The New Tentacle of EU Competition Law: Tools to Control Foreign-Subsidised Acquisitions and Market Distortions

We live in a world where the boundaries of antitrust seem to be ever expanding. Antitrust is both a sponge, absorbing up new ideas from other domains, and a jellyfish – growing new tentacles. This article looks at the European Commission’s proposal for new powers to control foreign-subsidized acquisitions and market distortions. It concludes by looking at the risk of antitrust losing its coherence and that its core principles may become diluted.

By James Killick, Giuseppe Tantulli & Aron Senoner¹

I. THE SPONGE AND THE JELLYFISH

For those of us who have more grey hairs than we would like, EU competition law seems rather different today to what it was like when we started our journey. And the pace of change in the last few years seems to be faster than ever before.

Antitrust can be viewed as a sponge, as it picks up and is influenced by other disciplines, by ideas from other fields and by events.² This is to be expected given competition law reflects the political decision on how society decides to shape its economy. What is unusual in the last few years is how many new ideas and new influences there have been. This may be due to the stresses in the economy in the past decade since the global financial crisis as well as the rapid advance of technology.

We’ve seen hipster antitrust.³ We’ve seen fairness being increasingly cited as a concept/goal.⁴ We’ve seen the goal of curing wealth inequality as a new concept/goal.⁵ We’ve seen antitrust get very clo