parliment flags

Recent developments show the UK Government’s desire to expand their powers to block foreign takeovers. We explore the nature and scope of the proposed legislation and assess its likely consequences. The Conservative Government recently announced a deal with the Democratic Unionist Party to provide it with an overall Parliamentary majority. The present Administration is therefore expected to stay in power for the foreseeable future and it is likely to be able to force through some relatively uncontroversial legislation in the –Read More–

On 1 July 2016, the German Ministry for Economic Affairs published a draft bill for the 9th amendment of the German Act against Restraints of Competition (Gesetz gegen Wettbewerbsbeschränkungen – GWB). The draft bill addresses numerous topics which have been subject to intensive discussions in German competition policy and will bring material changes to German antitrust law. 1. Expanded system of sanctions and fines One of the main pillars of the 9th amendment of the GWB is the introduction of –Read More–

The City of London Law Society Competition Committee has just published its response to the CMA Consultation on “Mergers: Exception to the duty to refer in markets of insufficient importance”. The Committee argue for the adoption of a single de minimis threshold, the level of which should be set at least £15 million, substantially above the current lower threshold of £3 million. Please follow this link to read the full response. Robert Bell is a Partner and Head of EU & Competition –Read More–

Reverse cross border mergers could become a popular device for UK companies seeking to maintain and preserve “passporting” or other EU rights. The mechanism of a reverse cross-border merger (in this context whereby a UK parent company merges with their continental European subsidiary) has not historically been permitted under English law. However the provisions of an EU directive implemented in the UK in 2007 changed that position giving UK company groups that option. The reverse cross border merger mechanism was designed –Read More–

On 28 September 2016, the German government proposed legislation to amend the Act Against Restraints of Competition (GWB) for the ninth time. Presuming that it will pass the further steps required, the proposed amendment is going to expand the merger control for mergers and acquisitions of start-ups, particularly of internet companies. In the future, the turnover of the merged or acquired companies is no longer the only relevant aspect. As well as turnover, the size of the transaction is to –Read More–

On the 16 December 2015, the Supreme Court overturned a decision of the Court of Appeal and held that the Competition and Markets Authority (CMA) had the power to subject the acquisition of the former SeaFrance Dover-Calais ferry business by Eurotunnel to merger control, even though Eurotunnel had only acquired the assets of the business out of liquidation. The ability to subject the acquisition to merger control meant that the CMA had the power to oppose the acquisition and impose –Read More–

BT has requested a fast track reference to Phase 2 merger review for its planned £12 billion takeover of EE. The news of the possible deal has been well received in some quarters with analysts believing the combined network will be in a good position to drive down prices to the benefit of consumers. The merger, if approved, is likely to be of significant concern to competitors as it will create the UK’s first quad-telecoms player covering mobile, TV, broadband –Read More–

On 19th May 2015, the CMA announced that it intends to seek permission to appeal the Court of Appeal judgment in the Eurotunnel/SeaFrance case to the Supreme Court after the Court of Appeal ruled against the CMA on the 15 May 2015. It is the latest development in a case going back to June 2013 and acts as an important clarification on when buying a liquidated company triggers merger control as the acquisition is considered an acquisition of an enterprise –Read More–

On the 21 January, in this live one hour webinar, Rebecca Nelson & Robert Bell will review and discuss the implications of the recent merger control / antitrust reforms and enforcement trends. The webinar will cover: The EU Commission’s plans to extend the EU Merger Regulation to the acquisition of non-controlling minority shareholdings. A review of the EU Antitrust implementing regulation, Council Regulation No 1/2003 proposing convergence of National Competition Authorities investigation decision-making powers and procedures including fines and a –Read More–

On 31 October 2014, the regional competition authority for the Common Market of Eastern and Southern Africa (“COMESA”), the COMESA Competition Commission (the “Commission”), published its finalised Merger Assessment Guidelines (the “Guidelines”). The Guidelines are not legally binding, but rather are intended to offer general guidance on the interpretation of the merger control provisions in the COMESA Competition Regulations 2004 (the “Regulations”), published in January 2013. In particular, the Guidelines have introduced new guidance to assist in determining if a –Read More–

On 9 October 2014 the Hong Kong Competition Commission published draft guidelines to Competition Ordinance (Cap.619). The purpose of these is to pave the way for the eventual coming into force of the Ordinance. The Ordinance itself was enacted in June 2012 and presented somewhat of a revolution in competition law in the territory. The Ordinance includes a full merger control regime. At the present time the Merger Rule only applies to mergers involving licensed parties under the Telecommunications Ordinance –Read More–

The Irish Competition and Consumer Protection Act (“the Act”) was passed on the 28th July 2014 and will make major changes to the Irish competition law regime. All businesses involved with mergers and acquisitions in Ireland would do well to familiarise themselves with the Act and prepare for its changes. The Act is due to enter force in Autumn 2014. The Act includes the following reforms and changes:- Institutional Reform. The Act establishes a new Competition and Consumer Protection Commission (CCPC) –Read More–

On 23 July 2014, the European Commission announced that it had fined Scottish salmon producer Marine Harvest €20 million for acquiring de facto control of a competitor, without the Commission’s approval. The case is of significance in affirming that minority stakes can constitute de facto control and therefore require prior clearance. Under Article 4(1) and 7(1) of the EU Merger Regulation, any merger which meets certain EU turnover thresholds (as this one did) must not be implemented until the acquisition –Read More–

On 9 July 2014, the EU Commission published its White Paper on the reform of the EU Merger Regulation. The Commission’s main proposal is to extend the scope of the EUMR to cover the mandatory notification of certain types of non-controlling minority shareholdings. This proposal will place a significant extra administrative burden on business and could chill business investment. Click here to read the bulletin in full.  

On 2 July 2014, the European Commission granted conditional approval of the German acquisition of E-Plus by Telefonica Deutschland. This merger is set to create Germany’s biggest network, reducing the number of operators from four to three, positioning Deutsche Telekom in second place and Vodafone in third. This follows approval of a similar merger in Ireland with the acquisition of Telefonica Ireland by Hutchison 3G Ireland where the number of networks were also reduced from four to three. With the –Read More–

On 28 May 2014, the European Commission conditionally approved the acquisition of Telefonica (which operates under the “O2” brand) by Hutchinson 3G Ireland (which operates under the “3” brand). The merger is of note not only because the Commission has allowed the reduction of major competitors on the Irish market from four to three but also due to the way the effect of the merger was assessed. The Commission (and the national Irish telecoms regulator who allegedly does not support –Read More–

On 22 April 2014, Novartis and GlaxoSmithKline announced a deal that appears to differ from other large pharmaceutical deals in the offing. Instead of a takeover of the entire business of one of the parties and a model in which a pharma company tries to do it all, each party will acquire assets that strengthen its core area business while disposing of assets outside its core area. The deal would see GSK sell its portfolio of cancer drugs (and opt-in –Read More–

Following the CMA taking up its role as the new UK super competition regulator on 1st April, it has exercised its enhanced hold-separate powers for one of the first times. On 7 April 2014, the Competition and Markets Authority (CMA) made an initial enforcement order under section 72 of the Enterprise Act 2002 against Eden (GM) Limited and Eden Automotive Investments Limited in relation to the completed acquisition by Eden (GM) Limited of two car dealerships from Riders Garages Limited. –Read More–

The Italian Competition Authority (“ICA”) has published new merger control thresholds. Section 16 (1) of Law No. 287 of 1990 provides for the prior notification of all mergers and acquisitions in Italy which fall within certain thresholds. As of 10th March 2014, a concentration will need to be notified to the ICA when it meets the new, higher, cumulative conditions below: (i) The aggregate turnover in Italy of all undertakings involved exceeds € 489 million (instead of the previous € –Read More–

Late last year, the EU Commission announced it had opened an in-depth investigation into the €8-billion merger between the German arm of Telefonica, the Spanish telecoms giant and owner of the O2 network in the UK, and E-Plus, a German network. Telefonica in Germany and E-Plus together represent two of the four major mobile telecoms providers in Germany. Their proposed merger has raised competitive concerns in Germany where mobile prices are already high in comparison to other EU Member States. –Read More–