Covington’s four-part video series offers snapshot briefings on key emerging trends in UK Competition Law. In the first part, James Marshall and Sophie Albrighton focus on current trends in merger control. They are joined by guest speaker Louise Nash, Corporate Partner in Covington’s London office with over 20 years’ experience of global acquisitions, divestitures
The Federal Trade Commission (“FTC”) announced on February 4, 2021, that it is temporarily suspending the discretionary practice of granting “early termination” of the Hart-Scott-Rodino (“HSR”) Act waiting period, with support from the Antitrust Division of the U.S. Department of Justice (“DOJ”). The Agencies cited “the unprecedented volume of HSR filings” and “challenging transition period” as the reasons for suspending grants of early termination.…
Continue Reading Early Termination of HSR Waiting Periods Temporarily Suspended
Today, the Federal Trade Commission (“FTC”) published revised thresholds for the Hart-Scott-Rodino (“HSR”) Act, which will take effect on March 4, 2021. Earlier, the FTC also announced new thresholds for Section 8 of the Clayton Act, which governs interlocking directorates. Each of these thresholds is lower for 2021, than for 2020. This is only the second time the HSR Act thresholds, which—like the Section 8 thresholds—are indexed to gross national product, have fallen since annual adjustments began in 2005. In contrast, the maximum daily civil penalty for violations of the HSR Act, which is tied to inflation, has increased.…
Continue Reading FTC Announces New Lower HSR Filing and Interlocking Directorate Thresholds, Higher Civil Penalties
On 19 January 2021, the 10th amendment of the German Act against Restraints of Competition (“ARC”), the so-called ARC Digitisation Act (the “ARC-DA”) entered into force. The ARC-DA brings far-reaching amendments to German competition law, containing inter alia
- the introduction of a new framework to intervene in the digital sector and a revision of the rules on abuse of dominance including enhanced rules for access to data;
- significant increases of merger control notification thresholds applicable across industries; and
- a number of further substantial amendments including a codification of the FCO’s leniency program, the implementation of the European Commission’s ECN+ Directive introducing new powers of the Federal Cartel Office (“FCO”) in the context of inspections, and changes concerning cartel damage claims.
In this blog-post we focus on three core developments: (i) novel powers for intervention in digital markets, (ii) the additional basis for data access claims and (iii) the core amendments to the merger control regime.…
Continue Reading Germany: The wind of change – Substantial competition law amendments
The French Competition Authority (“FCA”) prohibited the proposed acquisition of the hypermarket retailer Géant Casino by its competitor E.Leclerc in the French city of Troyes. It found that the transaction would create a duopoly between the two remaining hypermarkets, Carrefour and E.Leclerc, risk increasing prices, and reduce the diversity of the offer for consumers. It is the first time the FCA has issued a merger prohibition. …
Continue Reading The French Competition Authority’s first merger prohibition
Changes Would Create New Exemption for Minority Acquisitions and Increase Filing Obligations for Certain Entities
Agencies Also Seek Public Comments that Could Lead to Additional Changes to the HSR Rules
The Federal Trade Commission (“FTC”) and the Antitrust Division of the Department of Justice (“DOJ”) (the “Agencies”) announced proposed changes to the premerger notification rules (“Rules”) promulgated under the Hart-Scott-Rodino (“HSR”) Act on September 21, 2020. Although the Agencies’ proposals are extensive, most significantly they would:
- create a new exemption for certain acquisitions that result in holding 10% or less of the voting securities of a target, so long as the acquirer and target do not “already have a competitively significant relationship;” and
- expand the definition of “person”, creating new filing obligations for certain entities, including many investment entities.
The Enterprise Act 2002 (“EA02”) affords the CMA broad discretion in asserting jurisdiction over mergers that may affect a UK market. Under the EA02, a relevant merger situation (“RMS”) exists where (i) two or more enterprises cease to be distinct; and (ii) either the UK turnover of the target exceeds £70 million (the “turnover test”) or the parties supply or acquire at least 25% of a particular good or service in the UK (the “share of supply test”).
The first limb of the RMS test can be satisfied by the acquisition of de jure control, of de facto control (where it is able to control another company’s policy without holding a majority of the voting rights) or of material influence (where it can directly or indirectly materially influence policy without having a controlling interest ). The material influence test continues to be subject to significant debate.
The second limb of the RMS test aims to ensure that a transaction has sufficient nexus to the UK. The share of supply test is designed to enable the review of transactions which, while they do not trigger the turnover test, are of competitive significance in the UK. This share of supply test has been central to the CMA’s expansive assertion of jurisdiction in a number of recent cases. In Amazon/Deliveroo the CMA took an expansive approach to the notion of material influence. In Sabre/Farelogix the CMA adopted an expansive interpretation of what constitutes the supply of services in the UK, and it also took an expansive approach to the share of supply test in each of Roche/Spark and Google/Looker.
On 22 April 2020, the UK Competition and Market Authority (“CMA”) published its guidance on ‘Merger assessments during the Coronavirus (COVID-19) pandemic’ (“the guidance”). Prior to the publication of the guidance, there was some speculation about whether the CMA would be more willing to accept ‘failing firm’ arguments as the economic impact of COVID-19 hit home. However, while the CMA has, as it acknowledged, “been working closely with the government to relax competition law where appropriate”, the guidance and a number of recent CMA cases make it clear that the CMA is not relaxing its merger assessments in response to COVID-19.
Continue Reading The CMA’s Guidance on Merger Assessments During the Coronavirus (COVID-19) Pandemic and Recent CMA Cases
On 28 May 2020, the EU’s General Court (“GC”) annulled the European Commission’s (“Commission”) decision of 11 May 2016 in which the Commission had prohibited the acquisition of Telefónica UK (“O2”) by Hutchison 3G UK (“Three”). It is the first time the EU Courts interpreted the EU Merger Regulation in so-called “gap-cases”, i.e., concentrations in oligopolistic markets which do not result in the creation or strengthening of an individual or collective dominant position.
In the days following the judgment, a number of commentators already emphasised the importance of the GC’s ruling. This post intends to carry out a measured review of the judgment, assess the GC’s findings with respect to each of the Commission’s three theories of harm, and probe whether the judgment is indeed a landmark one.…
Continue Reading The General Court Annuls the Commission’s Decision to Block the Acquisition of Telefónica UK by Hutchison 3G UK – a Landmark Judgment for EU Merger Control?
The Covington US and EU Competition/Antitrust teams will be updating you regularly, through the Covington Competition blog, on the competition/antitrust law implications – both procedural and substantive – of the COVID-19 crisis in the US and the EU. This is our update for Friday 29 May 2020. Today’s new updates as compared to the previous update are highlighted – these are the headlines:
- Today’s US update:
- The FTC’s Director of the Bureau of Competition published a blog post on the failing firm defense. Skip to relevant section.
- Today’s EU updates:
- The Commission has cleared a further number of State aid requests by Member States. Skip to relevant section.