Failing firm defence

Mergers

The Italian Competition Authority applies a COVID-19 related provision to clear a merger in the postal sector (Poste Italiane / Nexive) Free
Van Bael & Bellis (Brussels)
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 transaction (...)

The UK Competition Authority clears a Big tech’s 16% investment in an online food delivery company after finding that it will not substantially lessen competition (Amazon / Deliveroo)
United Kingdom’s Competition Authority - CMA (London)
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 UK Competition Authority clears at phase II an acquisition of a minority shareholding and certain rights in a food delivery company in its first application of “failing firm” defence (Amazon / Deliveroo) Free
CRA International (London)
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CRA International (London)
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 Austrian Competition Authority publishes position paper on the macroeconomic effects of "shutdown mergers" in the context of the COVID-19 crisis Free
Austrian Competition Authority (Vienna)
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 a (...)

The UK Competition Authority publishes guidance on its approach to merger control during the COVID-19 pandemic Free
Herbert Smith Freehills (London)
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Herbert Smith Freehills (London)
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Herbert Smith Freehills (London)
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 publishes its guidance on merger assessments during COVID-19 pandemic Free
Covington & Burling (Brussels)
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Covington & Burling (Brussels)
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 (...)

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 Free
United Kingdom’s Competition Authority - CMA (London)
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 set (...)

The Ecuadorian Competition Authority publishes new merger review procedure due to COVID-19 crisis Free
Pérez Bustamante & Ponce (Quito)
COVID-19: New, fast-track merger review procedure introduced in Ecuador Historically, crises have been catalysts of legal and political change. On occasion of the COVID-19 emergency, this week (April 20th, 2020) the Ecuadorian competition agency (‘Superintendencia de Control del Poder de (...)

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)
Ashurst (London)
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Ashurst (London)
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Ashurst (London)
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 an acquisition between an online food delivery business by a global online shopping company (Amazon / Deliveroo)
Bird & Bird (London)
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Bird & Bird (London)
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 UK Competition Authority provisionally clears acquisition of an online food delivery business by a global online shopping company to prevent it from bankruptcy likely to happen due to economic effects of the COVID-19 outbreak (Amazon / Deliveroo) Free
United Kingdom’s Competition Authority - CMA (London)
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 Competition (...)

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 Free
Freshfields Bruckhaus Deringer (Brussels)
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Freshfields Bruckhaus Deringer (London)
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Freshfields Bruckhaus Deringer (London)
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, and (...)

The Brazilian Competition Authority implements measures in line with WHO recommendations against the spread of the COVID-19 Free
Mattos Filho Advogados (Sao Paulo)
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Mattos Filho, Veiga Filho, Marrey Jr. & Quiroga (Sao Paulo)
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Mattos Filho Veiga Filho Marrey Jr & Quiroga (New York)
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 defence (HSGL / HPA Group)
Portuguese Competition Authority (Lisbon)
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 Lagos (...)

The French Competition Authority clears a merger in the metalworking market (Ascoval / British Steel)
French Competition Authority (Paris)
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 group, (...)

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)
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 clears the first otherwise anticompetitive merger using the failing firm defence (Baxter / Fannin)
Trinity College Dublin
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 subsidiary (...)

The Irish Competition and Consumer Protection Commission approves a merger following the parties’ submission of a failing division argument (Baxter / Fannin)
European Investment Bank (Luxembourg)
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 sole (...)

The Danish Competition Authority requests criminal indictment for withholding in a merger assessment (Metro Cash & Carry)
Gorrissen Federspiel (Copenhagen)
METRO Cash & Carry risks fine in Danish merger case* The Danish Competition and Consumer Authority (DCCA) has reported METRO Cash & Carry (METRO) to the State Prosecutor for Serious Economic and International Crime for failing to submit relevant information regarding a notified merger. (...)

The Competition Commission of Singapore clears an acquisition in the airline sector in a landmark decision (Singapore Airline / Tiger Airways)
Allen & Gledhill (Singapore)
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Allen & Gledhill (Singapore)
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)
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 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 loss-making, (...)

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)
College of Europe (Bruges)
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 (...)

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