The European Commission (EC) uses commitments in merger cases as a tool to address concerns about the impact of a proposed merger on competition in the market. In the context of mergers in the information and communication technology (ICT) sector, the EC has frequently used commitments as a means to resolve competition concerns.
Commitments are voluntary undertakings made by the merging parties to address the EC’s concerns, typically in the form of behavioral or structural remedies. The goal of commitments is to create conditions that maintain or restore effective competition in the relevant market, and they are often seen as a more flexible and efficient tool than blocking a merger outright.
However, the effectiveness of commitments in ICT mergers has been the subject of debate. Critics argue that commitments are often inadequate to address the competition concerns raised by mergers in this sector. For example, commitments may not be able to address issues related to the control of essential technologies or data, which can be crucial for competition in the digital economy. Moreover, commitments may be difficult to enforce, as they rely on the merging parties to self-regulate and may not be easily monitored by the EC.
In recent years, the EC has attempted to address some of these concerns by imposing more stringent conditions on the use of commitments in ICT mergers. For example, in the acquisition of WhatsApp by Facebook, the EC imposed specific requirements for how WhatsApp user data could be shared with Facebook. In addition, the EC has increased its focus on the role of data and algorithms in digital markets, recognizing that these factors can have a significant impact on competition.
In conclusion, while commitments remain an important tool for addressing competition concerns in ICT mergers, their effectiveness depends on the specific circumstances of each case. To ensure that commitments are adequate to address competition concerns in the digital economy, the EC must continue to adapt its approach to reflect the unique features of this sector.
