Trade Commission) gave a keynote speech during the Tech Antitrust Conference that occurred in Palo Alto on the 15th of January 2026.
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Key takeaways of Mark Meador speech Innovation and Antitrust: Bridging the Silicon Valley–Washington Divide
- Both DC and Silicon Valley operate within their own “bubbles,” which creates mutual misunderstanding and leads each side to see the other as either obstructionist or naïve.
- The debate is often reduced to a false binary of regulation versus innovation, instead of evaluating each case on its merits.
- Not all regulation is harmful and not all innovation is beneficial, so the focus should be on distinguishing wise innovations from harmful ones.
- Technology’s promise has not always translated into societal benefit, as the internet democratized knowledge but much of its use has become passive consumption (e.g., short-form video).
- AI represents a pivotal inflection point, with the potential to drive breakthroughs in medicine, science, and defense or to deepen social harm and mistrust if left unchecked.
- Antitrust enforcement is crucial because competitive markets drive better innovation and prevent the concentration of power that undermines consumer welfare.
- Acqui-hire practices pose a real competitive threat, as large firms may acquire startups primarily to commandeer talent and reduce competition, creating “buy and kill” dynamics.
- Antitrust law is not outdated—its principles remain applicable, but the challenge is applying them effectively in real-time with modern market data and economic insights.
- Enforcement must follow “regular order,” with predictable, fair, and transparent processes to avoid politicized or arbitrary enforcement.
- The shared mission is serving the American public, and both regulators and tech companies must build trust and show how their actions benefit ordinary people, not just elites.
DOCUMENTATION
Justin P. Murphy, Trump 2.0 : What to expect in antitrust enforcement, 4 February 2025
Jan 27, 2026
Jan 27, 2026
22 min
In this new episode, Peter Mucchetti & Timothy Lyons (Clifford Chance) interview Daniel Guarnera (U.S. Federal Trade Commission) during the Tech Antitrust Conference that occurred in Palo Alto on the 15th of January 2026.
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DOCUMENTATION
Justin P. Murphy, Trump 2.0 : What to expect in antitrust enforcement, 4 February 2025
Jan 21, 2026
Jan 21, 2026
18 min
In this new episode, Stavroula Vryna (Clifford Chance) interviews Gustavo Augusto Freitas de Lima (CADE) before the Tech Antitrust Conference that occured in Palo Alto on the 15th of January 2026.
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DOCUMENTATION
Nov 14, 2025
Nov 14, 2025
39 min
In this new episode, Aleksander Tombiński (Clifford Chance) and Elena Zoido (Compass Lexecon) Interview Cani Fernández Vicién (Spanish Competition Authority) before the Antitrust Horizon: Meet the Enforcers workshop.
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If you would like to read about this topic, you can access the following Concurrences documents. If you do not have access, please inquire for Subscription.