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Following a call for information earlier this year, the UK’s Competition and Markets Authority (CMA) has now announced the changes it intends to make to its merger review process. The majority of the changes are to the Phase 2 process, which is only encountered in a minority of formal

Continue Reading Towards a More Interactive Merger Review Process: UK CMA Proposes Amendments

On November 3, 2023, FTC Chair Lina Khan sent a letter addressed to Representative Thomas P. Tiffany describing the FTC’s merger enforcement program during her tenure at the agency. The letter was a response to an inquiry from seven members of congress for information about the costs associated with certain litigated merger challenges brought by

Continue Reading Recently Published FTC Data Confirm Historically Low Number of Merger Enforcement Actions

In quick succession on 7 and 15 November 2023, the Administrative Court of Berlin (Verwaltungsgericht Berlin, the “VG Berlin”) has ruled on procedural matters in foreign direct investment review proceedings of the Federal Ministry for Economic Affairs and Climate Action (the “BMWK”) in two hearings. Because court rulings on these non-public administrative proceedings

Continue Reading Berlin court clarifies significant German FDI issues

Das Verwaltungsgericht Berlin (VG Berlin) hat in zwei kurz aufeinanderfolgenden Verhandlungen vom 7. und 15. November 2023 zu Verfahrensfragen bei Investitionsprüfverfahren des Bundesministeriums für Wirtschaft und Klimaschutz (BMWK) geurteilt. Da Gerichtsentscheidungen zu diesen nichtöffentlichen Verwaltungsverfahren – es geht um die nationale Sicherheit und öffentliche Ordnung – bisher sehr rar sind, werden die gerichtlichen Klarstellungen zur

Continue Reading VG Berlin zu Verfahrensfragen bei der Investitionsprüfung

On October 17, 2023, the U.S. Government Accountability Office (“GAO”) published a report on mergers and acquisitions (“M&A”) in the defense industrial base. The report details the current M&A review process of the Department of Defense (“DOD”) and provides recommendations to proactively assess M&A competition risks.

Currently, DOD’s Industrial Base Policy (“IBP”) office, with input

Continue Reading GAO Recommends Increased Guidance for DOD Mergers & Acquisitions Review

The EU Foreign Subsidies Regulation (FSR) adopted in December 2022 creates a new instrument to prevent foreign subsidies from distorting the European Union (EU) internal market. It aims to fill a perceived regulatory gap left by EU State aid rules applying to subsidies granted by EU countries but not by foreign states. It started to

Continue Reading What does the new EU Foreign Subsidies Regulation (FSR) mean for companies doing business in the EU?

Based on the 11th Amendment to the German Competition Act (Gesetz gegen Wettbewerbsbeschränkungen, “GWB”) that was passed by the German parliament (Bundestag) on 6 July 2023, the GWB will undergo significant reform (the “Reform”). Among other Reform amendments, attention has focused on the Federal Cartel Office’s (Bundeskartellamt, “FCO”) new powers in the context of sector inquiries (Sektoruntersuchungen). According to the Federal Ministry for Economic Affairs and Climate Action (Bundesministerium für Wirtschaft und Klimaschutz, “BMWK”), the amendments intend to strengthen business opportunities for competitors, start-ups and small / medium sized entities.

For the first time under German competition law, the FCO will obtain powers to take remedial measures following sector inquiries, even where the addressee has not been found to have engaged in anti-competitive conduct. Under the Reform, the FCO will be able to take measures where it identifies a significant and continuing ‘disruption of competition’ (Störung des Wettbewerbs) in the relevant market. Such measures will include – as ultima ratio – divestment orders (new Section 32f of the GWB).

In this blog-post we: explain the concept of sector inquiries under the GWB in general; and analyse the key amendments to the FCO’s sector inquiry powers, the most significant changes under the Reform.Continue Reading Sector Inquiries and the German new (and complicated) Competition Toolbox

On July 19, 2023, the Federal Trade Commission and the Antitrust Division of the U.S. Department of Justice (collectively, “the Agencies”) issued a new set of merger guidelines in draft form for public comment (the “Draft Guidelines”).  The Draft Guidelines, if adopted, will replace the Horizontal Merger Guidelines issued in 2010 and the Vertical Merger Guidelines issued in 2020 (the latter of which the FTC withdrew in September 2021).  The updates make significant changes to the guidelines, such as:

  • Lowering the thresholds for when the Agencies are likely to presume that horizontal mergers are illegal;
  • Including—for the first time—a presumption of illegality for certain vertical mergers;
  • Adding guidelines focused on serial acquisitions and acquisitions of potential competitors;
  • Introducing concepts related specifically to multi-sided “platforms”; and
  • Explicitly addressing the effects of transactions on labor markets for the first time.

Continue Reading U.S. Antitrust Agencies Propose Major Changes to Merger Guidelines

The Foreign Subsidies Regulation (“FSR”) enters into force today, 12 July 2023. It creates a new instrument designed to prevent foreign subsidies from distorting the EU internal market (see our blog). The objective is to level the playing field within EU markets between companies subject to scrutiny under the EU State aid rules and companies receiving subsidies from non-EU Member States. Two days ago, on 10 July 2023, the European Commission (the “Commission”) adopted the Implementing Regulation (“IR”), which sets out the procedure and enacts the notifications forms. Continue Reading The EU Foreign Subsidies Regulation starts to apply – what you need to know about the notification obligations

On June 27, 2023, the U.S. Federal Trade Commission (“FTC”), with the concurrence of the Antitrust Division of the Department of Justice (“DOJ”) (together, “the Agencies”), issued a Notice of Proposed Rulemaking (the “Notice”) that proposes extensive changes to the Hart-Scott-Rodino (“HSR”) Act premerger notification form and associated instructions, as well as to the rules implementing the Act. The proposed changes represent the most significant revisions to the requirements that HSR filing persons must satisfy in the nearly 50 years since the inception of the HSR notification process. Continue Reading FTC and DOJ Propose Sweeping Changes to the HSR Form