TAIWAN Trends and Developments Contributed by: Stephen Wu, Yvonne Hsieh, Wei-Han Wu and Erica Chiu, Lee and Li, Attorneys-at-Law
fied that the parties have submitted all required documents and information. Merger Review in the Era of Digital Economy To address the competition law issues arising from the emergence of novel business models in the digital economy and the rise of technology giants, the Digital Economy Competition Policy Task Force at the TFTC started to draft the White Paper on Competition Policy in the Digital Econ - omy in 2021. Following several rounds of Task Force meetings and Commissioners’ meetings, the TFTC released the draft White Paper on 2 March 2022. After taking opinions collected from various parties into account, the TFTC finalised the draft White Paper and released the official version on 20 December 2022 (“White Paper”). As the White Paper is the TFTC’s first compre - hensive overview of competition issues specific to the digital economy along with its relevant enforcement stance and policy direction, it will definitely play a crucial role in shaping the future trends and development of Taiwan’s regulatory regime on competition issues. Of the key topics explored in the White Paper, “Killer Acquisitions” and the ”Role of Privacy in Merger Review” are relevant to merger control. Killer acquisitions The unresolved issue in this area is whether major digital technology giants’ acquisitions of poten - tially competitive start-ups constitute violations of the competition law. Thus far, the TFTC has no experience of handling so-called “killer acquisi - tions”, even though it has dealt with conglomer - ate combination cases of technology giants and has accumulated law enforcement experience in examining merger cases from the perspective of ”potential competition”. For future enforcement, the White Paper indicates that the TFTC will con -
tinue to monitor the international development trends and adjust relevant review standards and principles in a timely manner. Moreover, when dealing with the issues of killer acquisitions in the future, the TFTC should also consider the benefits arising from technological innovations. Role of privacy in merger review Another of the issues addressed in the White Paper is whether personal data protection is a parameter for assessing competition when reviewing the establishment of a new joint ven - ture. Thus far, the TFTC has not included privacy protection in its analysis, but it will start to con - sider how privacy protection can be internalised in a merger review from the perspective of “qual - ity” competition. Nonetheless, according to the White Paper, if the TFTC wants to examine privacy issues in a merger filing case, it must first determine wheth - er there is competition by the means of privacy protection, and such privacy issues should be considered only when the parties use privacy protection as a way to retain or attract users. In the context of protecting privacy and maintain - ing competition, the TFTC should consider not only the potential disadvantage of a reduction in privacy protection after the merger, but also the potential disadvantage to competition that may result from enhancing privacy protection. The White Paper also recognises the difficulty of quantifying the extent and necessity of privacy protection, which can pose a challenge to law enforcement in terms of seeing privacy protec - tion as a “competition on quality”. In the short term, the TFTC may seek the views of privacy and consumer protection authorities in order to apply the rule of reason test properly and to allow for a more comprehensive analysis in the context of merger reviews. In addition, the
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