Agro-Chemical Mega-Mergers and Innovation – Between Competition Law, Regulation and IP Rights
in G. Muscolo & M. Tavassi (eds.) The Interplay between Competition Law and IP: An International Perspective (Kluwer, 2019)
49 Pages Posted: 1 Nov 2018
Date Written: September 5, 2018
This study aims to narrate the context that shaped the competition assessment of the last wave of mega-mergers in the agrochem sector. It first focuses on the propertization of nature and the shrinking of the public domain, before exploring the important game-changer of the gene-editing revolution, and the way its regulation may determine the boundaries of possible competition in this sector. Having defined the broader legal and technological context, the next Section focuses on the main trigger for merger assessment, the increasing consolidation of the agrochem industry. This takes various dimensions, although the strict confines of the merger control assessment led competition authorities to ignore some dimensions (common ownership) for which there is still uncertainty as to their welfare effects, in particular in view of the lack of definitive consensus on what is the optimal market structure for innovation. As previously mentioned, in view of their broader socio-economic implications the agrochem mergers raised the thorny issue of integrating in the merger analysis broader concerns than just price effects. Competition authorities were confronted to the choice between, on one side, a more conventional model focusing on consumer welfare, not one limited to price effects but also taking into account other parameters of competition, such as innovation, and, on the other side, that of a model focusing on the broader public policy effects of the merger transactions. Although, competition authorities made the choice of not directly considering public policy concerns, the approach they adopted in assessing innovation effects hints to an effort to surpass the strict boundaries of the relevant market concept in analysing the effect of these mergers.
Keywords: competition law, GMO regulation, innovation, intellectual property rights, patents, plant variety rights, economic concentration, agriculture, merger control
JEL Classification: K21, L4, L66, N50, O13, O30, Q1, Q16, Q18
Suggested Citation: Suggested Citation