Svend Albaek and Raphaël De Coninck explore the proposed use of “dynamic capabilities” analysis in European merger control as authorities increasingly focus on innovation effects. While supporting greater emphasis on innovation, the authors warn that capabilities analysis may lack sufficient evidentiary rigor and grant competition authorities excessive discretion.
Analyzing recent cases, they argue such analysis must be supported by evidence of firms’ actual incentives, not just theoretical capabilities. The paper’s main concern is the imbalanced standard of proof (showing anti-competitive effects requires less certainty than proving efficiencies) which worsens when relying on uncertain innovation analyses. The authors call for rigorous evidentiary standards and balanced burden of proof to ensure predictable merger enforcement.
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