Did the European Union’s Market Dominance Policy Have a Gap? Evidence from Enforcement in the United States

"This paper evaluates the degree of overlap between the two merger review policies to identify the potential gap in the historical EU review process. After an introduction to the relevant merger enforcement regimes, simulations are run to determine the relationship between the US policy, which is focused on significant competitors, and the EU policy, which is focused on dominant market share. More detailed analysis evaluates the potential for an EU gap by modelling the actual enforcement decisions of the Federal Trade Commission with the EU dominance structure. Further work compares the FTC enforcement rates in the matters clearly flagged as dominance cases to rates in structurally similar matters that fall short of dominance to determine if market dominance considerations influence the aggressiveness of US enforcement. Overall, the study finds that a structural EU dominance policy covers basically the same unilateral mergers as the US regime; the only material difference observed addresses marginal coordinated interaction cases."