Seuils d’intervention ou examen ex post pour le contrôle des concentrations dans les marchés digitalisés?

Digital markets are open in principle. But network effects may rapidly favour the first successful entrant and establish high entry barriers for followers. In addition, the exchanges are often valued in data access rather than in traditional money terms. These characteristics challenge our merger control regimes. Mandatory notification systems are particularly vulnerable since merger projects in digital markets may often escape turnover thresholds. This article argues that the Swiss system is not adequate in this new environment. The authors propose the introduction of an ex post control regime for merger projects with a transaction (not turnover) value to be situated between 200 and 400 million Swiss Francs, coupled with the possibility of voluntary notification. This ex post control regime would be subsidiary to the existing mandatory notification regime based on the (very high) turnover thresholds of 2000 million Swiss Francs worldwide or 500 million within Switzerland.