Mergers judicial review

Mergers

The EU Court of Justice rules that the Commission violated rights of defence when it failed to share the final economic model used in its decision to block a merger (UPS / TNT)
Jones Day (Brussels)
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Jones Day (Paris)
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Jones Day (Brussels)
In Short The Development: The European Court of Justice ("ECJ") ruled that the European Commission ("Commission") violated UPS’s rights of defense when it failed to provide UPS with the final economic model used in its decision to block UPS’s proposed acquisition of TNT in 2013. The Result: The (...)

The EU Court of Justice dismisses the Commission’s appeal against the annulment of its decision to prohibit a merger in the parcel delivery market (UPS / TNT)
White & Case (Brussels)
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White & Case (Brussels)
EU Court confirms the need for transparency and full disclosure of economic analyses in EU merger cases (UPS/TNT)* On 16 January 2019, the Court of Justice of the European Union (“CJEU” or “Court”) dismissed the European Commission’s appeal against the annulment of its decision to prohibit the (...)

The EU Court of Justice upholds the General Court’s ruling that annulled the Commission’s decision prohibiting a merger in the parcel delivery market (UPS / TNT)
Van Bael & Bellis (Brussels)
On 19 January 2019, the Court of Justice of the European Union (“ECJ”) upheld on due process grounds the 2017 judgment of the General Court (“GC”) annulling the decision of the European Commission (“Commission”) in the UPS/TNT Express merger (Case C-265/17P, Commission v. United Parcel Service). The (...)

The EU Court of Justice Advocate General Kokott issues an opinion supporting the rights of defence of merging parties (UPS / TNT)
Van Bael & Bellis (Brussels)
On 25 July 2018, Advocate General (“AG”) Kokott issued an Opinion in which she concludes that the General Court (“GC”) was correct to annul the Commission’s 2013 decision to prohibit UPS’s acquisition of its package delivery rival, TNT Express. In the decision, the Commission relied upon a “price (...)

The EU General Court annuls the Commission’s rejection of an airline’s request for a waiver of pricing commitments, ordering that they be reviewed (Lufthansa)
McDermott Will & Emery (Brussels)
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McDermott Will & Emery (Paris)
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McDermott Will & Emery (Brussels)
Deutsche Lufthansa AG is a joint founder member of Star Alliance, the largest global airline alliance. In addition to the Star Alliance Agreement, Lufthansa concluded with Scandinavian Airlines System (SAS) a bilateral alliance agreement, a marketing and sales agreement, and a bilateral joint (...)

The EU General Court finds that the Commission must re-assess companies request to waive their pricing commitments (Lufthansa)
Gomez Acebo & Pombo (Brussels)
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Gomez Acebo & Pombo (Brussels)
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Gomez Acebo & Pombo (Brussels)
In 2005, the European Commission cleared the planned acquisition of Swiss by Lufthansa subject to a a number of commitments, which included conditions on fares with regard to the Zurich-Stockholm and Zurich-Warsaw routes. On 4 November 2013, Lufthansa and Swiss submitted a request for a (...)

The EU General Court orders Commission to re-examine a request to review merger commitment (Lufthansa)
Van Bael & Bellis (Brussels)
On 16 May 2018, the General Court (“GC”) ruled that the European Commission had failed to properly examine a request by Lufthansa to review a merger commitment given by Lufthansa in order to secure EU merger clearance of its acquisition of Swiss Airlines. In order to allay competition concerns (...)

The Swedish Patent and Market Court upholds decision by Stockholm District Court that excessively long non-compete clauses in share purchase agreements do not constitute infringement of competition rules by object (Alfa Quality Moving)
European Commission (Brussels)
Non-compete clauses included in share purchase agreements for a period of five years do not constitute an infringement of competition rules by object* On the 29th of November, the Swedish Patent and Market Court of appeal ruled that anti-competitive clauses included in share purchase (...)

The EU General Court orders fresh review of a merger (Liberty Global / Ziggo)
Dechert (Brussels)
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Dechert (Brussels)
The EU lower court has overturned a 2014 merger clearance by the European Commission (EC) following an appeal by a third party. Overturning the clearance does not mean that the deal is now prohibited. Instead, the case goes back to the EC, and the parties have to re-notify. At best this is (...)

The EU General Court annuls a Commission’s conditional merger clearance in the audiovisual sector (Liberty Global / Ziggo)
Van Bael & Bellis (Brussels)
On 26 October 2017, the General Court annulled the European Commission’s conditional merger clearance decision in Liberty Global/Ziggo. The Commission had approved the acquisition of Ziggo by Dutch rival cable TV operator Liberty Global in 2014, subject to extensive conditions including the (...)

The EU General Court dismisses an appeal against a Commission decision for implementing acquisition of sole control without first obtaining approval under the EU Merger Regulation (Marine Harvest / Morpol)
Van Bael & Bellis (Brussels)
On 26 October 2017, the General Court dismissed an appeal by Marine Harvest against a € 20 million fine imposed on it by the Commission for implementing its acquisition of sole control over Morpol without rst obtaining approval under the EU Merger Regulation (see VBB on Competition Law, Volume (...)

The German Higher Regional Court in Düsseldorf upholds the decision by German Competition Authority to prohibit merger between two supermarket chains (EDEKA / Kaiser’s Tengelmann)
European Commission (Brussels)
Düsseldorf Higher Regional Court confirms prohibition of EDEKA/Kaiser’s Tengelmann merger* Bonn, 24 August 2017: Yesterday the Düsseldorf Higher Regional Court rejected appeals filed by EDEKA and Kaiser´s Tengelmann against the Bundeskartellamt’s prohibition of the merger between the super market (...)

The U.S. Delaware Supreme Court affirms termination of merger agreement due to the inability of a party to deliver a necessary tax opinion (Energy Transfer / Williams)
White & Case (New York)
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White & Case (New York)
Resolving a dispute surrounding one of the largest M&A deals of 2015, the Delaware Supreme Court affirmed the Delaware Chancery Court’s decision allowing Energy Transfer Equity, L.P. to terminate its proposed acquisition of The Williams Companies, Inc. due to the inability of Energy (...)

The EU General Court annuls a prohibition merger decision and finds that the Commission had failed to properly communicate the final version of its econometric analysis (UPS / TNT)
Van Bael & Bellis (Brussels)
On 7 March 2017, the General Court (“GC”) annulled the European Commission’s decision to prohibit UPS’ acquisition of TNT Express under the EU Merger Regulation. By way of background, UPS notified the acquisition of TNT Express to the Commission in June 2012. Following an in-depth Phase II (...)

The EU General Court annuls the Commission’s decision to prohibit a merger in the International express package delivery sector (UPS / TNT)
CRA International (London)
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CRA International (London)
The General Court annulled on 7 March 2017 the European Commission’s decision in 2013 to prohibit UPS’ proposed acquisition of TNT. The judgment was much awaited also because of its potential for clarifying the role of efficiencies in merger review. In practice, the Court overturned the decision (...)

The UK Competition Appeals Tribunal upholds a decision to prohibit a merger in the energy and commodities trading sector (ICE / Trayport)
CRA International (London)
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CRA International (London)
The CAT upheld on 6 March 2017 the CMA’s decision to prohibit ICE’s acquisition of the energy and commodities trading platform Trayport. The CMA’s original decision found that ICE could use ownership of Trayport to foreclose competitors, shifting liquidity to its own exchanges. It was the first (...)

The Supreme Administrative Court of the Czech Republic confirms fine for not complying with structural commitments imposed in merger approval decision (Rewe / Plus Discount)
Skils (Prague)
On 21 December 2016, the Supreme Administrative court rejected cassation appeal of REWE Zentralfinanz eG (“REWE”) against the previous judgment of the Regional Court in Brno which rejected claim against the Czech Office for Protection of Competition (“Office”) alleging that the Office acted (...)

The Higher Regional Court of Düsseldorf suspends ministerial authorisation of an acquisition (Kaiser’s Tengelmann / EDEKA)
Van Bael & Bellis (Brussels)
In a decision of 12 July 2016, the Higher Regional Court of Düsseldorf suspended the ministerial authorisation of the acquisition of the supermarket Kaiser’s Tengelmann by its competitor EDEKA. The German Minister of Economic Affairs, Sigmar Gabriel, issued a ministerial authorisation in March (...)

The Organisation for the Economic Co-operation and Development holds a roundtable on jurisdictional nexus in merger control regimes
OECD - Competition Division
Executive summary, by the Secretariat * Considering the discussion at the roundtable held by Working Party No.3 on Co-operation and Enforcement on 15June 2016, the delegates’ submissions, the panellists’ presentations and the Secretariat’s background paper, several points are noted: 1. Merger (...)

The Dutch Industry Appeals Tribunal annuls decision blocking bakery merger (Continental Bakeries / A.A. ter Beek)
Van Bael & Bellis (Brussels)
On 11 February 2016, the Dutch Industry Appeals Tribunal (the “Tribunal”), the administrative court of last instance in competition law matters, annulled the decision of the Dutch Competition Authority (“DCA”) prohibiting the merger between Continental Bakeries and A.A. ter Beek. The Tribunal held (...)

The EU Commission corrects second time around a merger decision in the publishing sector after a defect was raised by the EU Court of Justice (Editions Odile Jacob)
McDermott Will & Emery (Paris)
As a general proposition, when the validity of a European Commission antitrust decision is challenged before the General Court of the European Union (GCEU), the procedure is one of judicial review, not a retrial on the merits (although the GCEU does have special jurisdiction to increase or (...)

The U.S. District Court for the Northern District of Ohio denies the FTC’s bid to prevent company from acquiring its alleged potential competitor (Steris / Synergy Health)
Skadden, Arps, Slate, Meagher & Flom (New York)
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Skadden, Arps, Slate, Meagher & Flom (New York)
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Skadden, Arps, Slate, Meagher & Flom (Washington DC)
On September 24, 2015, the U.S. District Court for the Northern District of Ohio denied the Federal Trade Commission’s (FTC) bid to enjoin Steris Corporation (Steris) from acquiring its alleged potential competitor, Synergy Health plc (Synergy). The loss breaks a string of victories in merger (...)

The Indian Competition Appellate Tribunal reverses the Indian Competition Authority’s fine imposed on a travel agency for not notifying an otherwise exempt transaction (Thomas Cook / Sterling)
Vaish Associates (New Delhi)
Competition Appellate Tribunal sets aside penalty imposed on Thomas Cook & others for nonnotification of an otherwise exempted transaction* In its first decision on substantive aspects of merger control, the Competition Appellate Tribunal (COMPAT) by its order dated August 26, 2015 has set (...)

The UK Competition and Markets Authority seeks permission to appeal to the Supreme Court on what constitutes an enterprise for the purposes of merger control (Eurotunnel / SeaFrance / MyFerryLink)
Simmons & Simmons (London)
Unconvinced by the outcome of the Eurotunnel case, the CMA wants guidance from the Supreme Court on what constitutes an enterprise for the purposes of UK merger control. The CMA is seeking permission to appeal the Court of Appeal judgment of 15 May 2015 in the Eurotunnel case. That judgment (...)

The UK Court of Appeal rules on the concept of “enterprise” under UK merger control (Eurotunnel)
Herbert Smith Freehills (London)
All views expressed are strictly personal views of the author. The present case note does not constitute legal advice and should not be relied on as such. On 15 May 2015, the Court of Appeal (by a 2:1 majority) upheld a challenge to the Competition Appeal Tribunal (the "CAT") ruling which (...)

The UK Court of Appeals brings some additional clarity on assets acquisition (Eurotunnel / SeaFrance)
Blackstone Chambers (London)
Asset acquisitions revisited* Earlier this year, I suggested that the law on when an asset acquisition might amount to a merger was somewhat opaque. The Court of Appeal’s decision in Eurotunnel II [2015] EWCA Civ 487 has brought some additional clarity, although the messy procedural history of (...)

The EU General Court upholds a Commission decision to prohibit a merger of two stock exchanges of financial derivatives (NYSE Euronext / Deutsche Börse)
Clifford Chance (Madrid)
Background information The ruling of the EU General Court of 9 March 2015 has fully upheld the decision in which the European Commission (the “Commission”) blocked the concentration between NYSE Euronext (“NYX”) and Deutsche Börse. NYX is a U.S holding formed in 2007 through the merger of NYSE (...)

The Czech Supreme Administrative Court rules that complainants in merger approval cases cannot appeal National Competition Authority decisions (Severni energeticka)
Skils (Prague)
On 26 February 2015, the Supreme Administrative court cancelled the previous judgment of the Regional Court in Brno which held that a complainant in merger approval proceedings may appeal the decision of the Office for Protection of Competition (“Office”) to the extent it did not address its (...)

Judicial review of merger decisions: An overview of EU and national case law
Freshfields Bruckhaus Deringer (Brussels)
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Sullivan & Cromwell (Brussels)
A survey of merger litigation in Europe, 25 years after the entry into force of the first EU merger regulation and the subsequent merger control proliferation across the Member States certainly deserves a special issue of e-Concurrence. Indeed, a high-level review of merger cases brought (...)

The UK Court of Appeal upholds the judgment of the Competition Appeal Tribunal requiring an airline to reduce its minority shareholding in rival airline (Ryanair / Aer Lingus)
British Competition Authority - CMA (London)
CMA welcomes Court of Appeal Judgment on Ryanair/Aer Lingus* The CMA welcomes today’s judgment by the Court Of Appeal dismissing Ryanair’s challenge on all 3 grounds. The judgment followed an appeal by Ryanair Holdings plc (Ryanair) against an earlier decision made by the Competition Appeal (...)

A U.S. Court of Appeals upholds that the theory of harm articulated by the FTC in hospital merger cases is fully applicable to physician acquisition cases and that the positive impact on competition of the claimed efficiencies must be clearly demonstrated (St. Luke’s Health System / Saltzer Medical Group)
BakerHostetler (Washington)
“Oh help me, please doctor, I’m damaged”—What does the Future Hold for Hospital-Physician Acquisitions?* With the ink still drying on the Ninth Circuit’s opinion affirming the Idaho federal district court’s order requiring St. Luke’s Health System to unwind its acquisition of Saltzer Medical Group—a (...)

The U.S. Court of Appeals for the Ninth Circuit provides significant judicial guidance for future health care mergers, casting serious doubt on the viability of a “post-merger efficiencies defense” to a prima facie case of a Section 7 violation (St. Luke’s Health System / Saltzer Medical Group)
Sheppard Mullin (Los Angeles)
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Sheppard Mullin (Century City)
In Highly-Anticipated Decision, Ninth Circuit Affirms That Hospital-Physician Group Merger in St. Luke’s Violated Section 7 And Casts Serious Doubt on Viability of Efficiencies Defense* On February 10, 2015, the Ninth Circuit issued its highly-anticipated decision at the intersection of health (...)

The Canadian Supreme Court considers for the first time the analytical framework for prevention of competition cases and the statutory efficiency defence in a very small merger case (Tervita)
Borden Ladner Gervais (Toronto)
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Gowling WLG (Toronto)
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Gowling WLG (Toronto)
Tiny Merger Will Have Major Implications for Merger Review in Canada* On Jan. 22, 2015, the Supreme Court of Canada released the long anticipated decision in Tervita Corp. v. Canada (Commissioner of Competition) in which it considered, for the first time, the analytical framework for (...)

The Canadian Supreme Court clarifies the notion of "prevention" of competition and revitalizes efficiencies defence in a merger case (Tervita)
Stikeman Elliott (Ottawa)
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Stikeman Elliott (Toronto)
Supreme Court clarifies "prevention" and revitalizes efficiencies defence in Tervita merger case* Canada’s Supreme Court of Canada issued its much-anticipated decision in the case of Tervita Corp. v. Canada Commissioner of Competition yesterday, upholding the Federal Court of Appeal’s (and the (...)

The Australian Competition Tribunal grants authorisation to complete acquisition under the proposed conditions on the market for electricity wholesale and retail markets in NSW (AGL Energy / Macquarie Generation)
Australian Competition and Consumer Commission (Canberra)
ACCC disappointed by Tribunal decision authorising AGL to acquire Macquarie Generation* The Australian Competition Tribunal (the Tribunal) has decided to grant conditional authorisation to AGL Energy Limited’s (AGL) proposed acquisition of Macquarie Generation. The Tribunal concluded that the (...)

The Australian Competition Tribunal receives an application for authorisation to acquire the assets of a power station following the opposition decision issued by the ACCC (AGL Energy / Macquarie Generation)
Australian Competition and Consumer Commission (Canberra)
AGL to seek Australian Competition Tribunal decision on Macquarie Generation* The Australian Competition and Consumer Commission acknowledges AGL’s application to the Australian Competition Tribunal which was filed today seeking an authorisation that an acquisition of Macquarie Generation be (...)

The Turkish Council of State annuls the decision of the Turkish Competition Authority which conditionally cleared the merger of the two largest cinema chains in Turkey in Phase II (AFM / Mars)
University of Sussex (Brighton)
This study analyses the judgment of the Turkish Council of State in which it has annulled the decision of the Turkish Competition Authority to conditionally clear in Phase II the merger of the two largest cinema chains in Turkey on the grounds that the merger remedies were insufficient to (...)

The Brazilian Federal Supreme Court overrules the Brazilian Competition Authority’s appeal regarding the Central Bank’s exclusive jurisdiction for merger control in financial institutions (Brazilian Central Bank)
Inglez, Werneck, Ramos, Cury e Françolin Advogados (Sao Paulo)
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Inglez, Werneck, Ramos, Cury e Françolin Advogados (Sao Paulo)
The Brazilian Federal Supreme Court has overruled the Brazilian Competition Authority’s appeal regarding the verdict issued by the Brazilian Superior Court of Justice regarding the Brazilian Central Bank’s exclusive jurisdiction for merger control involving banks and financial institutions in (...)

The Danish Supreme Court upholds two decisions by the Danish Competition Council in relation to commitments given in a merger case (Nykredit)
Danish Competition and Consumer Authority (Copenhagen)
On 3 June 2014, the Danish Supreme Court upheld two decisions by the Danish Competition Council in which it decided (i) that a commitment without any specific mention of time limit was unlimited in time; and (i) that the Danish Competition Council enjoys a margin of appreciation in matters of (...)

The Italian Administrative Court of first instance orders the recommencement of the awarding of a public selection procedure for a breach of disclosure duty in the telecommunications sector (Telecom Italia / Fastweb / Vitrociset / Consip)
University of London - School of Economics Birkbeck College
On the 13th of May 2014, the Italian Administrative Court of first instance (the “Court”) held a judgment against a Joint-venture that is formed between Fastweb S.p.A. (“Fastweb”) and Vitrociset S.p.A. (“Vitrociset”) for a breach of disclosure duties relating to technical specifications. (...)

The German Federal Court of Justice clarifies requirements for state liability in illegal prohibition of a merger by the Federal Competition Authority (GN Store Nord II)
Jones Day (Brussels)
The case before the Oberlandesgericht, (Higher District Court of Düsseldorf (OLG Düsseldorf)) related to a damages claim brought by Phonak against the Federal Republic of Germany based on the German rules of state liability (Section 839(1)(1) of the German Civil Code (BGB) in conjunction with (...)

The Italian Regional Administrative Court of Lazio provides some lightening on the so–called “overflowing” and their relationship with the protection of competition (Italgas Acega Aps / Isontina Reti Gas)
Rucellai & Raffaelli (Milan)
1. Case examined by T.A.R. Lazio (Regional Administrative Court of Lazio) judgment, n. 3047, Italgas-Acegas-Aps / Isontina Reti Gas of March 20th 2014 . The decision concerns an appeal from a decision of the Italian Competition Authority (the “Authority”) prohibiting a concentration pursuant (...)

The UK Competition Appeal Tribunal upholds the Competition Commission’s decision ordering partial divestment of an airline’s minority shareholding in its direct competitor (Ryanair)
The University of Manchester
On 7 March 2014, the Competition Appeal Tribunal (“the CAT”) handed down its judgement upholding the findings of the Competition Commission (“the CC”) in its final report (“the Report”) concluding that Ryanair’s 29.82% minority shareholding in Aer Lingus resulted in a substantial lessening of (...)

The UK Competition Appeal Tribunal dismisses an appeal against divestiture of minority stake (Ryanair / Aer Lingus)
King’s College (London)
Background of the case Ryanair has been attempting to take over its rival Irish airline Aer Lingus since 2006 when it made its first bid. The COM prohibited the merger but also found it had no power to require Ryanair to divest itself of the minority stake of 25% in Aer Lingus. In the appeal (...)

The UK Competition Appeal Tribunal dismisses an appeal against divestiture order under UK Enterprise Act 2002 (Ryanair)
Herbert Smith Freehills (London)
Ryanair Holdings Plc (“Ryanair”) and Aer Lingus Group plc (“Aer Lingus”) are Irish low-cost airline competitors that share more than 40 routes from and to Ireland. On 7 March 2014 in case 1219/4/8/13 Ryanair Holdings PLC v Competition Commission [2014] CAT 3, the Competition Appeal Tribunal ("CAT" (...)

The UK Competition Appeal Tribunal rules on non-controlling minority shareholding and reduces share to a maximum of 5% (Ryanair)
Queen Mary University (London)
The decision of the Competition Appeal Tribunal (CAT) Ryanair Holdings plc v Competition Commission on 7th March 2014 concerns the anti-competitive effects originated by financial links between competitors. In particular, the decision regards the effects on competition of Ryanair’s (...)

The South African Minister of Economic Development intervenes in favour of allowing the implementation of an acquisition in the agricultural sector (AFGRI / AgriGroupe)
Primerio (Washington)
Worrying trends in South African merger control – Government’s abuse of process continues unabated* Secret deals sideline competition authorities In what can only be described as a significant step backwards in ensuring that the more established of the emerging economies enforce the application (...)

A U.S. district court orders the largest care system in Idaho to divest independent multi-specialty physician practice (St. Luke’s Health System / Saltzer Medical)
Wolters Kluwer (Riverwoods)
Combination of Idaho’s Largest Health System and Largest Physician Practice Must Be Unwound* Within the span of about two weeks, each of the federal antitrust agencies has been handed a major win in their merger enforcement efforts. Last Friday, it was the Federal Trade Commission’s turn. The (...)

The German Federal Court of Justice decides that turnover from goods delivered to a production facility in Germany constitutes domestic turnover, even if the actual decision to buy these goods was taken by a central purchasing organisation outside Germany (KVR)
Jones Day (Brussels)
In its Viscose fibres judgement, the Bundesgerichtshof (Federal Court of Justice (BGH)) held that turnover from goods delivered to a production facility in Germany constitutes domestic turnover, even if the actual decision to buy these goods was taken by the central purchasing organisation of a (...)

The South African Constitutional Court sets aside costs order related to decision by the Competition Appeal Court to overturn merger prohibition decision (Pioneer Hi-Bred International / Pannar Seeds)
RBB Economics (London)
How to (almost) gut an agency – the final twist in the maize seeds case?* On 18 December 2013, the Constitutional Court of South Africa (“Constitutional Court”) handed down its decision in an appeal by the Competition Commission (“Commission”) against an unprecedented costs order imposed by the (...)

The EU General Court confirms that the merged parties are not dominant in the internet visual communications market and rejects interoperability issues raised by appellants (Microsoft / Skype)
Ashurst (Milan)
EU Court upholds the Commission’s decision on the Microsoft/Skype deal* On 11 December 2013 the EU’s General Court (the “Court”) handed down its ruling concerning Microsoft’s acquisition of Skype. The Court held that the Commission rightly considered that the transaction does not restrict (...)

The EU General Court rejects a rival’s claim and gives the green signal for an acquisition in the communications services market (Microsoft / Skype)
Shardul Amarchand Mangaldas (New Delhi)
By its decision dated 11 December 2013, Luxembourg based European General Court approves the acquisition of Skype by Microsoft. Background On 02.09.2011 the EU Commission was notified of a proposed concentration by which, Microsoft Corporation, USA acquired 100% of the outstanding shares and (...)

The Competition Tribunal of South Africa approves a merger in the petrochemical and mining sector within four hours of receiving the Competition Commission’s recommendation (Stefanutti Stocks / Energotec)
Nortons (Sandton)
South African Competition Tribunal approves merger in record time of 4 hours* The South African Competition Tribunal received notice of, heard and approved the acquisition by construction firm, Stefanutti Stocks (Pty) Ltd, of Energotec, which is a division of First Strut (Pty) Ltd, and (...)

The French Supreme Administrative Court upholds the French Competition Authority’s decision sanctioning a food distributor for failing to notify a concentration (Colruyt)
Gide Loyrette Nouel (Paris)
On 24 June 2013, the French Supreme Administrative Court confirmed the French Competition Authority (“FCA”)‘s decision n°12-D-12 dated 11 May 2012 imposing a €392.000 fine on Etablissements Fr. Colruyt (“Ets Fr Colruyt”), the parent company of group Colruyt, for failing to comply with article L.430-3 (...)

The UK Competition Appeal Tribunal indicates the extraterritorial reach of UK merger control (Akzo Nobel)
Norton Rose Fulbright (London)
The proposed acquisition by the Netherlands company Akzo Nobel of shares in an Italian competitor, Metlac, taking Akzo’s interest in Metlac from a pre-existing 49 per cent to full 100 per cent ownership, was notified to nine competition authorities across the world under their merger control (...)

The UK Competition Appeal Tribunal upholds NCA’s decision to prohibit the merger of two foreign companies in the market for the supply of metal packaging coatings for beer and beverage cans (Akzo Nobel / Metlac)
The University of Manchester
On 21 June 2013, the Competition Appeal Tribunal (the “CAT”) upheld the UK Competition Commission’s (“CC”) finding on 21 December 2012 that Akzo Nobel N.V.’s (“Akzo Nobel”) proposed acquisition of Metlac Holding S.r.l. (“Metlac Holding”) would lead to a substantial lessening of competition in the market (...)

The UK Competition Appeal Tribunal applies the single economic unit theory and finds that the CC has authority to prevent the concentration between two non-resident corporations on a segment of the metal packaging coatings market (AkzoNobel Holland / Metlac Italy)
Blackstone Chambers (London)
The Competition Commission’s power to block transactions outside the UK* The judgment in Akzo Nobel NV v Competition Commission [2013] CAT 13 is an important decision on the ability of the Competition Commission (“CC”) to block transactions between companies outside of the UK. However, neither (...)

A U.S. District Court starts hearings in a class action case where the plaintiffs argue that a previously concluded DoJ settlement failed to ameliorate the competitive harm occasioned by the removal of a direct competitor and price maverick (AB InBev / Grupo Modelo)
King & Wood Mallesons (Sydney)
This article was originally published on In Competition by King & Wood Mallesons (click here). Closing time* Given our previous posts on the topic you would be forgiven for thinking we have a particular interest in Corona sales. Rather, the AB InBev / Grupo Modelo merger has been (...)

The Finnish Market Court conditionally approves a merger in the plumbing and indoor climate systems sector and rejects the Competition Authority’s proposal to block the creation of a joint venture (Uponor / KWH)
Roschier (Helsinki)
On 24 May 2013 the Finnish Market Court handed down its first decision in a case utilising the recently enacted New Competition Act and the so-called SIEC (significant impediment of effective competition) test. The Market Court broke ground on many levels when it rejected the Competition and (...)

The Czech Supreme Administrative Court cancels the decision of the Regional Court which has refused a producer of lignite access to the file of a competitor in a merger control case (Litvínovská Uhelná)
Kinstellar (Prague)
Subject matter of the case On 3 August 2008, Litvínovská uhelná a.s. (“Litvínovská uhelná”), a producer of lignite and at that time a part of the Czech Coal Group (one of the major players in the Czech energy sector) filed a complaint to the Czech Office for Protection of Competition (the “Office”) (...)

The EU Court of Justice rejects electricity supplier’s request to suspend deadline to decide whether to sell off power plant project (EDF)
Van Bael & Bellis (Brussels)
On 7 March 2013, the European Court of Justice (“ECJ”) rejected the application for interim measures by Électricité de France (“EDF”), which had sought to postpone its obligation to decide whether to sell or invest in a particular power plant project, as required by previous merger commitments. (...)

The Regional Court of Cologne rejects damages claim by a hearing aid manufacturer against the Federal Cartel Office following a merger prohibition decision (GN Store Nord)
Van Bael & Bellis (Brussels)
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Van Bael & Bellis (Brussels)
In a judgment of 26 February 2013, the German Regional Court of Cologne rejected an action for damages in the amount of more than € 1.1 billion by Danish hearing-aid manufacturer GN Store Nord A/S against the German Federal Cartel Office (FCO). GN Store sought compensation from the FCO for (...)

The US Supreme Court confirms the narrow scope of "State Action" doctrine (FTC / Phoebe Putney)
Jones Day (Washington DC)
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Jones Day (Washington DC)
In FTC v. Phoebe Putney, the Supreme Court has unanimously reversed the Eleventh Circuit holding that a Georgia hospital authority’s acquisition of a hospital was covered by state-action immunity, emphasizing that "state-action immunity is disfavoured". The Supreme Court held that, as the State (...)

The South African Competition Tribunal approves conditionally large merger on the market for infant-nutrition products (Nestlé / Pfizer)
Primerio (Washington)
S.A. Clears 3-to-2 Infant Nutrition Merger with Remedies* The South African Competition Tribunal has green-lighted the almost $12bn (R106bn) Nestlé/Pfizer deal, which will combine the largest and 3rd-largest infant-nutrition companies in the South African republic, leaving competitor Aspen in (...)

A US Court grants a stay to the DoJ’s challenge giving time for further reflection whether or not an improved remedy package is prone to eliminate competition concerns on the market for beer distribution (AB InBEV)
King & Wood Mallesons (Sydney)
Judge calls time out on beer merger* Since our most recent post on the proposed merger of AB InBev and Grupo Modelo earlier this month there have been several developments. As you’ll recall, AB InBev was previously offering to sell its stake in Crown Imports (Modelo’s US distributor of beers (...)

The U.S. DOJ challenges the acquisition by the market leader of product ratings and reviews platforms of its alleged closest competitor (Bazaarvoice / PowerReviews)
Wilson Sonsini Goodrich & Rosati (Washington)
On January 10, 2013, the U.S. Department of Justice sued Bazaarvoice, Inc. alleging that its acquisition of PowerReviews, Inc. in June 2012 violated Section 7 of the Clayton Act. The complaint alleges that Bazaarvoice was the market leader for product ratings and reviews platforms (PRR (...)

The French Council of State reduces € 30 M fine imposed on pay-TV operators for failure to comply with commitments in merger case (Vivendi / Canal Plus)
Van Bael & Bellis (Brussels)
On 21 December 2012, the French Council of State (the highest administrative court in France) reduced a fine imposed on pay-TV operators Vivendi and Canal Plus for breaching commitments entered into in the context of the conditional clearance of their acquisition of TV channels TPS and (...)

The English Court of Appeal rejects low cost airline’s appeal of UK Competition Commission probe (Ryanair / Aer Lingus)
Van Bael & Bellis (Brussels)
On 13 December 2012, the English Court of Appeal (CA) rejected Ryanair’s appeal against a Competition Appeal Tribunal (CAT) judgment allowing the Competition Commission (CC) to review Ryanair’s acquisition of a minority stake in rival airline company Aer Lingus. In August 2012, the CAT (...)

The England and Wales Court of Appeal holds that the concept “overlapping jurisdictions” is relevant merely to situations where Article 21 ECMR is contingently applicable (Ryanair)
OECD - Competition Division (Paris)
Ryanair v. Competition Commission and Aer Lingus in the Court of Appeal (Civil Division) [2012] CAT 29* Majority and Minority Shareholders Commuting between Dublin, Brussels and London Keeping with this blog’s recent focus on aviation related cases, this post will look into a decision by the (...)

The EU General Court upholds fine imposed on energy corporation for failing to notify a transaction highlighting the importance of compliance with EU merger control filing requirements (Electrabel)
Herbert Smith Freehills (Brussels)
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Novartis (Brussels)
1. Introduction On 12 December 2012 the EU General Court dismissed Electrabel’s appeal against the €20 million fine the European Commission had imposed on it for failing to notify a transaction - the acquisition of a minority shareholding - to the Commission under the EU Merger Regulation (...)

The EU Court of Justice dismisses appeals against General Court judgments in merger case in the publishing industry (Lagardère / VUP)
Van Bael & Bellis (Brussels)
On 6 November 2012, the European Court of Justice dismissed two appeals by Editions Odile Jacob against judgments of the General Court in the Lagardère/VUP case. The acquisition by Lagardère of part of rival publishing company Vivendi Universal Publishing was approved by the Commission (...)

The French Constitutional Council upholds the constitutionality of the French Competition Authority’s power to withdraw merger clearance decisions and of its internal organisation (Canal + / Vivendi)
Herbert Smith Freehills (Paris)
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French Competition Authority (Paris)
Following a request for a preliminary ruling on constitutionality by Groupe Canal Plus (“Canal Plus”) and Vivendi Universal (“Vivendi”, parent company of Canal Plus), on 12 October 2012 the French Constitutional Council upheld the constitutionality of the power of the French Competition Authority (...)

The Spanish National Court annuls a merger control clearance decision because the notification thresholds were not reached (Consenur / Ecotec)
Baker McKenzie (Madrid)
The Spanish National Court (Audiencia Nacional, "AN") adopted a judgment on 19 September 2012 annulling the Decision of the Spanish National Competition Commission (Comisión Nacional de la Competencia, "CNC") of 10 March 2010 that authorised the concentration consisting in the acquisition by (...)

The UK Competition Appeal Tribunal rules on Competition Commission’s decision to continue investigation on a merger in the aviation sector (Ryanair / Aer Lingus)
Herbert Smith Freehills (Brussels)
The acquisition of Ryanair’s minority stake in Aer Lingus is currently under investigation by the Competition Commission (CC) under the merger control regime of the Enterprise Act 2002, despite a series of jurisdictional challenges and a potentially conflicting transaction (a renewed bid by (...)

The EU Court of Justice restricts access to Commission file in merger cases (Éditions Odile Jacob / Lagardère / Natexis VUP and Agrofert / PKN Orlen / Unipetrol)
Van Bael & Bellis (Brussels)
On 28 June 2012, the European Court of Justice handed down two judgments on appeals by the European Commission in cases concerning the disclosure to third parties of documents relating to proceedings under the EU Merger Regulation. The first case concerns the Commission’s refusal to (...)

The UK Competition Appeal Tribunal rejects appeal against merger remedies in the healthcare waste services industry (Stericycle / Ecowaste Southwest)
St John’s Chambers (Bristol)
UPDATE: Stericycle/Ecowaste merger: Competition Appeal Tribunal rejects appeal against remedies* An earlier post considered the Competition Commission’s (“CC”) prohibition of Stericycle’s completed acquisition of a competitor, Ecowaste Southwest. Having found that the merger would have resulted in (...)

The Bulgarian Supreme Court confirms that the acquisition of assets in the course of a judicial sale constituted a concentration in the meaning of the merger control rules (Oktopod Invest / Slunchev Dar)
Kinstellar (Sofia)
The Bulgarian Supreme Administrative Court (the “SAC”) alleviated any doubts as to the qualification of asset purchases at judicial sales as a concentration in the meaning of merger control rules. The SAC upheld a ruling of the Bulgarian Commission for the Protection of Competition that such (...)

The South African Competition Appeal Court upholds Competition Tribunal’s conditional clearance of a retail market acquisition (Walmart / Massmart)
Computer and Communications Industry Association (CCIA) (Washington D.C.)
On 9 March 2012, the South African Competition Appeal Court upheld the Competition Tribunal’s decision to clear the Walmart/Massmart merger conditioned to several obligations that consider public interest needs. The South African Court concluded, after several months of dispute and business (...)

The German Federal Court of Justice rules on appeal against decision prohibiting petrol station deal (Total / OMV)
Van Bael & Bellis (Brussels)
In a recently published judgment of 6 December 2011, the German Federal Court of Justice overturned a judgment in which the Higher Regional Court of Düsseldorf annulled a decision of the German Federal Cartel Office prohibiting the acquisition by Total Deutschland GmbH of 59 petrol (...)

A U.S. district court stops a merger between two digital do-it-yourself tax preparation software providers as the proposed combination would have likely led to a lessening of competition in the relevant market (H&R Block / TaxAct)
United Nations Development Programme (UNDP)
DOJ prevents H&R block acquisition as epic battle with AT&T looms* In what may be one of the more ironic uses of taxpayer-funded litigation, the DOJ scored an important victory by preventing tax-prep software company H&R Block’s acquisition of its competitor - TaxAct. U.S. District (...)

A U.S. federal district court prohibits proposed combination of tax software makers as it violates S. 7 of the Clayton Act (H&R Block / TaxAct)
Wolters Kluwer (Riverwoods)
Proposed Combination of Tax Software Makers Violates Section 7 of the Clayton Act* The federal district court in Washington, D.C. yesterday released its Memorandum Opinion explaining its October 31 order enjoining H&R Block, Inc.’s proposed acquisition of 2SS Holdings, Inc.—the maker of (...)

The U.S. District Court for the District of Columbia grants DoJ request to enjoin a merger between two digital do-it-yourself tax preparation software providers (H&R Block / TaxAct)
Fordham Competition Law Institute - FCLI (New York)
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Skadden, Arps, Slate, Meagher & Flom (New York)
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Skadden, Arps, Slate, Meagher & Flom (Palo Alto)
This article has been nominated by the Business Steering Committee for the business category, mergers section of the 2012 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. On October 31, 2011, the U.S. District Court for the District of Columbia is sued (...)

The US District Court for the District of Columbia blocks a merger in the digital do-it-yourself tax preparation software industry providing insights on evidence to use on S. 7 challenge (H&R Block / TaxAct)
Fordham Competition Law Institute - FCLI (New York)
United States v. H&R Block: The DOJ Invokes Brown Shoe to Shed the Oracle Albatross* On November 10, 2011, the U.S. Department of Justice won its first fully litigated merger challenge since its 2004 defeat in United States v. Oracle Corp. In the interim, the Federal Trade Commission had (...)

The U.S. Court of Appeals for the Eigth Circuit rejects the FTC’s attempt to identify a relevant product market in a pharmaceuticals related merger (Lundbeck)
Cleveland-Marshall School of Law
FTC v. Lundbeck: Why, God, Why?* What really has the world come to when a merger to monopoly followed by a 1300% price increase survives Section 7 challenge? That, sadly, seems to be the final result in Federal Trade Commission v. Lundbeck, which the Eighth Circuit affirmed last Friday. (...)

The UK Competition Appeal Tribunal upholds the OFT’s jurisdiction to review the acquisition of a minority shareholding in a merger in the airline sector (Ryanair / Aer Lingus)
Vinge (Stockholm)
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Latham & Watkins (London)
I. Introduction On 28 July 2011 the Competition Appeal Tribunal (“CAT”) handed down a unanimous judgment, upholding the UK Office of Fair Trading’s (“OFT”) jurisdiction to review Ryanair‘s 29.8% minority shareholding in rival Irish airline Aer Lingus, which the former acquired almost five years ago. (...)

The UK Competition Appeal Tribunal confirms that the OFT is not time-barred from investigating the acquisition of a competitor’s minority shareholding implemented five years previously under UK merger control rules (Ryanair / Aer Lingus)
University of Southampton
On 28 July 2011, the UK Competition Appeal Tribunal (CAT) found that the Office of Fair Trading (OFT) is not out of time to consider referring the acquisition of a minority shareholding by Ryanair Holdings plc (Ryanair) in its competitor, Aer Lingus Group plc (Aer Lingus), to the Competition (...)

The UK Competition Appeal Tribunal upholds the OFT’s decision that it is "in time" to investigate the acquisition of a minority shareholding in a merger case concerning the air transport sector (Ryanair / Aer Lingus)
Herbert Smith Freehills (Brussels)
All views expressed are strictly personal views of the author. The present case note does not constitute legal advice and should not be relied on as such. The author would like to thank Natalia Sivakumaran, associate at Herbert Smith LLP in London, for her assistance with the preparation of (...)

The Brussels Court of Appeal confirms Competition Council’s decision amending condition imposed on cable network operator’s acquisition of pay-TV provider (Telenet / Canal+)
Van Bael & Bellis (Brussels)
In a judgment of 17 May 2011, the Brussels Court of Appeal confirmed the Belgian Competition Council’s decision of 29 November 2010 amending a condition that had been imposed in 2003 on cable network operator Telenet’s acquisition of pay-TV provider Canal+. The condition in question (...)

The Indian Competition Commission publishes new rules for mergers review
Linklaters (Brussels)
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Linklaters (Washington)
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UK Competition Appeal Tribunal (London)
After years of debate, the Indian Government recently announced that the Competition Commission of India ("CCI") will be given powers to approve or prohibit certain mergers, acquisitions and joint ventures. The new powers take effect on 1 June 2011. This memorandum reflects the key procedural (...)

The President of the EU General Court lifts obligation to provide a bank guarantee (Westfälische Drahtindustrie / Papus Industrie Beteiligungen)
Van Bael & Bellis (Brussels)
On 13 April 2011, the President of the General Court (“GC”) suspended the execution of the fining decision of the European Commission against Westfälische Drahtindustrie GmbH, Westfälische Drahtindustrie Verwaltungsgesellschaft mbH&Co. KG (“WDV”) and Papus Industrie Beteiligungen GmbH&Co. KG (...)

The Polish Competition Court upholds a merger prohibition decision in the market for railway turnouts (Cogifer / Koltram)
Van Bael & Bellis (Brussels)
The Polish Court of Competition and Consumer Protection recently upheld two decisions of the Polish Competition Authority prohibiting concentrations, one in the market for railway turnouts and another in the market for waste battery treatment. In the first judgment, adopted on 5 April 2011, (...)

The Polish Competition Court upholds a merger prohibition decision in the market for waste battery treatment (Baterpol / Orzeł Biały)
Van Bael & Bellis (Brussels)
The Polish Court of Competition and Consumer Protection recently upheld two decisions of the Polish Competition Authority prohibiting concentrations, one in the market for railway turnouts and another in the market for waste battery treatment. In the second case, decided on 13 April 2011, the (...)

The Serbian Supreme Court of Cassation holds that the rules on determining the abuse of dominant position are inapplicable in a case of conditional merger clearance (Delta Agrar)
Faculty of Law - University of Macau
On 11 March 2011 the Supreme Cassation Court of Serbia (VKS) quashed the judgment of the Administrative Court, which annulled the conditional merger clearance delivered by the Serbian Competition Authority (KZK) in the Delta Agrar/Florida Bel case. The VKS held inter alia that the rules on (...)

The U.S. District Court for the Central District of California denies the FTC’s request for a preliminary injunction in a medical laboratory merger case (LabCorp / Westcliff)
Skadden, Arps, Slate, Meagher & Flom (New York)
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Skadden, Arps, Slate, Meagher & Flom (Palo Alto)
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Kirkland & Ellis (New York)
In a decision broadly critical of the Federal Trade Commission’s case challenging the acquisition of Westcliff Medical Laboratories, Inc., a medical laboratory company, by Laboratory Corporation of America (LabCorp), Judge Andrew Guilford of the U.S. District Court for the Central District of (...)

The US Court of Appeals for the 7th circuit rejects an antitrust lawsuit that challenged premerger planning and information exchanges between two health insurers (Omnicare / UnitedHealth)
Jones Day (Washington DC)
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Jones Day (Houston)
This article has been selected for the business category, mergers section of the 2012 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. Last week the U.S. Court of Appeals for the Seventh Circuit rejected an antitrust lawsuit by institutional pharmacy (...)

The UK Competition Appeal Tribunal receives a claim of jurisdiction from a leading low-cost airline (Ryanair)
Van Bael & Bellis (Brussels)
Irish air carrier Ryanair has recently launched an appeal before the UK Competition Appeal Tribunal (CAT) against a decision of the Office of Fair Trading (OFT) finding that the OFT has jurisdiction under UK merger control law to review Ryanair’s acquisition of a minority stake in competing (...)

The Italian Supreme Administrative Court sets aside a decision of the NCA imposing a fine for failure to comply with a decision prohibiting a merger (Tetra Pak)
European Commission (Brussels)
I. Introduction By judgment of 29 December 2010, the Consiglio di Stato (Italian Supreme Administrative Court, the «Court») set aside a decision of 29 July 2004 (the «Decision») by which the Italian Competition Authority (the «ICA») had imposed a fine on Tetra Pak International S.A. («Tetra Pak») (...)

The U.S. FTC and the State of Minnesota appeal a district court’s decision on a relevant market issue in a pharmaceutical merger case (Lundbeck)
Cleveland-Marshall School of Law
Some Reflections on the Lundbeck Appeal: Will Pharmaceuticals Get a Blanket Antitrust Immunity? And Is Quality Competition No Longer Protected by Antitrust?* A decision to watch for this year is the Eighth Circuit’s pending consideration of FTC v. Lundbeck, Inc., 2010-2 Trade Cases ¶77,160; 2010 (...)

The Düsseldorf Court of Appeals overturns a Bundeskartellamt merger prohibition addressing the issue of future potential competition’s test under German law (Neue Pressegesellscxhaft / Zeitungsverlag Schwäbisch Hall)
Heinz & Zagrosek (Köln)
Court raises question on the test for considering future potential competition under German merger control rules* The case concerns the question under which conditions the possible future creation of potential competition can be considered to strengthen a dominant position under German merger (...)

The US FTC sues to undo completed acquisition in the healthcare industry approved by bankruptcy court (LabCorp, Westcliff)
Jones Day (Washington DC)
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Jones Day (Washington DC)
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Skadden, Arps, Slate, Meagher & Flom (Washington DC)
The Federal Trade Commission has filed an administrative lawsuit seeking to undo Laboratory Corporation of America’s (« LabCorp ») acquisition of Westcliff Medical Laboratories, Inc. (« Westcliff »). According to the agency’s December 1 complaint, the merger will substantially lessen competition (...)

The U.S. FTC sues to undo completed acquisition in the healthcare industry approved by bankruptcy court (LabCorp / Westcliff)
Jones Day (Washington DC)
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Jones Day (Washington DC)
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Skadden, Arps, Slate, Meagher & Flom (Washington DC)
The Federal Trade Commission has filed an administrative lawsuit seeking to undo Laboratory Corporation of America’s (« LabCorp ») acquisition of Westcliff Medical Laboratories, Inc. (« Westcliff »). According to the agency’s December 1 complaint, the merger will substantially lessen competition (...)

A U.S. court of appeal denies divestiture as equitable relief for Missouri consumers seeking to enjoin the transaction between the two largest brewers under the Clayton Act (Ginsburg / InBev)
Benjamin N. Cardozo School of Law
I. Introduction Section 7 of the Clayton Act outlaws acquisitions, directly or indirectly, the whole or any part of the stock or other share capital, the effect of such acquisition, may be substantially to lessen competition, or tend to create a monopoly. In this cause, to establish liability (...)

The German Federal Court of Justice limits judicial review of merger clearances subject to commitments (EDEKA / Plus)
Heinz & Zagrosek (Köln)
Federal Court of Justice limits judicial review of merger clearances subject to commitments in Germany (EDEKA/Plus)* On October 5, 2010, the Federal Court of Justice upheld the Düsseldorf Court of Appeals’ rejection of an appeal against the conditions of a merger clearance decision brought by (...)

The EU General Court upholds a Commission’s phase II merger approval in the publishing sector and rehabilitates parking arrangement (Odile Jacob)
Skadden, Arps, Slate, Meagher & Flom (Brussels)
Odile Jacob: the rehabilitation of the parking arrangement* More than six years after the case was launched, the General Court rendered its judgment in Case T-279/04, Editions Odile Jacob Sas v. Commission, relating to the appeal against a 2004 decision of the European Commission approving the (...)

The US District Court for the District of Minnesota dismisses FTC complaint seeking divestiture and disgorgement remedy in consummated acquisition in the healthcare industry (Lundbeck)
Jones Day (Washington DC)
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Jones Day (Washington DC)
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Jones Day (Washington DC)
In a decision that was filed under seal in late August but released publicly just last week, the U.S. District Court for the District of Minnesota dismissed with prejudice the complaint filed by the Federal Trade Commission (FTC) and the State of Minnesota challenging the already-consummated (...)

The U.S. District Court of Minnesota rules against the FTC by holding that it has failed to prove the relevant market requirement in a pharmaceutical merger case (Lundbeck)
Wolters Kluwer (Riverwoods)
FTC Loses Suit against Drug Maker over 2006 Acquisition* The Federal Trade Commission recently suffered a significant setback in its merger enforcement efforts when the federal district court in Minneapolis rejected an action brought by the agency along with the State of Minnesota against (...)

The Düsseldorf Court of Appeals annuls the decision by the German Federal Cartel Office which prohibited a petrol distributor acquiring 59 petrol stations (Total / OMV)
Fried Frank Harris Shriver & Jacobson (London)
I. Introduction On August 4, 2010, the Düsseldorf Court of Appeals (the Court) annulled the decision by the German Federal Cartel Office (FCO) which prohibited Total Deutschland GmbH (Total) acquiring 59 petrol stations from OMV Deutschland GmbH (OMV). This judgment is a setback for the FCO, (...)

The Bulgarian Supreme Administrative Court approves of the NCA’s qualifying, with reference to Art. 3(5)(c) of Reg. 139/2004, a national-dimension acquisition of control as a concentration notifiable under the Competition Act but quashes the fine for non-notification (Allianz Leasing Bulgaria)
University Paris Dauphine
I. Introduction 1. An ex officio investigation of Allianz Bulgaria Holding’s non-notified acquisition of Allianz Leasing Bulgaria (formerly Balkan Star Services), a vehicle leasing company, gave both the Competition Protection Commission (hereinafter ‘CPC’) and the Supreme Administrative Court (...)

The EU General Court dismisses an airline’s appeal against the Commission’s decision not to divest a minority shareholding post-merger (Ryanair / Aer Lingus)
DG ENER (Brussels)
Yes, we can (prohibit) – The Ryanair/Aer Lingus merger before the Court* I. Introduction In two judgments handed down on 6 July 2010, the General Court upheld the Commission’s June 2007 decision to prohibit the planned merger between Ryanair and Aer Lingus (Case T-342/07) and dismissed Aer (...)

The EU Court of First Instance upholds the Commission’s decision to prohibit a merger between two airlines companies (Ryanair / Aer Lingus)
DG ENER (Brussels)
Yes, we can (prohibit) – The Ryanair/Aer Lingus merger before the Court* I. Introduction In two judgments handed down on 6 July 2010, the General Court upheld the Commission’s June 2007 decision to prohibit the planned merger between Ryanair and Aer Lingus (Case T-342/07) and dismissed Aer (...)

The EU Court of Justice orders Commission to pay € 50,000 in damages for errors made in a merger control proceedings (Schneider Electric)
Van Bael & Bellis (Brussels)
In a recently published order of 9 June 2010, the European Court of Justice set the amount of damages that the European Commission must pay to Schneider Electric SA. This order follows the European Court’s judgment of 16 July 2009 finding that, because of errors made by the Commission in the (...)

The German Federal Court confirms the dismissal of an appeal against a media merger prohibition (Axel Springer / ProSiebenSat.1 Media)
Rocket Internet SE
Decision In the ruling dated 8.6.2010 (KVR 4/09) the German Federal Supreme Court confirmed that the media merger between Axel Springer AG and broadcasting company ProSiebenSat.1 Media AG on in January 2006 by the German Competition Authority (Bundeskartellamt) would lead to increased (...)

The UK Competition Appeal Tribunal accepts argument that Competition Commission finding on counterfactual was irrational (Stagecoach)
Herbert Smith Freehills (Brussels)
Introduction and background to the CAT judgment The merger of Stagecoach Group Plc (“Stagecoach”) and Preston Bus Limited (“PBL”) was referred to the UK Competition Commission (the “CC”) by the UK Office of Fair Trading on 28 May 2009. According to section 36 of the Enterprise Act 2002 (the “Act”), (...)

The UK Competition Commission clears an entertainment industry merger for the second time without remedies following appeal to the Competition Appeal Tribunal (Ticketmaster / Live Nation)
Oxera (London)
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Oxera (London)
On May 7th 2010, the UK Competition Commission (CC) cleared unconditionally the completed merger between Ticketmaster Entertainment, Inc (Ticketmaster) and Live Nation, Inc (Live Nation). The case had previously been cleared by the CC in December 2009, but following a successful appeal by a (...)

The German Federal Court of Justice finds a merger lawful, reversing the Court of Appeal’s prohibition ruling (Phonak / GN Store)
Allen & Overy (Hamburg)
The German Federal Court of Justice (the Bundesgerichtshof or “BGH”) in its decision dated April 20, 2010 held that the intended acquisition by Swiss Phonak Holding (today Sonova Holding AG, hereinafter referred to as “Phonak”) of GN ReSound-Group (“GN ReSound”) from the Danish firm GN Store Nord A/S (...)

The German Federal Court of Justice reverses the Düsseldorf Court of Appeal’s decision ruling in favor of a merger in the hearing aids sector and addressing the issue of collective dominance test under German law (Phonak / GN ReSound)
Heinz & Zagrosek (Köln)
Phonak/GN: Federal Court of Justice further specifies collective dominance test under German law* On April 20, 2010, the German Federal Court of Justice quashed the Düsseldorf Court of Appeal’s decision in Phonak/GN, which upheld the FCO’s merger prohibition of the acquisition of GN ReSound by (...)

The U.S. DoJ and the FTC propose revisions to the horizontal merger guidelines
Skadden, Arps, Slate, Meagher & Flom (Washington DC)
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Jones Day (Sillicon Valley)
Last week, the United States federal antitrust agencies-the Department of Justice Antitrust Division and the Federal Trade Commission-released proposed revisions to the Horizontal Merger Guidelines. The Guidelines, which have been revised several times over the past 40 years, delineate how the (...)

The US FTC and DoJ releases for public comment a draft version of their new joint horizontal merger guidelines offering the opportunity to debate about the role of market definition and unilateral effects analysis
Skadden, Arps, Slate, Meagher & Flom (Brussels)
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Skadden, Arps, Slate, Meagher & Flom (Washington DC)
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Kirkland & Ellis (New York)
As the credit and capital markets continue to revive, companies around the world considering a return to greater mergers and acquisitions activity may be right to wonder whether recent antitrust law developments should deter those considerations. Notwithstanding the attention the various new (...)

The U.S. District Court for the Northern District of California reaffirms the importance of market definition in antitrust merger analysis (Golden Gate Pharmacy / Pfizer)
Skadden, Arps, Slate, Meagher & Flom (Washington DC)
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Skadden, Arps, Slate, Meagher & Flom (New York)
On April 16, 2010, Judge Maxine M. Chesney of the U.S. District Court for the Northern District of California dismissed a complaint raising a private antitrust challenge to the merger of Pfizer, Inc. and Wyeth Pharmaceuticals, because she concluded that the complaint failed sufficiently to (...)

The EU General Court examines a claim from a French local authority who seeks damages for Commission’s failure to impose conditions in a merger (Communauté de communes de Lacq)
Van Bael & Bellis (Brussels)
On 5 June 2010, details were published in the Official Journal of the European Union of a damages action before the General Court brought by Communauté de communes de Lacq (a French local authority) against the European Union, requesting compensation for injury allegedly suffered by the (...)

The Brussels Court of Appeal partially annuls Competition Council’s decision concerning a merger in the cinema industry (Kinepolis)
Van Bael & Bellis (Brussels)
On 11 March 2010, the Brussels Court of Appeal handed down a judgment which partially annuls a decision of the Competition Council of 1 October 2008 (the “Decision”). In the Decision, the Competition Council partially upheld the conditions it had imposed in 1997 when approving the merger (...)

The UK Competition Appeal Tribunal orders the Competition Commission to reconsider its clearance of a merger on the basis of absence of vertical concerns (Ticketmaster / Live Nation)
Herbert Smith Freehills (Brussels)
Following a reference of the case to it from the OFT, on 22 December 2009, the UK Competition Commission ("CC") announced that it had decided to clear unconditionally the proposed merger of Ticketmaster Entertainment Inc. ("Ticketmaster"), a ticketing agent, and Live Nation Inc. ("Live (...)

The French Council of State confirms the clearance of a merger in the free TV sector (TF1 / NT1 / Monte-Carlo Participations)
Herbert Smith Freehills (Paris)
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French Competition Authority (Paris)
Background On 26 January 2010, the French Competition Authority (the “FCA”) authorized the acquisition by TF1 group (“TF1”), the parent company of leading free TV channel TF1, of sole control over NT1 and TMC, two free Digital Terrestrial Television channels ("DTT channels"). Prior to this (...)

The English Court of Appeal confirms divestment remedies in a TV merger (BSkyB / ITV)
DLA Piper (London)
On 21 January 2010, the Court of Appeal dismissed an application by British Sky Broadcasting Group plc (Sky) to set aside the decision requiring it to divest part of its shareholding in ITV plc (ITV). The Court of Appeal upheld the conclusion that Sky’s acquisition of a 17.9% shareholding in ITV (...)

The French Competition Authority clears, subject to conditions, a merger on the sector of distribution of DIY, decoration and gardening items (Mr Bricolage / Passerelle)
French Competition Authority (Paris)
Press Release published on the official website of the French Competition Authority. Subject to several conditions, the Autorité de la concurrence authorizes the acquisition of the Passerelle group by Mr Bricolage.* The Autorité de la concurrence has examined the acquisition of the Passerelle (...)

The Competition Appeal Tribunal upholds the appeal against the Competition Commission break-up decision on airport services market (BAA Ltd)
Talwar, Thakore & Associates (New Delhi)
2009 has seen the disposal of Gatwick airport following an adverse finding by the UK Competition Commission (CC) in its investigation of the airport services market. The market investigation report on BAA airports by the CC was successfully appealed by BAA. The Competition Appeal Tribunal (...)

The French Competition Authority publishes guidelines regarding the control of mergers and acquisitions
French Competition Authority (Paris)
Press Release published on the official website of the French Competition Authority. The Autorité de la concurrence publishes guidelines regarding the control of mergers and acquisitions.* On its Internet site, the Autorité de la concurrence has published new draft guidelines on the control of (...)

Judicial review of merger decisions: An overview of EU and national case law
Sidley Austin (Brussels)
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Voka - Flemish Chamber of Commerce
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Sidley Austin (London)
In a landmark judgment of 19 March 2009, the Irish High Court annulled a prohibition decision of the Irish Competition Authority (“CA”) blocking the acquisition by Kerry Group of Breeo Foods. As a result of the annulment, Breeo Foods became part of the Kerry Group on 26 March 2009 , just seven (...)

The EU Court of First Instance dismisses an appeal against a Commission’s decision clearing a joint venture in the music sector (Impala)
Van Bael & Bellis (Brussels)
On 30 September 2009, the Court of First Instance adopted an order dismissing an appeal brought by the Independent Music Publishers and Labels Association (Impala) against the European Commission’s second decision clearing the joint venture between the global recorded music businesses of Sony (...)

The French Council of State confirms the clearance of a merger in the audit and accounting services sector and clarifies the legal test for collective dominance (Deloitte / JMF)
Dechert (Paris)
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Herbert Smith Freehills (Paris)
Background This case arose out of the clearance granted by the French Minister of the Economy ("Minister") for the acquisition by Deloitte of Janny Marque Futur ("JMF"), the holding company of BDO Marque et Gendrot ("BDO"). Through this transaction, Deloitte, one of the "Big Four", acquired (...)

The Italian Supreme Administrative Court interprets the EC Merger Regulation and denies national jurisdiction over a merger seven years after its clearance (Mediobanca)
European Court of Justice (Luxembourg)
Introduction By a judgment of 16 July 2009, the Consiglio di Stato(Italian Supreme Administrative Court, the “Court”) has set aside a judgment of the Regional Administrative Tribunal of Latium (the “TAR Latium”) that recognized jurisdiction of the Italian Competition Authority (the “ICA”) to (...)

The EU Court of First Instance dismisses an appeal against Commission’s first decision on a joint venture in the music sector (Impala)
Van Bael & Bellis (Brussels)
On 30 June 2009, the Court of First Instance adopted an order dismissing Impala‘s appeal against the European Commission’s first decision clearing the joint venture between the global recorded music businesses of Sony Corporation and Bertelsmann Music Group (BMG). This dismissal is the most (...)

The German Federal Court of Justice decides on the compatibility of non-competition clauses to the detriment of minority shareholders with Art. 101 Para. 1 TFEU and Sec. 1 ARC (Gratiszeitung Hallo)
Gleiss Lutz (Munich)
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Milbank, Tweed, Hadley & McCloy (Munich)
On 23 June 2009, the German Federal Court of Justice overruled three judgments of the Higher Regional Court of Düsseldorf and remitted the cases back for further proceedings. In the joint proceedings before the Federal Court of Justice, the court had to decide whether a non-competition clause to (...)

The Brussels Court of Appeal annuls a decision of the Competition Council which lifted a must-offer obligation previously imposed on a TV operator as a merger remedy (Telenet / Canal+)
Corsan
This decision of the Brussels Court of Appeal is the most recent episode in a seemingly never-ending quarrel between Belgacom, the Belgian telecom incumbent, and cable operator Telenet, over the acquisition of the TV broadcasting rights of the Belgian football competition. This contribution is (...)

An Italian administrative court asks the Constitutional Court whether a legislative measure that conditionally cleared a merger outside ordinary merger control is in compliance with the Italian Constitution (Federconsumatori)
University of Palermo
All the undertakings are equal. It happens in Italy, however, that some undertakings are more equal than others and the State allows them to realise a concentration without subjecting them to ordinary merger control rules. The Italian Constitutional Court (Constitutional Court), in a (...)

The U.S. FTC files a complaint to stop a proposed merger between two leading producers of plasma-derivative protein therapies (CSL / Talecris)
Jones Day (Washington DC)
Just two weeks after the FTC filed a complaint seeking an injunction to stop the proposed $3.1 billion acquisition by Australia-based CSL Limited of Talecris Biotherapeutics Holding Corporation, the parties have withdrawn their plans for a merger. The announcement, made on June 8, 2009, came (...)

The Belgian Competition Council refers the case back to the Competition Council’s Prosecutor for further investigation to assess implementation of remedies imposed following a merger in the cinema and theatre market in Belgium (Kinepolis)
Monard Law
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Philippe & Partners (Brussels)
1. The parties UGC Belgium Plc. (“UGC”) is a cinema operator that owns three sites in Belgium. Kinepolis Group Plc. (“Kinepolis”) is the leading Belgian cinema operator with eleven cinema complexes all over the country. In 2008 it held a market share of 43.83 %. Kinepolis was created in 1997 (...)

The Irish High Court annuls the determination of the Competition Authority to block a merger in a landmark ruling (Kerry / Breeo)
London School of Economics
Notified acquisition Pursuant to sections 16 and 18 of the Competition Act 2002, which set out the duty to notify mergers or acquisitions which exceed stipulated thresholds to the Competition Authority (NCA), Kerry Group (Kerry) notified its intention to acquire Breeo Foods (Breeo) to the NCA (...)

The Irish High Court overturns an NCA merger decision, finding the determination vitiated by material error in two respects, with particular focus on the significance of countervailing buyer power (Rye Investments)
Arthur Cox (Dublin)
On 19th March, 2009, the Irish High Court annulled the decision of the Irish Competition Authority (“ICA”) to block Kerry Group’s proposed acquisition of one its major competitors, Breeo Foods. Kerry’s acquisition of Breeo was notified to the ICA in March 2008. The proposal affected a number of (...)

The Romanian Competition Authority fines a petrochemical company for failure to notify a merger (AGIP Romania)
Faculty of Law - University of Macau
On 19 December 2008 SC AGIP Romania SA (AGIP), member of the Italian petrochemical group ENI SpA, acquired a number of gas stations in Romania, previously owned by SC MOL Romania Petroleum Products SRL (MOL). On 19 February 2009 AGIP notified specified economic concentration to the Romanian (...)

The Turkish Council of State orders stay of execution of Competition Board’s remedies inherent to its conditional clearance decision in daily political newspapers market (Vatan Newspaper / Dogan Group)
Hewlett Packard (Istanbul)
Background On 10 March 2008, the Turkish Competition Board has conditionally cleared the acquisition of Vatan Newspaper (Vatan) by Doðan Gazetecilik A.Þ. (Doðan Group) - the biggest media holding both in terms of audience and advertisement revenues- , by accepting the “failing company defense”. (...)

The U.S. District Court of Columbia grants FTC request for preliminary injunction to block a 3-2 transaction in the market for electronic systems used to estimate the cost of collision repairs (CCC Holdings / Aurora Equity Partners)
Skadden, Arps, Slate, Meagher & Flom (Washington DC)
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Fordham Competition Law Institute - FCLI (New York)
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Skadden, Arps, Slate, Meagher & Flom (Washington DC)
On March 18, 2009, Judge Collyer of the United States District Court for the District of Columbia released the public version of a significant opinion supporting her order granting the FTC a preliminary injunction in connection with the proposed $1.4 billion merger of CCC Information Systems (...)

The EU Court of First Instance confirms the European Commission’s discretion analysis to suspend a merger under Article 11(3) of the EC merger regulation (Omya / Huber)
JG Associates (Brussels)
"Article 11(3) Decisions – the Commission’s Discretion Analysis of the judgment of the Court of First Instance in case T-145/06 Omya v Commission"* The examination of Omya AG’s (Omya) proposed acquisition of J. M. Huber’s precipitated calcium carbonate business (Huber PCC) was one of the most (...)

The EU Court of Justice Advocate General Ruiz Jarabo-Colomer criticises European CFI for damages award (Schneider)
Van Bael & Bellis (Brussels)
On 3 February 2009, Advocate General Ruiz Jarabo-Colomer issued his opinion to the European Court of Justice (ECJ) in the appeal proceedings against the Schneiderjudgment of the Court of First Instance (CFI). In this judgment of 11 July 2007, the CFI held that Schneider must be compensated for (...)

The Macedonian Administrative Court confirms a merger prohibition decision in the market for retail distribution of pharmaceutical products (Zegin / City Pharmacy)
Faculty of Law - University of Macau
On 1 June 2006 Zegin, leading distributor of the pharmaceuticals on the territory of Skopje municipality agreed with two other retail distributors of medicines - Alkaloid and Pharma Corp. to acquire joint control over City Pharmacy in Skopje , which owned a network of pharmacies in the (...)

The U.S. Department of Justice files an antitrust lawsuit to challenge a consummated merger in the manufacture and sale of specialized electronic components (Microsemi / Semicoa)
Jones Day (Houston)
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Jones Day (Washington DC)
In another reminder that U.S. antitrust enforcers can challenge mergers even after closing, and even for deals not subject to premerger notification under the HSR Act, on December 18, 2008, the Department of Justice Antitrust Division filed a civil antitrust lawsuit challenging the July 2008 (...)

The Austrian Supreme Court confirms the phase II clearance of a cooperation agreement between two operators forming a joint venture in the market for free weekly newspapers despite the veto of the Federal Competition Authority (Styria Medien / Moser Holding)
Reidlinger Schatzmann Rechtsanwälte (Vienna)
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Freshfields Bruckhaus Deringer (Vienna)
1. Facts On 17 March 2008 Styria Medien AG, Graz, Austria (SAG) and Moser Holding AG, Innsbruck, Austria (MOHO) notified the Federal Competition Authority (FCA) of their intention to create a 50/50 joint venture in the market for free weekly newspapers. The proposed media merger constitutes a (...)

The Austrian Supreme Court rules that the sale of shares to the remaining jointly controlling shareholders constitutes a concentration (RAG / Shell)
Reidlinger Schatzmann Rechtsanwälte (Vienna)
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Bpv Hügel (Vienna)
1. Facts and decision at first instance This case involves a change in the shareholder structure of RAG, Austria’s second largest oil and gas company. Before the concentration, the shares in RAG were held by two holding companies. One holding company, which held 75% in RAG’s shares, was jointly (...)

The Macedonian Competition Authority adopts guidance on assessment of non-horizontal concentrations (Guidelines on vertical and conglomerate concentrations)
Faculty of Law - University of Macau
On 16 December 2008 the Macedonian Competition Authority (Комисијата за заштита на конкуренцијата) (KZK) adopted the Guidelines on assessment of vertical and conglomerate concentrations (Насоки за оценка на вертикални и конгломератни концентрации) (Non-Horizontal Guidelines), which were intended to complement the existing (...)

The UK Competition Appeal Tribunal rejects appeal against clearance of a merger in the bank sector (Lloyds TSB / HBOS)
Van Bael & Bellis (Brussels)
On 10 December 2008, the UK Competition Appeal Tribunal (CAT) ruled on an appeal against the decision of the Secretary of State for Business, Enterprise and Regulatory Reform, Lord Mandelson, to clear the proposed acquisition of UK banking group HBOS by competitor Lloyds TSB. In September 2008, (...)

The Higher Regional Court Düsseldorf upholds prohibition decision of the FCO in the hearing aid sector (Phonak / GN ReSound)
Van Bael & Bellis (Brussels)
In a recently published decision of 26 November 2008, the Higher Regional Court of Düsseldorf affirmed the decision of the Federal Cartel Office (“FCO”) prohibiting the Swiss hearing aid manufacturer Phonak Holding AG (“Phonak”) from acquiring its Danish competitor GN Store Nord AS(“GN ReSound”). (...)

The Chinese Antitrust Authority provides guidance for merger review process under the new anti-monopoly law
Jones Day (Beijing)
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Jones Day (Beijing)
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Winston & Strawn (New York)
The China Ministry of Commerce (« MOFCOM »), which serves as the antitrust authority in charge of merger control under the new Anti-Monopoly Law (« AML »)[[ See Article 10 of the AML provides that the Anti-Monopoly Enforcement Authority ("AMEA"), designated by the State Council, is responsible for (...)

The Higher Regional Court of Düsseldorf widens the scope of application of merger control law according to Sec. 37(1) N° 4 ARC while prohibiting a merger in the copper continuous casting industry sector (A-TEC / Norddeutsche Affinerie)
Gleiss Lutz (Munich)
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Milbank, Tweed, Hadley & McCloy (Munich)
On 12 November 2008, the German Higher Regional Court of Düsseldorf approved a decision of the German Federal Cartel Office (FCO) prohibiting the proposed acquisition of a 13.75% share in a company by a competitor. The case concerned the issue of whether, according to German law, a share (...)

The German Federal Court confirms that a change of control must occur on a lasting basis in order to be qualified as a “concentration” but leaves open the question which actions can constitute “gun-jumping” infringements (G+J / RBA)
Freshfields Bruckhaus Deringer (Berlin)
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Freshfields Bruckhaus Deringer (Berlin)
With its judgment of 11 November 2008, the German Federal Court of Justice (Bundesgerichtshof) (Federal Court) has opened a new chapter in the never ending judicial saga relating to the German edition of the scientific magazine National Geographic, which has already found itself at the centre (...)

The UK Competition Appeal Tribunal delivers its judgment dismissing challenges on material influence, SLC and remedies brought by a broadcasting company (British Sky Broadcasting Group)
Linklaters (London)
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Linklaters (London)
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Linklaters (London)
In a judgment handed down on 29 September, the Competition Appeal Tribunal (CAT), dismissed an appeal brought by British Sky Broadcasting Group plc (Sky) against a decision of the Competition Commission (CC). The CAT upheld part of an appeal against the same decision brought by Virgin Media (...)

The UK Competition Appeal Tribunal rules on appeal against a merger control decision (BSkyB / ITV case)
Van Bael & Bellis (Brussels)
On 29 September 2008, the UK Competition Appeal Tribunal (“CAT”) issued its ruling on two rival appeals brought by BSkyB and Virgin Media against the decision of the Secretary of State for Business, Enterprise and Regulatory Reform of earlier this year ordering BSkyB to reduce its interest in (...)

The EU Commission conditionally approves a merger in the baking industry after analysis of possible coordinated effects (ABF / GBI)
OECD - Competition Division (Paris)
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DG COMP (Brussels)
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Eurocompetition (Brussels)
"ABF/GBI Business: coordinated effects baked again"* I. Introduction Just a few months after the Court of Justice gave a key ruling in Sony/BMG v Impala, the Commission adopted its decision in the ABF/GBI Businesscase. This was the first case since Airtoursin which the Commission intervened (...)

The Stockholm District Court dismisses action brought by the Swedish Competition Authority to block a merger (Copiax / Assa Abloy)
Roschier (Stockholm)
On 19 September 2008, the Stockholm District Court (“District Court”) dismissed an action brought by the Swedish Competition Authority (“SCA”) to block the acquisition of Copiax AB (“Copiax”) by Assa Abloy AB (“Assa Abloy”) (together the “Parties”) on the grounds that the action was brought too late. (...)

A U.S. Court of Appeals reverses ruling against preliminary injunction in the organic food sector lowering bar for the FTC to challenge a merger (Whole Foods / Wild Oats)
Skadden, Arps, Slate, Meagher & Flom (Washington DC)
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Skadden, Arps, Slate, Meagher & Flom (New York)
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Skadden, Arps, Slate, Meagher & Flom (New York)
On July 29, 2008, the U.S. Court of Appeals for the D.C. Circuit reversed the denial of a preliminary injunction sought by the FTC against a merger of Whole Foods Market, Inc. and Wild Oats Markets, Inc., in a ruling that significantly lowers the bar for the FTC to obtain preliminary (...)

A U.S. Court of Appeals overturns a district court’s denial of FTC’s request for a preliminary injunction against an acquisition in the organic food sector (Whole Foods / Wild Oats)
WilmerHale (Washington)
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WilmerHale (Washington)
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Kirkland & Ellis (Washington)
The Federal Trade Commission (FTC) won a major victory last week when a splintered D.C. Circuit overturned the district court’s denial of its request for a preliminary injunction against the acquisition of Wild Oats by Whole Foods. The decision provides the FTC a much-needed win in a prominent (...)

The EU Court of Justice annuls the Court of First Instance’s judgment relating to a joint venture in the music publishing sector (Sony / BMG)
DG COMP (Brussels)
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DG FISMA (Brussels)
"The Joint Venture SonyBMG: final ruling by the European Court of Justice"* By judgment of 10 July 2008 in Case C-413/06 P, Bertelsmann and Sony Corporation of America v Impala (the “Judgment”), the Court of Justice (the “Court”) annulled the ruling by the Court of First Instance (the “CFI”). The (...)

A German Court annuls a Competition Authority’s decision prohibiting a merger in the healthcare sector (University Hospital of Greifswald / Regional Hospital of Wolgast)
Van Bael & Bellis (Brussels)
On 7 May 2008, the Higher Regional Court of Düsseldorf quashed a decision of the German Federal Cartel Office prohibiting the merger between the university hospital of Greifswald and the regional hospital of Wolgast. The Düsseldorf Court applied the recent case law of the German Federal Court of (...)

The EU Court of First Instance examines an appeal against a Commission’s merger approval between slaughterhouses (Sovion / Hendrix Meat Group)
Van Bael & Bellis (Brussels)
Two Dutch livestock organisations are seeking to annul the European Commission’s 21 December 2004 decision approving the acquisition by Sovionof Hendrix Meat Group. The appellants are challenging the Commission’s conclusion that the transaction between slaughterhouses would not significantly (...)

A German Minister overrules on public interest grounds the FCO’s prohibition of a merger in the hospital sector (University hospital Greifswald / Regional hospital Wolgast)
Van Bael & Bellis (Brussels)
On 17 April 2008, the German Federal Minister of Economics and Technology approved the merger between the university hospital Greifswald and the regional hospital Wolgast, thereby overruling the German Federal Cartel Office’s (FCO) prohibition of the transaction in December 2006. Under German (...)

The Brussels Court of Appeal annuls Belgian Competition Council’s decision lifting merger remedies imposed on a cinema group (Kinepolis)
Van Bael & Bellis (Brussels)
In a judgment of 18 March 2008, the Brussels Court of Appeal annulled the Belgian Competition Council’s decision of 16 April 2007 lifting the conditions it had imposed in 1997 on the merger between Belgian cinema groups Bert and Claeys, which created leading Belgian cinema group Kinepolis. In (...)

The Finnish Market Court overrules the NCA’s conditional merger clearance in the electricity sector after completion of the transaction subject to conditions (Fortum Power-Heat / E.ON Finland Oy)
Frontia
In June 2006, the FCA cleared Fortum Power and Heat Oy’s (“Fortum”) acquisition of E.ON Finland Oy (“E.ON”) subject to certain structural and behavioral conditions. The requirement of conditions by the FCA was materially based on the view of the FCA that the market for the production and wholesale (...)

The EU Court of Justice rules on the application of Article 21 of the Merger Regulation (E.ON / Endesa)
DG COMP (Brussels)
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DG COMP (Brussels)
"Application of Article 21 of the Merger Regulation in the E.ON/Endesa case"* On 21 February 2006, the German company E.ON publicly announced its intention to launch a bid for the entire share capital of the Spanish energy company Endesa. This bid was competing with a hostile bid made by Gas (...)

A German Court of appeals reinforces the application of the de minimis exemption for merger control by constraining the application of the “bundle theory" (Asphaltmischwerke Langenthal)
Fried Frank Harris Shriver & Jacobson (London)
Dr Tobias Caspary is an Associate at Fried, Frank, Harris, Shriver & Jacobson. The author is greatly indebted to Dr Craig Arnott, Head of Competition/Antitrust at Fried, Frank, Harris, Shriver & Jacobson, for his review and invaluable comments. This article will also appear in Issue (...)

The EU Commission initiates infringement proceedings against Spain for not lifting conditions imposed on a transaction approved by the Commission (Enel / Acciona / Endesa)
Van Bael & Bellis (Brussels)
On 31 January 2008, the European Commission announced that it has initiated infringement proceedings under Article 226 EC against Spain for failing to lift restrictions imposed by the Spanish National Energy Commission (CNE) on the Enel/Acciona/Endesa transaction. The acquisition by Enel and (...)

The UK Secretary of State for Business, Enterprise & Regulatory Reform acts in accordance with the recommendations of the UK Competition Commission, thus requiring the partial divestment of remedies in a TV broadcasting investment case (BSkyB / ITV)
NERA (London)
The operation British Sky Broadcasting Group plc (BSkyB) is a holding company for subsidiaries that operate principally in activities relating to television broadcasting and retailing in the UK and Ireland (for example, direct-to-home pay subscription satellite television). BSkyB is also (...)

The EU Court of Justice upholds the European Commission decision in the Dutch building materials case (CVK)
DG COMP (Brussels)
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DG COMP (Brussels)
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E.CA Economics (Brussels)
"ECJ upholds Commission decision in Dutch building materials case CVK"* On 18 December 2007, the European Court of Justice (ECJ) dismissed an appeal lodged by the Dutch firm Cementbouw against the Court of First Instance’s (CFI) judgment of 23 February 2006 in Case T-282/02 Cementbouw v (...)

The EU Commission gives Spain one month to withdraw conditions imposed on a merger unconditionally approved by the Commission (Enel / Acciona / Endesa)
Van Bael & Bellis (Brussels)
On 15 May 2008, the European Commission announced that it has formally asked Spain to withdraw, within one month, the conditions that were imposed by the Spanish National Energy Commission (CNE) and the Spanish Minister of Industry and Tourism on the Enel/Acciona/Endesa transaction, in spite of (...)

The EU Commission declares part of conditions imposed by Spain energy regulator on a proposed acquisition in the energy sector incompatible with EU law and requires their withdrawal (Enel / Acciona / Endesa)
JG Associates (Brussels)
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DG COMP (Brussels)
"Mergers: Main developments between 1 September and 31 December 2007"* The acquisition of joint control of Endesa by Enel and Acciona was notified to the Commission on 31 May and cleared on 5 July. Under the relevant national law, Enel and Acciona requested the Spanish energy regulator (...)

The EU Commission clears the creation of a joint venture combining recorded music businesses of two leading companies (Sony / BMG)
JG Associates (Brussels)
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DG COMP (Brussels)
"Mergers: Main developments between 1 September and 31 December 2007"* In October the Commission granted regulatory approval to the creation of Sony BMG, a joint venture combining the recorded music businesses of Sony and Bertelsmann, after concluding that it did not have sufficiently strong (...)

The German Federal Court of Justice finds that merger prohibition decisions can still be appealed even after the parties abandoned the transaction (Springer / ProSiebenSat.1 Media)
Van Bael & Bellis (Brussels)
In a recently published judgment of 25 September 2007, the German Federal Court of Justice (BGH) annulled a decision of the Higher Regional Court of Düsseldorf which rejected an appeal against a prohibition decision of the German Federal Cartel Office (FCO) because the parties had already (...)

The German Federal Court of Justice acknowledges the right to a declaratory judgement on blocked mergers (Springer / ProSiebenSat.1)
Blomstein (Berlin)
Background In January 2006, the German Federal Cartel Office (FCO) prohibited the merger of Axel Springer AG (Springer) with ProSiebenSat.1 Media AG (ProSiebenSat.1). The merger would have combined the biggest German newspaper publisher and the biggest private TV group in Germany besides (...)

The Federal Supreme Court of Germany and the Düsseldorf Court of Appeals overrule the Federal Cartel Office’s prohibition and dissolution of a merger in the market for cartridges in the construction and industrial sector and fittings for medical and dental treatments (Sulzer / Kelmix / Werfo)
NERA (Berlin)
Transaction and Parties Sulzer Markets & Technology AG intended to acquire 75,1% of Kelmix Holding AG , 76% of Werfo AG, 76% of Mold AG and 100% of the founder’s rights of Mold Anstalt. Sulzer and Kelmix manufacture, among other things, two-component cartridges used for the filling of (...)

The Brussels Court of appeal invalidates a decision by the Belgian Competition Council to lift the restrictions imposed on a cinema chain merger, and inter alia prohibition of exclusivity/priority clause (Kinepolis)
DG COMP (Brussels)
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DG COMP (Brussels)
Introduction On the 23rd of August 2007, the Brussels Court of Appeal accepted the request of UGC, Utopolis and FCB to revoke a decision by the Belgian Competition Council concerning the cinema chain Kinepolis. This latter decision lifted the restrictions imposed on Kinepolis in 1997 when the (...)

The Brussels Court of Appeal grants a stay of execution of a Competition Council decision to withdraw merger remedies (Kinepolis)
KBC Bank & Verzekering (Brussels)
Background information In 1997, the Kinepolis Group was set up in a merger between Groep Bert and Groep Claeys to be active both as cinema operator and to a lesser extent as film distributor. Through the merger the Kinepolis Group would become the dominant player in cinema in Belgium facing (...)

The UK Competition Appeal Tribunal reviews merger remedies imposed by the OFT in a merger on the funeral services market (CGL / Fairways)
Brown Brothers Harriman (BBH) (Luxembourg)
A merger in funeral services was examined by the OFT On 24 March 2006, Co-Operative Group (CWS) Limited (hereafter “CGL”) purchased and acquired the control of the undertaking Fairways Group UK Limited (“Fairways”). CGL provides funeral services through its subsidiary Funeralcare business. More (...)

The EU Court of First Instance confirms the Commission’s decision to clear acquisition in the market for resins used for ink production (Apollo / Akzo Nobel IAR)
DG COMP (Brussels)
"The Court of First Instance confirms clearance of the Apollo / Akzo Nobel IAR merger"* On 29 May 2006 the European Commission approved the acquisition by Hexion Specialty Chemicals (“Hexion”, USA), owned by the investment fund Apollo, of Akzo Nobel’s Inks and Adhesive Resins business (“IAR”, the (...)

The French Administrative Supreme Court upholds a merger in the audiovisual sector conditional to remedies (Métropole Télévision)
Brown Brothers Harriman (BBH) (Luxembourg)
The operation By a Court decision dated 27 June 2007, the French Administrative Supreme Court upheld a decision taken by the French Minister of Economy, Finance, and Employment on 27 October 2004 granting TV channels TF1 and AB with an authorisation to acquire Télé Monte-Carlo in a Phase I (...)

A Dutch Court upholds the decision of the Dutch Competition Authority and confirms the remedies proposed by the telecommunciation incumbent in the transmission of wireless radio signals sector in order to remedy vertical effects (KPN Broadcast / Vodafone / UPC / Orange / NMa)
Philips (Amsterdam)
On 11 June 2007 the Dutch Court upheld the decision of the Dutch Competition Authority (NMa) in relation to KPN’s acquisition of the network transmission service company Nozema. The Court concluded that the NMa’s decision not to initiate a Phase 2 investigation was well founded. In December 2005 (...)

A German regional Court upholds the NCA’s decision blocking an energy merger (E.ON / Stadtwerke Eschwege)
Freshfields Bruckhaus Deringer (Berlin)
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Freshfields Bruckhaus Deringer (Berlin)
A recent blocking decision against a merger between RWE and SaarFerngas (See Dr. Frank Röhling, Bertrand Guerin, The German Federal Cartel Office prohibits further merger of a dominant player in the electricity and gas sector (RWE/SaarFerngas), e-Competitions, July 2007-I, a Court decision (...)

The French Merger Guidelines 2007
French Competition Authority (Paris)
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Ministère des Outre-mer
Central Office for Competition, Consumption and Fraud Repression, May 2nd, 2007, Guidelines on concentrations control, Procedure and Analysis Direction générale de la concurrence, de la consommation et de la répression des fraudes (DGCCRF), 2 mai 2007, Lignes directrices relatives au contrôle des (...)

The Dutch District Court of Rotterdam confirms that, unless there is a reason for deviation, the NCA may rely upon a previous EC merger decision for the purposes of market definition (Nederlandse Vakbond Varkenshouders)
The AES Corporation (Amsterdam)
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De Brauw Blackstone Westbroeck (Amsterdam)
District Court of Rotterdam (Rechtbank Rotterdam), 19 April 2007, Nederlandse Vakbond Varkenshouders & Nederlandse Bond van Handelaren in Vee / NMa, Case MEDED 06/1220 VRLK, LJN BA3538 In December 2005 Dumeco notified its intension to the Dutch Competition Authority (hereafter referred to (...)

The Belgian Competition Council abolishes remedies imposed in a previous merger between the two major cinema operators in Belgium (Kinepolis)
Freshfields Bruckhaus Deringer (Hong Kong)
The operation The Belgian Competition Council abolishes the conditions imposed by its decision of 17 November 1997 (97-C/C-25) on the activities Kinepolis Groep and Kinepolis Filmdistributie, created by the merger of Groep Bert and Groep Claeys The markets The relevant markets have been (...)

The Austrian Supreme Court rejects appeal against finding of a merger in the Austrian savings bank sector regarding the creation of a “liability pool” joint venture (Haftungsverbund)
European Court of Justice (Luxembourg)
1. Introduction In a second judgment of 21 March 2007, parallel to the one given on the same day (Supreme Court (Oberster Gerichtshof), 21 March 2007, Erste Bank, Decision BWB/K-50, Case 16 OK 12/06 ; See Stefan Polster, The Austrian Supreme Court holds that certain aspects of a co-operation (...)

The Swiss Federal Court confirms the quashing of two merger clearance Competition Commission’s decisions by applying a strict substantive test for merger control (Swissgrid / Berner Zeitung)
Këllezi Legal (Geneva)
The Swiss Federal Court has dismissed two Competition Commission’s appeals relating to merger control (decision of February 13, 2007 (Swissgrid), and of February 22, 2007 (Berner Zeitung). The Swiss Federal Court rulings build a strict standard for merger control in Switzerland by stating the (...)

The French Supreme Administrative Court annuls a merger authorisation in the press sector (Société France Antilles)
Fréget (Paris)
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International Chamber of Commerce (ICC)
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Lagardère (Paris)
French Administrative Supreme Court (Conseil d’État), 31 January 2007, Société France Antilles, n° 294896 Introduction On 31 January 2007 the French Supreme Administrative Court (Conseil d’État) handed down a judgement annulling a merger authorisation in the press sector. This decision is worthy of (...)

The UK Competition Appeal Tribunal allows extension of time for merger filing admitting the existence of ’exceptional circumstances’ (BSkyB)
Kasliwals & Associates
Introduction Grant of extension of time for filing a review under section 120 of the Enterprise Act, 2002 (‘The Act’) in the BSkyB/Competition commission case sets an impeccable precedent incorporating the first principle established under the domain of ‘exceptional circumstances’, ‘the (...)

A German Court limits the Bundeskartellamt’s jurisdiction in merger cases on the basis of the de minimis doctrine (du Pont de Nemours / Pedex)
McDermott Will & Emery (Düsseldorf)
Background German merger control law provides that transactions where the participating undertakings meet certain thresholds must be notified to the Federal Cartel Office (“FCO”). However, the law also provides for a de-minimis provision according to which a notification is not required if the (...)

The Brussels Court of Appeal gives its opinion on the relationship between merger control and the Belgian equivalents of Art. 101 and 102 TFEU in what may be its last preliminary ruling (Rocco)
Altius (Brussels)
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Altius (Brussels)
On 15 December 2006, the Brussels Court of Appeal ruled on the relationship between the merger control rules and the general rules on restrictive practices. The court’s judgment followed a request for a preliminary ruling to the Court from the Commercial Court of Namur. Background The (...)

The Dutch Trade and Industry Appeals Tribunal upholds the Rotterdam court’s cancellation of the Dutch NCA conditional clearance of a merger in the energy sector (Nuon / Reliant)
Netherlands Authority for Consumers & Markets (The Hague)
The acquisition by Nuon of Reliant was originally cleared by the NMa in December 2003 after a phase II investigation. The activities of Nuon and Reliant mainly overlap in regard of the production and wholesale of electricity. The NMa defined the relevant market as the market for the production (...)

The Dutch Trade and Industry Appeals Tribunal confirms the annulation of the Dutch Competition Authority’s merger decision having imposed electricity auction as remedy on the wholesale electricity market (Nuon / Reliant)
Covington & Burling (Brussels)
Introduction In its judgment of 28 November 2006 the Trade and Industry Appeals Tribunal (“Tribunal”) dismissed the appeal lodged by the Dutch Competition Authority (“NMa”) in the Nuon/Reliant merger case. The case started in 2003 following the imposition of structural remedies with a phase II (...)

The Finnish Supreme Administrative Court rules that conditions on merger clearance must be implemented notwithstanding an appeal (Fortum Power-Heat / E.ON Finland Oy)
Roschier (Helsinki)
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Frontia
The Finnish Market Court is awaited to hand down its decision regarding the appeal lodged by Fortum Power and Heat Oy (hereinafter “Fortum”), a subsidiary of Fortum Oyj, against the conditions imposed by the Finnish Competition Authority (hereinafter the “FCA”) on the clearance of the acquisition (...)

The UK Competition Appeal Tribunal considers the reasonableness of a decision appointing an hold separate manager to perform functions in a merger according to section 81 of the Enterprise Act 2002
University College London
Facts of the case The first applicant Stericycle International LLC, a company incorporated in the US, operates in the UK through its wholly-owned subsidiary, the second applicant, Stericycle International Limited, a holding company for three further companies (collectively "Stericycle UK"). (...)

The German Federal High Court holds that the de minimis condition of merger control does not apply (i) if there are related markets which are not de minimis, or (ii) if the sum of geographically related markets is not de minimis (Deutsche Bahn / KVS Saarlouis)
CRA International (London)
Summary The Bundesgerichtshof (Federal High Court) decided in the context of an appeal against a blocked merger between the local transport arm of Deutsche Bahn and regional transport company KVS, which operates in the Saar Region. The parties appealed against the Bundeskartellamt (Federal (...)

The Swiss Commission of Appeals for Competition Matters upholds an appeal to a decision of the NCA prohibiting the acquisition of common control of a free daily newspaper but made it subject to a remedy (Berner Zeitung / Tamedia)
Imperial College Business School (London)
The operation Espace Media Group SA (EMG) through Berner Zeitung AG and Tamedia AG were planning to acquire through a joint undertaking stakes in the free daily newspaper ‘20 Minuten’. EMG is active in newspaper publishing, the electronic media sector, local radios and internet platforms. (...)

The Swiss Competition Appeals Commission annuls the Competition Authority’s decision having cleared a joint venture between 7 electricity companies conditionaly to free and non-discriminatory access to the network and prohibition of joint selling or producing (Swissgrid)
NERA (Berlin)
The operation On 7 March 2005, the Swiss Competition Commission (WEKO) cleared a joint venture between seven electricity companies for the transmission of electricity (Swissgrid AG). The seven companies are Aare-Tessin AG, BKW FMB Energie AG, Centralschweizerische Kraftwerke, (...)

The U.S. Supreme Court immunizes from antitrust liability price-fixing agreements of a legitimate joint venture (Texaco / Dagher)
University of Central Florida - Department of Legal Studies
Something Radical is Afoot: Texaco, Inc. v. Dagher and the Revolutionary Treatment of Price Fixing in the Joint Venture Context* This article analyzes a 2006 decision by the U.S. Supreme Court in Texaco, Inc. v. Dagher, which immunized joint venturers from antitrust liability for fixing the (...)

The French Supreme Administrative Court validates the Competition Council’s analysis and upholds the clearance decision of the French Minister of Economy regarding a share acquisition in the enterprise resource planning software solutions sector (CEGID SA / CCMX Holding)
PagesJaunes
On July 23, 2004 the acquisition of 100% of the shares of CCMX Holding (“CCMX”) by Cegid SA (“Cegid”) thereby conferring Cegid sole control of CCMX, was notified to the French Minister of Economy (the “Minister”). Both parties were active in the design, development and marketing of ERP software (...)

The UK Competition Appeal Tribunal considers the reasonableness of a Competition Commission’s decision regarding the remedy of divestment (Somerfield)
University College London
Facts of the case Somerfield plc ("Somerfield" or "the applicant"), applied to the Competition Appeal Tribunal pursuant to section 120 of the Enterprise Act 2002 ("the Act") for a judicial review of the Competition Commission’s decision ("the CC"), contained in a document entitled "A Report on (...)

The Spanish Competition Authority clears with divestments a merger in the radio sector but the Council of Ministries reduced the extent of the remedies (Unión Radio / Antena 3 Radio)
PwC (Madrid)
The operation The proposed merger was the acquisition of Antena 3 Radio by Unión Radio. Antena 3 Radio was a company operating 93 radio stations in Spain. The main shareholders of Antena 3 Radio were Inversiones Godó (64.6%) and Paltrieva (24.8%). Unión Radio was a company that managed radio (...)

The Belgian Competition Council confirms its jurisdiction and the jurisdiction of the Court of Appeal in merger cases (L’Echo)
Leuven University
On 20 December 2005 the Belgian Competition Council approved (under conditions) the acquisition of the Walloon financial newspaper “L’Echo” by the Flemish media group De Persgroep and by the Walloon press group Rossel. In September 2005, the Competition Council also gave green light for the (...)

The EU Court of First Instance denies application for annulment of Commission decision on merger prohibition, though it finds that the assessment of the conglomerate effects resulting from the concentration was erroneous (Honeywell International / GE)
Sheppard Mullin (Los Angeles)
General Electric/Honeywell merger prohibition upheld by European Court of First Instance – “Conglomerate effects” analysis represents “manifest errors of assessment”* On December 14, 2005, the European Court of First Instance (“CFI”) denied the application of General Electric Company (“GE”) and (...)

The French Competition Council reviews, for the first time on referral from the French Supreme Administrative Court, the impact on competition of a share acquisition in the enterprise resource planning software solutions sector (CEGID / CCMX Holding)
PagesJaunes
On July 23, 2004 the acquisition of 100% of the shares of CCMX Holding (“CCMX”) by Cegid SA (“Cegid”) thereby conferring Cegid sole control of CCMX, was notified to the French Minister of Economy (the “Minister”). Both parties were active in the design, development and marketing of ERP software (...)

The Dutch Competition Authority clears a merger in the sector of insurance subject to a remedy to refrain from regional differentiation, but the Rotterdam Court overturns the decision for lack of sectoral competence (CZ / OZ)
Netherlands Authority for Consumers & Markets (The Hague)
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Eversheds Sutherland (Amsterdam)
The operation CZ and OZ provide for privately funded and supplementary insurance, as well as insurance, which is paid for by the national health insurance fund (para. 8-11). The market(s) The NMa assessed the effects of the merger in relation to the markets of (i) private insurance and (...)

The Administrative Tribunal of Lazio confirms the Italian Competition Authority’s decision to clear a merger in the sector of electricity with structural and behavioural remedies (Trasmissione Elettricità Rete Nazionale / Gestore della Rete di Trasmissione Nazionale)
Clifford Chance
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Chiomenti (Rome)
The operation The Italian Competition Authority, at its meeting of 4 August 2005, approved with conditions the purchase by Cassa Depositi e Prestiti S.p.A. of 29.99% of T.E.R.N.A.’s shares and a division of Gestore della Rete di Trasmissione Nazionale (the company in charge of the national (...)

The French Supreme Administrative Court refers to the French Competition Council, for the first time ever, a clearance decision of the French Minister of Economy regarding a share acquisition in the enterprise resource planning software solutions sector (CEGID / CCMX Holding)
PagesJaunes
On July 23, 2004 the acquisition of 100% of the shares of CCMX Holding (“CCMX”) by Cegid SA (“Cegid”) thereby conferring Cegid sole control of CCMX, was notified to the French Minister of Economy (the “Minister”). Both parties were active in the design, development and marketing of Enterprise (...)

An Estonian Court of appeal confirms the right of third parties to challenge merger decisions, but upholds the Competition Authority’s merger clearance concerning the acquisition of a company controlling a chain of pharmacies by an Estonian dominant wholesaler of pharmaceuticals (Magnum Medical / Parimex Invest)
Cobalt Legal (Estonia)
On 14 June 2005, the Tallinn Circuit Court (a court of appeal) issued a judgment upholding the Estonian Competition Authority’s (ECA) merger clearance concerning the acquisition of OÜ Parimex Invest, a company controlling a chain of pharmacies, by AS Magnum Medical, an Estonian dominant (...)

A Dutch Court annuls a Dutch Competition Authority’s decision that conditionally cleared a merger between electricity companies for not having sufficiently demonstrated that the merger would lead to the creation or strengthening of a dominant position (Nuon / Reliant)
RBB Economics (Brussels)
On 31 May 2005, the Court of Rotterdam in the Netherlands annulled a decision by the Nederlandse Mededingingsautoriteit (NMa), the Dutch competition authority, concerning the proposed merger between electricity companies Nuon and Reliant . After a detailed inquiry, the NMa had cleared the (...)

The Hungarian Competition Office clears a merger in the daily newspapers market subject to remedies including tying prohibition and price control, the transaction having been previously prohibited by the NCA and then subject to a new assesment following Court’s judgement (Tabora / Népszabadság)
Lakatos, Köves & Partners (Budapest)
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Lakatos, Köves & Partners (Budapest)
In 2003, a member of the Ringier group, B.V. Tabora (Tabora), which held 49.97 per cent of the shares in Népszabadság, one of the largest daily newspapers in Hungary, acquired through share swap another 17.68 per cent stake in Népszabadság, thus holding a total of 67.65 per cent. Tabora requested (...)

The EU Court of Justice rules on the standard of judicial review in merger cases and clarifies the burden of proof upon the Commission in conglomerate mergers cases (Tetra Laval / Sidel)
WilmerHale (Brussels)
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WilmerHale (Brussels)
On 15 February 2005, the European Court of Justice (ECJ) dismissed the European Commission’s appeal in the Tetra Laval/Sidel merger case. The ECJ’s judgment establishes two significant principles that apply beyond the facts of this particular case: • The judgment confirms that the Court of First (...)

The UK Office of Fair Trading clears a merger in the IT software sector subject to the divestment of a stand-alone business operating in the healthcare sector (iSOFT / Torex)
Added Value Capital Partners (AVCP) (Royston)
The operation iSOFT provides software and systems to healthcare provider organisations including the NHS. Torex provides healthcare technology software and systems for healthcare providers to GPs, laboratories, hospitals and community care. Torex also provides the hardware, installation and (...)

The EU Commission conditionally clears a merger in the publishing sector (Lagardère / Natexis / VUP)
DG COMP (Brussels)
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Conseil Régional de Midi-Pyrénées
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DG COMP (Brussels)
"Lagardère/Natexis/VUP: big deal in a small world"* The COMP/M.2978 Lagardère/Natexis/VUP case concerned the proposed acquisition of Editis (formerly called Vivendi Universal Publishing or VUP) by the Lagardère conglomerate. Before the transaction, Editis was the leader in the publishing, (...)

The Dutch Competition Authority clears a merger in the electricity sector subject to third parties’ access to infrastructure (Nuon / Reliant)
Netherlands Authority for Consumers & Markets (The Hague)
,
Eversheds Sutherland (Amsterdam)
The operation Nuon is an electricity producer and distributor. Reliant is one of the larger electricity producers in the Netherlands. Nuon proposed acquiring the whole of issued capital of Reliant (para. 3). The market(s) The activities of Nuon and Reliant with regard to the production and (...)

The UK Competition Appeal Tribunal rules on the obligation for the OFT to refer a merger case to the Competition Commission whenever there is doubt about whether it would result in a substantial lessening of competition (IBA Health)
Hogan Lovells (London)
On 3 December 2003, the Competition Appeal Tribunal in the UK upheld an application by IBA Health Ltd for judicial review against the Office of Fair Trading’s decision not to refer the anticipated merger between iSoft Plc and Torex Plc to the Competition Commission for detailed investigation. (...)

The UK Competition Appeal Tribunal rules on the obligation for the OFT to refer a merger case to the Competition Commission whenever there is doubt about whether it would result in a substantial lessening of competition (IBA Health)
Hogan Lovells (London)
On 3 December 2003, the Competition Appeal Tribunal in the UK upheld an application by IBA Health Ltd for judicial review against the Office of Fair Trading’s decision not to refer the anticipated merger between iSoft Plc and Torex Plc to the Competition Commission for detailed investigation. (...)

The EU Commission grants an unconditional approval of a merger in the electrical household appliances in relation to Spain, Finland, Ireland, Italy and the UK (SEB / Moulinex)
JG Associates (Brussels)
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DG COMP (Brussels)
"Merger Control: Main developments between 1st September 2003 and 31st December 2003"* On 11 November 2003 the Commission granted an unconditional approval of the SEB/Moulinex merger in relation to Spain, Finland, Ireland, Italy and the United Kingdom. In January 2002 the Commission had (...)

The EU General Court upholds the Commission’s rejection of a proposed purchaser of divested petrol stations in a merger between two leading oil companies (TotalFina / Elf)
DG COMP (Brussels)
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JG Associates (Brussels)
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DG COMP (Brussels)
"Merger control: main developments between 1st May and 31st August 2003"* This judgement finds that the Commission did not go beyond the limits of its discretionary power in assessing whether the applicants could be accepted as buyers of certain assets in the course of divestitures on which a (...)

The Czech Competition Authority rejects an appeal concerning structural merger remedies in the energy sector, but deprives itself of the right to approve the buyer of divested assets if the future transfer is not itself subject to assessment under statute (ÈEZ / STE / VÈE / SÈE / ZÈE / SME / PRE / JME)
Clifford Chance (Prague)
The operation The merger concerned constituted one of the phases in a wider framework of the government’s strategy to privatize state controlled stakes in the energy sector. The concerned transaction involved the transfer of shares directly owned by the state in eeight regional energy (...)

The EU Commission clears, subject to remedies and obligations, the acquisition by a Swiss-based packaging group of the French packaging company after the European Court of First Instance annulled its first decision to prohibit the merger (Tetra Laval / Sidel II)
DG Economic and Financial Affairs (ECFIN) (Brussels)
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DG COMP (Brussels)
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DG GROW (Brussels)
"Merger Control: Main developments between 1st January 2003 and 30th April 2003"* On 13 January 2003, the Commission decided not to oppose the acquisition by Tetra Laval B.V., which belongs to the Swiss-based Tetra Laval Group, the owner of the Tetra Pak packaging businesses, of the French (...)

The EU Commission decides upon a comprehensive reform of the EU merger control system, including the adoption of proposals for legislative change and for substantive guidance on merger analysis
Hong Kong Competition Commission
"Reform of the EU Merger Control System — a comprehensive package of proposals"* On 11 December 2002, the Commission decide upon a comprehensive reform of the EU merger control system, including the adoption of proposals for legislative change and for substantive guidance on merger analysis. (...)

The EU Court of First Instance annuls the Commission decision in a merger case which attempted to retroactively modify the original assessment on the ancillary restrictions (Lagardere / Canal Plus)
DG Economic and Financial Affairs (ECFIN) (Brussels)
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DG COMP (Brussels)
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DG GROW (Brussels)
"Merger Control: Main developments between 1st September 2002 and 31st December 2002"* The main interest of this judgment lies in its impact on the interpretation of the Merger Regulation with regard to ancillary restraints. The Court held that contractual clauses which constitute restrictions (...)

The EU General Court reverses the Commission’s refusal to review ancillary restraints in merger cases (Lagardere / Canal+)
WilmerHale (Brussels)
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Harte-Bavendamm Rechtsanwälte
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Latham & Watkins (Brussels)
Last month, the European Court of First Instance (“CFI”) reversed a decision by the European Commission in a merger case, Lagardère/Canal+, that had refused to assess the legality of certain ancillary restraints (such as noncompete clauses) as part of its decision on the merger. The Commission had (...)

The EU Court of First Instance overturns the European Commission’s decision to block a merger in the packaging equipment sector addressing the issues of conglomerate effects and leveraging (Tetra Laval / Sidel)
White & Case (Brussels)
,
White & Case (Brussels)
For the third time this year, and the second time this week, the European Court of First Instance ("CFI") has overturned a decision of the EC Commission to block a merger. Once again, the CFI criticized the Commission’s factual findings and its analysis. Within hours of the judgment, (...)

The EU Court of First Instance annuls the Commission’s decision declaring as incompatible with the common market a merger between Swiss-based packaging company mainly active in carton packaging, with a French packaging company mainly active in plastic PET packaging equipment (Tetra Laval / Sidel)
DG Economic and Financial Affairs (ECFIN) (Brussels)
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DG COMP (Brussels)
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DG GROW (Brussels)
"Merger Control: Main developments between 1st September 2002 and 31st December 2002"* On 25 October 2002, the Court of First Instance (CFI) delivered its ruling in case T-5/02, Tetra Laval v Commission, and annulled the Commission’s Decision of 30 October 2001 declaring as incompatible with (...)

The EU Court of First Instance overturns the EU Commission decision’s to block a merger between two UK tour operators addressing the issue of collective dominance (Airtours / First Choice)
White & Case (Brussels)
In a critical decision, the European Court of First Instance (“CFI”) reversed the decision of the EC Commission, which had blocked AirTours’ acquisition of First Choice, a rival UK tour operator, under Article 2(3) of the EC Merger Control Regulation on the basis that it would have created a (...)

The EU Court of First Instance annuls the Commission’s decision to prohibit a merger between two UK based holiday tour operators (Airtours / First Choice)
DG Economic and Financial Affairs (ECFIN) (Brussels)
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DG COMP (Brussels)
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DG GROW (Brussels)
"Merger Control: Main developments between 1st May 2002 and 31th August 2002"* On 6 June 2002 the European Court of First Instance (CFI) annulled the Commission’s decision to prohibit a merger between Airtours and First Choice, two UK based holiday tour operators. Though the Commission had (...)

The Organisation for Economic Co-operation and Development holds a roundtable on merger review in emerging high innovation markets
OECD - Competition Division
Key documents: Executive Summary with key findings, Detailled Summary of the discussion, Background note Executive summary, by the Secretariat Considering the discussion at the roundtable, the written submissions and the Secretariat’s issues paper, a number of key points emerge: (1) In many (...)

The Spanish Supreme Court annuls a Government decision to impose on parties to a merger in the security sector remedies which are substantially and unjustifiably different to the remedies proposed by the National Competition Authority (Prosegur / Blindados del Norte)
Cuatrecasas, Gonçalves Pereira (Madrid)
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Lonza (Basel)
Background On June 29, 2000, Prosegur, a company active in the security and cash-in-transit services markets, notified the former Service for Defense of Competition (Servicio de Defensa de la Competencia, “SDC”) of the acquisition of Blindados del Norte (“Blindados”), a company operating in the (...)

The Spanish Supreme Court annuls a merger prohibition decision in the local bus transport sector as the operation was already tacitly cleared (Salcai / Utinsa)
Cuatrecasas, Goncalves Pereira (Madrid)
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CMS Albiñana y Suárez de Lezo (Madrid)
On April 1, 2002, in the case Salcai/Utinsa, the Spanish Supreme Court (Tribunal Supremo, TS) for the first time annulled completely a decision adopted by the Council of Ministers regarding the prohibition of a merger. Background The parties involved in the merger were two local transport (...)

The EU Court of First Instance annuls the Commission’s decision by which it authorizes the merger aspects of the restructuring of the German coal industry (RAG / Saarbergwerke / Preussag Anthracite)
DG Economic and Financial Affairs (ECFIN) (Brussels)
,
DG COMP (Brussels)
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Financial Conduct Authority (London)
"Merger Control: Main developments between 1st January 2001 and 30th April 2001"* On 31 January 2001 the Court of First Instance (‘CFI’) annulled the Commission’s decision of 29 July 1998 (COMP/ECSC.1252) by which the Commission authorised the merger aspects of the restructuring of the German (...)

The U.S. District Court for the Northern District of California holds that the State failed to establish a prima facie case that a hospital merger would have anticompetitive effects (Sutter Health / Summit / Alta Bates)
Kentucky Department of Financial Institutions
The State of California brought suit against two hospitals claiming that the proposed merger would have anticompetitive effect in violation of Clayton Act. The State moved for preliminary injunction preventing merger from happening. Background: Defendants Summit and Alta Bates are hospitals (...)

The Hungarian Competition Authority clears a merger in the mobile and wired telecommunications sector subject to a non-discrimination obligation (Westel 900 / Magyar Távközlési)
Clifford Chance
The operation The HCO authorized the acquisition of control of Matáv over the Westel and Westel 900 mobile service operators. Matáv mainly operates in the wired telecommunication sector but through its ownership in the Westel 450 and Westel 900 mobile service operators it is an important player (...)

The U.S. District Court for the District of Columbia overturns a FTC decision to prevent the proposed merger of two of the three major U.S. baby food producers and clears it based on the finding of economic efficiencies (Heinz / Beech Nut)
WilmerHale (Washington)
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Hughes Hubbard & Reed (Washington)
This week, Judge James Robertson of the United States District Court for the District of Columbia denied the Federal Trade Commission’s motion for a preliminary injunction to prevent the proposed merger of two of the three major U.S. baby food producers, Heinz and Beech-Nut, while the FTC (...)

The Spanish Supreme Court annuls a decision authorizing a merger on grounds other than competition law (Antena 3 de Radio / Sociedad Española de Radiodifusión / Sociedad de Servicios Radiofónicos Unión Radio)
Cuatrecasas, Gonçalves Pereira (Madrid)
,
Cuatrecasas, Goncalves Pereira (Madrid)
On June 9, 2000, the Spanish Supreme Court annulled, on other grounds than competition law, the Spanish Council of Ministers’ decision of May 20, 1994 (“the Decision”) to not oppose a merger involving transferring part of Antena 3 Radio, SA (“A3”) and Sociedad Española de Radiodifusión, SA (“SER”) (...)

The US Court of Appeals for the Eighth Circuit reverses a district court’s order enjoining the merger of two hospitals (Tenet Healthcare / Poplar Bluff Physicians Group)
Kentucky Department of Financial Institutions
The FTC filed a motion for a preliminary injunction to block the proposed acquisition of Tenet Healthcare and Poplar Bluff Physicians Group, doing business as Doctors’ Regional Medical Center, in Poplar Bluff, Missouri. The FTC alleged that the proposed merger of the only two general hospitals (...)

The EU Court of First Instance confirms the Commission’s decision prohibiting a merger in the platinum and rhodium markets (Impala Platinum / Gencor / Lonrho)
DG GROW (Brussels)
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European Commission - DG CLIMA
"Comment on the Judgement of the Court of First Instance of 25 March 1999 in the merger case IV/M.619 - Gencor/Lonrho"* Gencor is a South African mining group controlling the South African platinum mining company Impala Platinum (“Implats”). Lonrho is a British company with interests in two (...)

The EU Court of Justice annuls for the first time a Commission’s decision under the merger regulation (Kali+Salz / MDK / Deutsche Treuhand)
DG COMP (Brussels)
The Kali+Salz-case – the re-examination of a merger after an annulment by the Court* (1) Background With judgement of 31 March 1998 the European Court of Justice annulled the Commission’s decision in the case Kali+Salz/MdK/Deutsche Treuhand. The case came before the Court as an appeal against (...)

The U.S. District Court for the Eastern District of New York allows the two largest most prestigious hospitals on Long Island to merge (Long Island Jewish Medical Center / Norton Shore Health)
Kentucky Department of Financial Institutions
The FTC brought antitrust action under Section 7 of the Clayton Act to prevent merger of two not-for-profit hospitals in Long Island, New York. The New York healthcare industry has experience significant changes prior to the proposed merger of the two hospitals. Further complicating the (...)

A U.S. District Court holds that the government failed to meet the geographic market requirement, and therefore, failed to establish that a hospital merger would have anticompetitive effects (Mercy / Finley)
Kentucky Department of Financial Institutions
Mercy Health Center (Mercy) and Finley Hospital (Finley) are the only two general acute care hospitals in Dubuque, Iowa. The two hospitals agreed to merge and form a partnership, Dubuque Regional Health Services. On June 10, 1994, the government filed a complaint seeking injunctive relief (...)

The President of the EU Court of First Instance rejects a request for interim measures concerning a proposed concentration in the TV broadcasting sector (Sogecable)
DG GROW (Brussels)
"Mergers : Summary of the most important recent developments"* On 12.07.1996 the Judge President of the Court of First Instance (CFI) decided to reject the request from Sogecable for interim measures by declaring the appeal irreceivable. Sogecable had brought action against the Commission (...)

The U.S. Eighth Circuit Court of Appeals affirms a district court decision in concluding that the FTC’s proposed market definition for a hospital merger was an unreasonable approach (Freeman / Oak Hill)
Kentucky Department of Financial Institutions
The FTC brought suit seeking a preliminary injunction to prevent the merger of two hospitals in Joplin, Missouri, contending the transaction would have anticompetitive effects in violation of Section 7 of the Clayton Act. The City of Joplin, Missouri, a community of approximately 40,000 (...)

The EU Court of First Instance reviews the Commission’s decision in a merger case concerning the beverages industry (Nestle / Perrier)
DG REGIO (Brussels)
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European Commission - DG HR (Brussels)
"Mergers : summary of the most important recent developments"* On 27 April 1995, the Court of First Instance (CFI) ruled on two cases, one brought by the employees of Perrier and the other by the employees of Vittel and Pierval, against the Commission’s decision of 22 July 1992 in the case (...)

The U.S. Eleventh Circuit Court of Appeals holds that a hospital’s decision to acquire a competing hospital in the same county was not in violation of the Clayton Act under the state action exemption to federal antitrust laws (Hospital Board of Directors of Lee County / Cape Coral Medical Center)
Kentucky Department of Financial Institutions
The FTC filed a complaint for a preliminary injunction and a temporary restraining order to prevent the Hospital Board of Directors of Lee County, a nonprofit public organization which owns and operates Lee Memorial Hospital, from acquiring the assets of Cape Coral Medical Center, Inc., which (...)

The U.S. Eleventh Circuit rejects the proposed acquisition of a nonprofit hospital of another area hospital (University Hospital / St Joseph Hospital)
Kentucky Department of Financial Institutions
The Federal Trade Commission (“FTC”) sought preliminary injunction to prevent defendants University Hospital and St. Joseph Hospital of August, Georgia from consummating a proposed asset acquisition agreement, alleging the proposed merger acquisition would violate Section 7 of the Clayton Act. (...)

The U.S. District Court for the Western District of Virginia rejects the government’s attempt to stop a proposed merger of two not-for-profit hospitals (Carilion Health System / Community Hospital of Roanoke Valley)
Kentucky Department of Financial Institutions
The United States Justice Department (“DOJ”) filed suit to prevent defendants, Carilion Health System, a not-for-profit corporation which owns and operates Roanoke Memorial Hospitals, and Community Hospital of Roanoke Valley, a not-for-profit corporation which owns and operates Community Hospital (...)

The U.S. FTC holds that a for-profit hospital chain’s acquisition of a competing hospital is in violation of § 7 of the Clayton Act and § 5 of the FTC Act (AMI / AMISUB)
Kentucky Department of Financial Institutions
American Medical International, Inc. (“AMI”) is a Delaware corporation engaged in the operation and management of proprietary hospitals in the United States and in foreign countries. AMI owns approximately 64 hospitals in the United States and abroad and it is the third largest proprietary (...)

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