Failing firm defence

Mergers

 The Belgian Competition Authority seeks a ’hold separate’ measure to delay the full integration of a merger between two telecoms, one of which is failing, until after the Authority completes its abuse of dominance investigation (Edpnet / Proximus)
Van Bael & Bellis (Brussels)
Belgium 163 contributions 56017 visits
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Van Bael & Bellis (Brussels)
Belgium 64 contributions 28344 visits
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Van Bael & Bellis (Brussels)
Belgium 61 contributions 25882 visits
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Last month, the Belgian Competition Authority ( BCA ) decided to open abuse of dominance proceedings against telecommunications operator Proximus on account of that party’s acquisition of struggling Edpnet (see, Life Sciences News and Insights, 23 March 2023). On 20 April 2023, the BCA’s chief (...)

The US FTC and DOJ issue radical reforms to the national merger guidelines
Jones Day (Washington)
United States 25 contributions 7870 visits
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Jones Day (Washington)
United States 4 contributions 892 visits
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Jones Day (San Francisco)
United States 6 contributions 3256 visits
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The Federal Trade Commission (“FTC”) and U.S. Department of Justice Antitrust Division (“DOJ”) recently introduced proposed revisions to the existing merger guidelines. The new draft guidelines, if enacted in a form similar to the current draft, would represent a seismic shift in how the (...)

The Belgian Competition Authority imposes interim measures on the incumbent telecoms operator following its acquisition of a failing rival following the jurisprudence of the EU Court of Justice in its Towercast ruling (Proximus / EDPnet)
Van Bael & Bellis (Brussels)
Belgium 43 contributions 12011 visits
On 22 June 2023, the Belgian Competition Authority (the “BCA”) imposed interim measures on incumbent telecommunications operator Proximus in the context of its acquisition of the assets of near-bankrupt broadband communications service provider EDPnet. This acquisition did not meet the (...)

The EU Commission approves a merger between two Swiss banks and permits a derogation from the standstill obligation (Credit Suisse / UBS)
European Commission - DG COMP (Brussels)
Belgium 1361 contributions 2922166 visits
Mergers: Commission approves the merger between Credit Suisse and UBS* The European Commission has approved unconditionally, under the EU Merger Regulation, the merger between Credit Suisse and UBS. The Commission concluded that the transaction would not raise competition concerns in the (...)

The French Competition Authority applies the "failing firm" defence for the first time (Mobilux / Conforama)
Cleary Gottlieb Steen & Hamilton (Brussels)
Belgium 24 contributions 53664 visits
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Cleary Gottlieb Steen & Hamilton (Brussels)
Belgium 34 contributions 32643 visits
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Cleary Gottlieb Steen & Hamilton (Paris)
France 12 contributions 20047 visits
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On April 28, 2022, the French Competition Authority (“FCA”) unconditionally cleared the acquisition of home furnishing retailer Conforama by Mobilux, the parent company of competitor But Group. The FCA applied the failing firm defense for the first time. Background On July 8, 2019, Mobilux (...)

The French Competition Authority unconditionally authorizes the acquisition of a furniture retailer by a furniture retail distribution company under the failing firm defence (Mobilux / Conforama)
Schibsted (Oslo)
Norway 26 contributions 17252 visits
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White & Case (Paris)
France 10 contributions 3682 visits
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White & Case (Paris)
France 4 contributions 1576 visits
The French Competition Authority (’FCA’) has unconditionally authorized the acquisition of furniture retailer Conforama by Mobilux under the failing firm defence (’FFD’). Background On 8 July 2019, Mobilux group (’Mobilux’) announced its intention to acquire Conforama. Mobilux is the (...)

The French Competition Authority clears a takeover transaction between two furniture distribution and retail companies on grounds of the failing firm exception (Mobilux / Conforama)
French Competition Authority (Paris)
France 747 contributions 408213 visits
Takeover of Conforama by the But Group: the Autorité identifies competitive risks but clears the transaction without commitment, in application of the failing firm exception* Background In July 2020, the Autorité cleared Mobilux (parent company of the But group) to acquire Conforama (...)

The Mexican Competition Authority updates its merger guidelines which clarify notification requirements for joint ventures and the failing firm defense
Jones Day (Mexico)
Mexico 8 contributions 3034 visits
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Jones Day (Brussels)
Belgium 20 contributions 8302 visits
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Jones Day (Washington)
United States 20 contributions 4084 visits
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Newly revised merger control guidelines ("Guidelines") from the Comisión Federal de Competencia ("COFECE"), Mexico’s competition law authority, clarify when parties to joint ventures or collaborations ("JVs") must report those transactions to COFECE. The Guidelines provide much needed guidance (...)

The Italian Competition Authority applies a COVID-19 related provision to clear a merger in the postal sector (Poste Italiane / Nexive)
Van Bael & Bellis (Brussels)
Belgium 31 contributions 5864 visits
On 22 December 2020, the Italian Competition Authority (“ICA”) cleared the incumbent postal firm Poste Italiane’s (“PI”) acquisition of the sole control over its main rival Nexive Group (“Nexive”). The ICA did not apply the usual merger control rules in this case, but rather cleared the (...)

The UK Competition Authority clears the acquisition of a minority shareholding and certain rights in a food delivery company in its first application of the “failing firm” defence (Amazon / Deliveroo)
Charles River Associates International (CRA) (London)
United States 12 contributions 10607 visits
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Charles River Associates International (CRA) (London)
United Kingdom 2 contributions 1028 visits
On 4 August 2020 the CMA cleared Amazon’s proposed minority investment in Deliveroo. Having previously been concerned that the investment could damage competition by discouraging Amazon from re-entering restaurant food delivery in the UK and altering its competitive incentives in respect of (...)

The UK Competition Authority clears a Big Tech company’s 16% investment in an online food delivery company after finding that it will not substantially lessen competition (Amazon / Deliveroo)
UK Competition & Markets Authority - CMA (London)
United Kingdom 407 contributions 100927 visits
CMA clears Amazon’s 16% investment in Deliveroo* Following an in-depth investigation, the CMA has today cleared Amazon’s 16% investment in Deliveroo after finding that it will not substantially lessen competition. The Competition and Markets Authority (CMA) completed an initial ‘Phase 1’ (...)

The Austrian Competition Authority publishes position paper on the macroeconomic effects of "shutdown mergers" in the context of the COVID-19 crisis
Austrian Competition Authority (Vienna)
Austria 64 contributions 7652 visits
AFCA publishes position paper on the Macroeconomic Effects of Mergers in the Context of the COVID-19 Crisis - "Shutdown Mergers"* The position paper aims to facilitate notifications of Shutdown Mergers. The COVID-19 pandemic and the restrictions put in place to deal with it have triggered (...)

The UK Competition Authority publishes its guidance on merger assessments during the COVID-19 pandemic
Norton Rose Fulbright (Brussels)
United Kingdom 26 contributions 23207 visits
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Latham & Watkins (Brussels)
Belgium 1 contribution 607 visits
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 (...)

The UK Competition Authority clarifies its general approach to assessing mergers and its specific approach to assessing "failing firm" claims during the COVID-19 pandemic
UK Competition & Markets Authority - CMA (London)
United Kingdom 407 contributions 100927 visits
COVID-19: CMA approach to merger assessments* The CMA has today provided more detail on its general approach to assessing mergers during the Coronavirus (COVID-19) pandemic. Following its statement about working practices issued on 18 March, the Competition and Markets Authority (CMA) has (...)

The UK Competition Authority warns that it will not relax its substantive or evidentiary standards for merger investigations during the COVID-19 pandemic
Morgan Lewis (London)
United States 14 contributions 5956 visits
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Morgan Lewis (London)
United Kingdom 27 contributions 10071 visits
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Morgan Lewis (London)
United Kingdom 9 contributions 1895 visits
New guidance from the UK Competition and Markets Authority warns that it will not relax its substantive or evidentiary standards for merger investigations during the coronavirus (COVID-19) pandemic. Statutory deadlines will not be altered, although aspects of investigations may be subject to (...)

The UK Competition Authority publishes guidance on its approach to merger control during the COVID-19 pandemic
Herbert Smith Freehills (London)
United Kingdom 60 contributions 21580 visits
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Herbert Smith Freehills (London)
United Kingdom 45 contributions 9549 visits
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Herbert Smith Freehills (London)
United Kingdom 26 contributions 8753 visits
The Competition and Markets Authority (CMA) has published guidance on its approach to merger control during the COVID-19 pandemic. The guidance deals with procedural issues as well as substantive assessment, and makes it clear that on the whole the CMA’s approach remains one of ‘business as (...)

The UK Competition Authority announces its provisional clearance of a proposed acquisition of a stake in a food delivery company in its first application of “failing firm” defence during the COVID-19 pandemic (Amazon / Deliveroo)
Herbert Smith Freehills (London)
United Kingdom 26 contributions 8753 visits
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Mayer Brown (London)
United Kingdom 44 contributions 18136 visits
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Herbert Smith Freehills (London)
United Kingdom 15 contributions 4613 visits
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On 17 April 2020 the CMA announced its provisional clearance of Amazon’s proposed acquisition of a stake in Deliveroo. The transaction was referred for an in-depth Phase 2 investigation in December 2019, in light of concerns about the impact on competition for the supply of online restaurant (...)

The UK Competition Authority uses the failing firm defence in a merger between a service provider and a food delivery supplier during the COVID-19 pandemic (Amazon / Deliveroo)
ADNOC Group (Abu Dhabi)
United Arab Emirates 29 contributions 5501 visits
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Ashurst (London)
United Kingdom 18 contributions 6296 visits
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Ashurst (London)
United Kingdom 15 contributions 4170 visits
While some businesses may choose to delay transactions in light of Covid-19, many transactions will continue, in particular if the target is in financial distress. In such scenarios, the "failing firm defence" may be an available option for obtaining merger control clearance for transactions (...)

The UK Competition Authority provisionally clears the acquisition of an online food delivery business by a global online shopping company to prevent it from potential bankruptcy due to the economic effects of the COVID-19 outbreak (Amazon / Deliveroo)
UK Competition & Markets Authority - CMA (London)
United Kingdom 407 contributions 100927 visits
CMA provisionally clears Amazon’s investment in Deliveroo* In light of a deterioration in Deliveroo’s financial position as a result of coronavirus (COVID-19), the CMA has provisionally cleared Amazon’s investment in Deliveroo. After completing an initial, Phase 1, investigation, the (...)

The UK Competition Authority provisionally clears the acquisition of an online food delivery business by a global online shopping company (Amazon / Deliveroo)
Bird & Bird (London)
United Kingdom 28 contributions 3543 visits
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London Legends FC
4 contributions 656 visits
The CMA has provisionally cleared Amazon and Deliveroo merger On 17 April 2020, the Competition and Markets Authority ("CMA") provisionally cleared the anticipated acquisition by Amazon of certain rights and a minority shareholding in Deliveroo. The CMA’s initial analysis of the merger (...)

The EU Commission announces that, amid the current COVID-19 crisis, it stands ready to deal with cases where firms can show very compelling reasons to proceed with a merger notification without delay
TikTok (Brussels)
Belgium 4 contributions 804 visits
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Freshfields Bruckhaus Deringer (London)
United Kingdom 8 contributions 2697 visits
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Freshfields Bruckhaus Deringer (London)
United Kingdom 12 contributions 2095 visits
Although many competition authorities are making considerable efforts to ensure “business as usual” during the COVID-19 crisis, the pandemic is inevitably having a material impact on merger control reviews around the globe. In addition to the obvious timing implications, deals are now being, (...)

The Brazilian Competition Authority implements measures in line with WHO recommendations against the spread of the COVID-19
Mattos Filho (Sao Paulo)
Brazil 1 contribution 371 visits
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Mattos Filho (Sao Paulo)
Brazil 3 contributions 1078 visits
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DLA Piper (New York)
United States 5 contributions 2139 visits
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The Brazilian antitrust authority has implemented measures in line with WHO recommendations against the spread of the COVID-19, and activities are being carried out without major impacts, although deadlines in conduct cases are now suspended and delays in certain matters cannot be altogether (...)

The Portuguese Competition Authority clears a merger in the hospital market in applying the failing firm defense (Hospital Particular do Algarve / Hospital São Gonçalo de Lagos)
Portuguese Competition Authority (Lisbon)
Portugal 119 contributions 29999 visits
The AdC adopts a clearance decision on the Grupo HPA Saúde / Hospital São Gonçalo de Lagos merger* The AdC (Autoridade da Concorrência – Portuguese Competition Authority) has adopted a clearance decision on the merger concerning the acquisition of sole control of Hospital São Gonçalo de (...)

The French Competition Authority clears a merger in the metalworking market (Ascoval / British Steel)
French Competition Authority (Paris)
France 747 contributions 408213 visits
Metalworking industry* The Autorité de la concurrence clears the takeover of the Ascoval company by the British Steel group. After the decision of the Strasbourg General court of first instance of 2 May 2019, which validated the takeover of the steel plant Ascoval by the British Steel (...)

The US District Court rejects a failing firm defence and blocks the merger of nuclear waste disposal companies (EnergySolutions / Waste Control Specialists)
US Federal Trade Commission (FTC) (Washington)
United States 2 contributions 1871 visits
Federal judge blocks merger of nuclear waste disposal companies rejecting "failing firm" defense* On June 21, 2017, US District Judge Sue L. Robinson blocked EnergySolutions, Inc.’s proposed acquisition of Waste Control Specialists LLC (WCS), applying a strict standard for the “failing firm” (...)

The Irish Competition Authority approves a merger following the parties’ submission of a failing division argument (Baxter / Fannin)
European Investment Bank (Luxembourg)
Luxembourg 3 contributions 2116 visits
Introduction The Irish Competition and Consumer Protection Commission (CCPC) has approved a merger under the Irish Competition Act 2002 (as amended) following the parties’ submission of a failing division argument. The transaction saw Baxter Healthcare Limited (Baxter) seeking to acquire (...)

The Irish Competition Authority clears the first otherwise anticompetitive merger using the failing firm defense (Baxter / Fannin)
Trinity College Dublin (Dublin)
Ireland 12 contributions 1166 visits
Introduction 1 On 21 October 2015 the Competition and Consumer Protection Commission (CCPC), Ireland’s competition agency, cleared the acquisition by Baxter Healthcare Limited (Baxter) of Fannin Compounding Limited (Fannin), a business division of Fannin Limited which was, in turn, a (...)

The Competition Commission of Singapore clears an acquisition in the airline sector in a landmark decision (Singapore Airline / Tiger Airways)
Allen & Gledhill (Singapore)
Singapore 5 contributions 1560 visits
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Allen & Gledhill (Singapore)
Singapore 5 contributions 1560 visits
On 28 November 2014, the CCS announced that it had cleared the notification for decision in relation to the acquisition of Tiger Airways Holdings Limited (“Tigerair”) by Singapore Airlines Limited (“SIA”) (collectively, the “Parties”) on the grounds of a failing firm defence argument. After (...)

The German Competition Authority clears a merger by applying the failing firm defence on the daily newspapers market (Westfälische Nachrichten / Münstersche Zeitung)
German Competition Authority (Bonn)
Germany 457 contributions 116345 visits
Regional daily Westfälische Nachrichten can take over Münstersche Zeitung* The Bundeskartellamt has cleared plans by the Münster-based publishing house Aschendorff Verlag (which publishes Westfälische Nachrichten) to acquire the regional daily Münstersche Zeitung. The daily is sold by the (...)

The UK Competition and Markets Authority refuses to apply the failing firm defence to clear a merger in phase II (Alliance / IBA)
St John’s Chambers (Bristol)
United Kingdom 15 contributions 5657 visits
United Kingdom Merger Control: Recent Developments in the Failing Firm Defence* On 15 August 2014, the Competition and Markets Authority (“CMA”) approved Alliance Medical Group’s completed acquisition of IBA Molecular’s radioactive medical tracer business. Although IBA’s business was (...)

State Aids

 The EU Court of Justice annuls the General Court’s decision which ruled that the Greek authorities should have known about the State aid public loan when there was no proof that they were aware of it (Larko)
Maastricht University (Maastricht)
Belgium 357 contributions 66532 visits
Advantage Must be Proven, Not Assumed* Introduction When a company gets into financial trouble, public subsidies may provide a temporary respite but hardly ever a permanent solution if the company does not undertake painful restructuring. More than 10 years ago, Larko, a Greek mining (...)

Regulatory

 The Canadian Government introduces the Affordable Housing and Groceries Bill that includes amendments to the Competition Act to repeal the efficiencies defense in mergers
Baker McKenzie (Toronto)
Canada 2 contributions 151 visits
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Baker McKenzie (Toronto)
Canada 2 contributions 151 visits
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Baker McKenzie (Toronto)
Canada 1 contribution 78 visits
In brief On 21 September 2023, the Government of Canada introduced Bill C-56 or the Affordable Housing and Groceries Act ("Bill C-56"), broad legislation that includes amendments to the Competition Act that, if adopted, will repeal the efficiencies defense in mergers, expand the scope of (...)

The Canadian Prime Minister announces proposed changes to the national competition regime to combat inflation challenges
Fasken Martineau DuMoulin (Toronto)
Canada 11 contributions 865 visits
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Fasken Martineau DuMoulin (Toronto)
Canada 34 contributions 1411 visits
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Fasken Martineau DuMoulin (Toronto)
Canada 26 contributions 1235 visits
Prime Minister Announces Proposed Competition Law Changes* On September 14, 2023, Prime Minister Justin Trudeau made a public statement relating to issues of inflation, Canada’s middle class and competition policy. The statement was focused on measures which are aimed at reducing the cost of (...)