Reframing competitiveness. Innovation, capabilities, and the future of European Merger Law

• Department of Law

This thesis explores what a competitiveness-oriented merger control could look like in EU law. It argues that while innovation has gradually become central to merger enforcement, the prevailing analytical focus remains too narrow and mechanically tied to rivalry. As a result, merger control captures firms’ incentives to innovate only imperfectly and neglects other determinants of innovative performance.

The thesis first revisits the concept of competitiveness in European integration. It demonstrates that competitiveness has long been perceived as a structural concern connected to Europe’s technological lag, yet has been viewed with suspicion in competition law scholarship. This scepticism rests on an outdated understanding of competitiveness. A modern, innovation-centred conception is compatible with the foundations of competition law in general and the logic of merger control in particular.

The thesis then analyses how innovation has been incorporated into EU merger control. Although the legal framework allows for protecting innovation, enforcement has largely relied on rivalry as a proxy. This rivalry-centric approach marginalises the broader economic, technological, and regulatory context in which firms innovate. The thesis shows that pressure to innovate stems from more than rivalry alone and proposes how contextual drivers can be integrated into merger assessment within existing evidentiary principles.

The analysis then turns to a structural blind spot in merger control: the neglect of firms’ capabilities to innovate. While both incentives and capabilities are necessary for innovation, enforcement remains unstructured in its treatment of capabilities. This undermines legal certainty and weakens the Commission’s capacity to assess innovation effects. To address this gap, the thesis develops a capability theory of harm and benefit by introducing a four-quadrant enforcement matrix based on integration potential and resource complementarity. It further proposes an innovation defense built on a two-tier mechanism adapted from the traditional efficiency defense.