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. If you would like to read more about this conference, see speakers' photos and/or videos, check this page. Follow us on Linkedin to receive updates on our next podcast episodes. You can explore our database and try our Concurrences AI tool free of charge for one week by registering on this page. 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 LORIOTDeputy 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”. Draft Merger Guidelines: Dynamic Effects, Both Ways 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 IOSSACommissioner, 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 introd
