Mergers & Judicial review

Foreword Mergers & Judicial review: An overview of EU and national case law

The EU Courts have played an important role in the evolution of the EU Merger Regulation (the “EUMR”), acting as an effective check on its application by the European Commission (the “Commission”), exerting discipline over Commission decisions in the same way as U.S. courts discipline the U.S. federal agencies’ determinations of whether mergers should be allowed to proceed. In recent years, as described further below, the EU Courts have rendered a number of important judgements that, among other things, have clarified the Commission’s application of the EUMR’s substantive test (i.e., whether a concentration will significantly impede effective competition) to “gap” cases (i.e., horizontal mergers that will not create or strengthen a dominant position but nevertheless raise unilateral effects concerns) and confirmed the Commission’s March 2021 policy of encouraging national competition agencies to refer transactions to the Commission under Article 22 of the EUMR that do not meet the relevant national merger control thresholds but nevertheless threaten to have significant anti-competitive effects in the EU. This Foreword describes the EU Courts’ contribution to merger control and identifies some of the leading judgments rendered at the national level, where courts have also played an active role in shaping merger control.

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Cleary Gottlieb Steen & Hamilton (London)

Mergers

The UK Competition Authority announces that the Competition Appeal Tribunal has fully dismissed a legal challenge brought against a decision by the Competition Authority to block a merger between the two largest suppliers of "ready to bake" products (Cerelia / Jus-Rol)
UK Competition & Markets Authority - CMA (London)
CMA wins legal challenge in Cérélia/Jus-Rol case* The Competition Appeal Tribunal has fully dismissed a legal challenge by Cérélia and upheld the CMA’s decision to block Cérélia’s acquisition of Jus-Rol. The Tribunal dismissed all 4 grounds of Cérélia’s “attack” on the CMA’s decision. (...)

The Spanish Competition Authority announces that the EU Commission is initiating a review of a proposed acquisition of a traffic safety system manufacturer by one of the largest microchips manufacturers (Qualcomm / Autotalks)
Spanish Competition Authority (CNMC) (Madrid)
European Commission to review Qualcomm’s acquisition of Autotalks following CNMC request* The CNMC requested the European Commission to review the transaction under Article 22 of the EU Merger Regulation. The European Commission can assess transactions that do not meet the EU notification (...)

The French Competition Authority announces that the EU Commission is initiating a review of a proposed acquisition of a traffic safety system manufacturer by one of the largest microchips manufacturers following the referral request by the French and six other European competition authorities (Qualcomm / Autotalks)
French Competition Authority (Paris)
The European Commission is initiating a review of Qualcomm’s acquisition of Autotalks under Article 22 of the 2004 Merger Regulation* Background Following the referral request by the Autorité and six other European competition authorities (Belgium, Italy, Netherlands, Poland, Spain and (...)

The Canadian Federal Court of Appeal upholds the Competition Authority’s decision on the merger of two rival suppliers of oilfield waste services which ordered divestiture remedies to resolve ongoing harm to competition in certain regions of the country (Secure / Tervita)
Canadian Competition Bureau (Gatineau)
Federal Court of Appeal upholds Competition Bureau’s successful challenge of Secure and Tervita merger* The Federal Court of Appeal has dismissed a petition by Secure Energy Services, upholding the Competition Bureau’s successful challenge of the merger of two rival suppliers of oilfield (...)

The EU Commission initiates a formal investigation to determine whether the acquisition of a major media group with significant publishing operations by a rival violates the notification requirement and “standstill obligation” set out in the EU Merger Regulation (Lagardère / Vivendi) Free
European Commission - DG COMP (Brussels)
Mergers: Commission opens formal investigation for possible breach of notification requirement, standstill obligation and clearance conditions and obligations in Vivendi/Lagardère transaction* The European Commission has decided to open a formal investigation to determine whether, when (...)

The EU Court of Justice clarifies the conditions under which member states can block FDI and rules that FDI screening mechanisms does not apply to EU-based purchasers (Xella Magyarország)
Jones Day (Frankfurt)
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Jones Day (Paris)
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Jones Day (Brussels)
In Short The Situation: On July 13, 2023, the European Court of Justice ("ECJ") issued a judgment (Case C-106/22 - Xella) clarifying the conditions under which EU Member States may screen and block foreign direct investments. The Background: Over the past few years, EU Member States have (...)

The EU Court of Justice overturns the Hungarian Competition Authority’s decision and reaffirms that FDI screening mechanisms must respect fundamental freedoms of the EU (Xella Magyarország)
Freshfields Bruckhaus Deringer (Berlin)
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Freshfields Bruckhaus Deringer (Berlin)
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Freshfields Bruckhaus Deringer (Berlin)
Weak cases sometimes make good law. On 13 July, the ECJ in Case C-106/22 held that: Except in specific circumstances, the EU FDI Screening Regulation 2019/452 does not apply to acquisitions by EU-based purchasers; and FDI screening measures which restrict fundamental freedoms can only be (...)

The EU Court of Justice holds that the Commission needs to show based on a "cogent and consistent body of evidence" that a merger will result in a significant impediment to effective competition before it blocks the transaction or imposes remedies (Telefónica / Hutchison 3G)
White & Case (Brussels)
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White & Case (Düsseldorf)
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White & Case (Brussels)
The EU Court of Justice in the CK Telecoms ruling has addressed key questions of EU merger control, including the standard of proof for the European Commission to challenge a merger, the assessment of mergers below the dominance threshold ("gap cases"), the concepts of "closeness of (...)

The EU Court of Justice holds that the General Court erred in law, inter alia, when it said the Commission must demonstrate a strong probability that a merger in the telecoms sector would significantly impede effective competition, the correct standard is on the balance of probabilities (Telefónica / Hutchison 3G)
European Court of Justice (Luxembourg)
The General Court must rule once more on the lawfulness of the Commission’s prohibition of the acquisition of Telefónica Europe (‘O2’) by Hutchison 3G UK (‘Three’)* On 11 May 2016, the Commission adopted a decision in which it blocked, under the Merger Regulation, the proposed acquisition of (...)

The EU Court of Justice hands down its judgment regarding the legal standard and burden of proof in so-called “gap cases” which reverses the stricter legal tests articulated by the EU General Court and lays out a blueprint for the assessment of gap cases going forward (Telefónica UK / Hutchison 3G UK)
Van Bael & Bellis (Brussels)
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Van Bael & Bellis (Brussels)
On 13 July 2023, the European Court of Justice (“ECJ”) handed down its judgment in Case C-376/20 P Commission v CK Telecoms UK Investments regarding the legal standard and burden of proof in so-called “gap cases”. These are cases in which a transaction – typically involving smaller players in (...)

The EU Court of Justice holds that freedom of establishment in the EU precludes a national FDI control mechanism which prohibits the acquisition of a company registered in a Member State by another company with a third-country shareholder enjoying a decisive influence (Xella Magyarország)
University of Strasbourg
The European Court of Justice holds that freedom of establishment precludes a national foreign investment control mechanism which prohibits the acquisition of a company registered in a Member State by another company registered in the same Member State in which a third-country shareholder (...)

The EU Court of Justice reverses a ruling of the General Court and confirms that requisite burden of proof in merger cases is the balance of probabilities, as opposed to the strong probability standard proposed by the General Court (Telefónica / Hutchison 3G)
Van Bael & Bellis (Brussels)
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Van Bael & Bellis (Brussels)
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Van Bael & Bellis (Brussels)
On 13 July 2023, the European Court of Justice (“ECJ”) handed down its judgment in Case C-376/20 P Commission v CK Telecoms UK Investments regarding the legal standard and burden of proof in so-called “gap cases”. These are cases in which a transaction – typically involving smaller players in (...)

The EU Court of Justice annuls a General Court decision which had adopted a high standard of proof for the Commission to block transactions in concentrated markets in which neither the parties to the deal nor other competitors have a dominant position (Telefónica / Hutchison 3G)
Jones Day (Paris)
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Jones Day (Amsterdam)
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Hogan Lovells (London)
In Short The Development: The Court of Justice of the European Union ("ECJ") annulled a General Court ("GC") ruling that had adopted a high standard of proof for the European Commission ("EC") to block transactions in concentrated markets in which neither the parties to the deal nor other (...)

The UK Competition Appeal Tribunal dismisses an appeal by a Canadian software company against the Competition Authority’s decision to reject a proposed “dual-track” remedy in an acquisition transaction (Dye & Durham’s / TM Group)
Cleary Gottlieb Steen & Hamilton (London)
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Cleary Gottlieb Steen & Hamilton (London)
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10BE5 (London)
CAT Upholds CMA’s Rejection of Dual-Track Remedy Proposal* On 10 July 2023, the UK Competition Appeal Tribunal (CAT) dismissed an appeal by Canadian software company Dye & Durham’s (D&D) against a decision of the Competition and Markets Authority (CMA) to reject a proposed (...)

The Australian Competition Tribunal affirms the Competition Authority’s decision not to grant authorisation for the proposed regional spectrum authorisation arrangements between two telecommunication companies (Telstra / TPG Telecom)
Australian Competition and Consumer Commission (Canberra)
Australian Competition Tribunal denies authorisation for Telstra and TPG regional network deal* The Australian Competition Tribunal has affirmed the ACCC’s decision not to grant authorisation for the proposed regional spectrum authorisation arrangements between Telstra Corporation Limited (...)

The Chinese Higher People’s Court of Beijing rules that an ongoing merger review by the Competition Authority will not stop the enforcement of the arbitral awards by the merging parties (Burich / Tobishi / Puyuan / Simcere)
AnJie Broad Law (Beijing)
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AnJie Broad Law (Beijing)
Does the Ongoing SAMR Merger Review Stop Enforcement of the Arbitral Awards?* A recent ruling rendered by Beijing Higher People’s Court of China, on granting the enforcement of the arbitral awards, has attracted much attention and discussion of the competition law circle. Specifically, this (...)

The Brussels Market Court of Appeal rejects a food retailer’s request to annul the approval of a merger between two rivals (Carrefour / Mestdagh / Intermarché)
Van Bael & Bellis (Brussels)
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Van Bael & Bellis (Brussels)
On 14 June 2023, the Markets Court of the Brussels Court of Appeal (Marktenhof / Cour des marchés – the Markets Court) dismissed the appeal of retailer Carrefour against the decision of the Belgian Competition Authority (Belgische Mededingingsautoriteit / Autorité belge de la Concurrence – the (...)

The UK Competition Appeal Tribunal announces the receipt of an application to review the Competition Authority’s decision to prohibit the acquisition of a leading video game publisher (Microsoft / Activision Blizzard)
Arthur Cox (Dublin)
This article discusses how the CMA has reached a ‘tipping point’ in ‘Big Tech’ merger enforcement, what the Competition Appeals Tribunal could do in Microsoft v Competition and Markets Authority to recentre and refocus the CMA’s work, and why this all matters to digital markets, and beyond. (...)

The EU General Court rejects a claim alleging the Commission was mistaken to treat a complex merger involving several transactions separately and endorses the analysis and decision-making process (EVH / E.ON / RWE)
European Court of Justice (Luxembourg)
The action brought by the German electricity producer EVH against the approval by the Commission of the acquisition of E.ON assets by RWE is dismissed* The General Court points out in particular that an asset swap between independent undertakings does not constitute a ’single concentration’ (...)

The EU General Court dismisses a third-party’s challenge to the Commission’s approval of an energy assets acquisition and clarifies the concept of a “single concentration” in relation to asset swaps (EVH / E.ON / RWE)
Van Bael & Bellis (Brussels)
On 17 May 2023, the General Court issued a ruling that dismissed a third-party challenge to the European Commission’s (“Commission”) approval of RWE/E.ON Assets and clarified the concept of a “single concentration” in relation to asset swaps. RWE and E.ON, two energy companies, entered into (...)

The EU General Court dismisses an application to annul the Commission’s declaration of a concentration to be compatible with the common market due to the applicant’s lack of locus standi (enercity / E.ON / RWE)
Van Bael & Bellis (Brussels)
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Van Bael & Bellis (Brussels)
On 17 May 2023, the General Court dismissed an application for annulment brought against a European Commission (“Commission”) decision declaring a concentration to be compatible with the common market due to the applicant’s lack of standing (Case T-321/20, enercity v Commission). The judgment (...)

The EU General Court declares inadmissible an action seeking to block a complex acquisition of assets by a German energy utility of a French State-backed rival on the grounds that the third party which brought the action was not sufficiently active during the merger procedure (enercity / E.ON / RWE)
European Court of Justice (Luxembourg)
The action brought by the German municipal authority enercity against the approval by the Commission of the acquisition of generation assets of E.ON by RWE is inadmissible* The General Court provides clarification in that context of the novel question of the burden of proof so far as (...)

The EU Court of Justice AG Collins urges the Court of Justice to dismiss an appeal to overturn a gun jumping fine of €124.5M in the telecommunications sector (Altice / PT Portugal)
Hogan Lovells (London)
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Hogan Lovells (London)
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Hogan Lovells (London)
An EU Advocate General has advised that an appeal brought by Altice should be dismissed in its entirety – in effect confirming the validity of a 2018 European Commission decision imposing a record fine on Altice for breaching EU merger control rules in relation to its 2015 purchase of (...)

The Brussels Court of Appeal upholds the Competition Authority’s approval of an acquisition in the media and broadcasting sector (DPG media / Rossel & Cie / RTL Belgium / Audiopresse / New Contact / Radio H ...)
Belgian Competition Authority (Brussels)
Market Court confirms approval for acquisition of RTL Belgium by DPG Media and Rossel* In its judgment of 26 April 2023, the Market Court (section of the Brussels Court of Appeal) upheld the concentration decision of the College of the Belgian Competition Authority (BCA) regarding the (...)

The Australian Competition Authority outlines recommendations for the proposed national merger law reform
King & Wood Mallesons (Sydney)
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King & Wood Mallesons (Melbourne)
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King & Wood Mallesons (Sydney)
This alert follows our alerts in August 2021 and March 2023 about the ACCC’s calls for changes to Australia’s current merger clearance laws and processes. The Chair of the ACCC, Gina Cass-Gottlieb, today outlined the recommendations that it has made to Treasury in relation to these reforms. (...)

The Australian Competition Authority continues its advocacy for a mandatory merger notification regime
King & Wood Mallesons (Melbourne)
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King & Wood Mallesons (Sydney)
While the ACCC continues to believe that Australia’s current merger laws aren’t fit for purpose, it appears to have refined its thinking on aspects of the proposals first unveiled in August 2021, following comments made by ACCC Commissioner Stephen Ridgeway during a keynote discussion at the (...)

The EU Court of Justice confirms the ex post application of abuse of dominance rules to non-notifiable mergers (Towercast)
Van Bael & Bellis (Brussels)
On 16 March 2023, the Court of Justice (ECJ) issued a preliminary ruling in case C-449/21, Towercast SASU v. Autorité de la concurrence and others (“Towercast”) finding that concentrations that are not subject to any ex-ante notification requirement under national or EU merger control rules (...)

The EU Court of Justice rules that Article 102 TFEU permits the ex post review of completed mergers at the national level, with a non-Community dimension (Towercast)
Freshfields Bruckhaus Deringer (Berlin)
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Competition and Markets Authority (London)
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Freshfields Bruckhaus Deringer (London)
The European Court of Justice ( CJEU ) handed down its judgment in Towercast on 16 March 2023, confirming Advocate General Juliane Kokott’s Opinion from October 2022 that the prohibition on abuse of dominance under Article 102 TFEU is applicable to certain non-reportable mergers by dominant (...)

The EU Court of Justice confirms that the national authorities can review ex post below-threshold mergers under abuse of dominance rules (Towercast)
White & Case (Brussels)
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Schibsted (Oslo)
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White & Case (Brussels)
The long-awaited European Court of Justice’s judgment in Towercast confirmed that national competition authorities (and national courts) can apply abuse of dominance rules to mergers that did not trigger EU and national merger control thresholds, and were not referred to the European (...)

The EU Court of Justice resurrects an old doctrine to permit the challenge of completed mergers that fall outside the merger thresholds under Art. 102 TFEU (Towercast)
Shearman & Sterling (London)
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Shearman & Sterling (London)
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Shearman & Sterling (Brussels)
Overview The European Court of Justice (CJEU) brought back to life an old theory which allows acquisitions, which fall below EU and national merger control thresholds, to be challenged post-completion under abuse of dominant position rules (Article 102 TFEU). The judgment creates yet another (...)

The Canadian Competition Tribunal rules in favour of the Competition Authority and imposes structural remedies in a merger between the two largest suppliers of oilfield waste service providers in the Western Canada Sedimentary Basin area (Secure / Tervita)
Canadian Competition Bureau (Gatineau)
Competition Bureau successful in challenge of Secure and Tervita merger* News release Competition Tribunal orders Secure to sell 29 facilities to resolve ongoing harm to competition in Western Canada On March 3, 2023, the Competition Tribunal ruled in favour of the Commissioner of (...)

The US FTC abandons its challenge to the acquisition of a virtual reality fitness app by a social media giant following a District Court’s denial of FTC’s request for a preliminary injunction (Meta / Within)
Weil, Gotshal & Manges (Washington)
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Weil, Gotshal & Manges (Washington)
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Weil, Gotshal & Manges (New York)
On February 24, 2023, the Federal Trade Commission officially dismissed its administrative challenge to Meta Platforms, Inc.’s acquisition of Within Unlimited, Inc. (Within), the company behind the virtual reality (VR) fitness application, Supernatural. The move by the FTC came less than a (...)

The Norwegian Supreme Court clears the proposed acquisition of a used car sales online portal by an online marketplace (Schibsted / Nettbil)
Norwegian Competition Authority (Bergen)
Supreme Court of Norway allows Schibsted to acquire Nettbil* The Supreme Court of Norway has dismissed the Competition Authority’s appeal against the Court of Appeal‘s judgment annulling the decision of the Competition Tribunal of 27 May 2021 prohibiting the acquisition by Schibsted of (...)

The Norwegian Supreme Court affirms the annulment of the Competition Authority’s decision prohibiting the acquisition of a used car sales online portal by an online marketplace owner (Schibsted / Nettbil)
Van Bael & Bellis (Brussels)
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Roschier (Stockholm)
In its judgment of 16 February 2023, the Norwegian Supreme Court (the “Supreme Court”) affirmed the annulment of a decision by the Norwegian competition authority (“NCA”) which had prohibited Schibsted ASA (“Schibsted”) from acquiring a majority stake in the used car sales portal Nettbil AS (...)

The EU Court of Justice commences hearing on an appeal filed by a telecommunications firm against the General Court’s decision to uphold a record gun jumping fine of €124.5M (Altice / PT Portugal)
Cleary Gottlieb Steen & Hamilton (Brussels)
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Cleary Gottlieb Steen & Hamilton (Brussels)
Altice Defends its Appeal of the General Court’s Decision to Uphold Record Gun-Jumping Fine in a Hearing before the Court of Justice* On February 1, 2023, the Court of Justice held a hearing in Altice’s appeal against the General Court’s decision in 2021 to largely uphold the Commission’s (...)

The Canadian Federal Court of Appeal dismisses the Competition Authority’s appeal against a ruling which annulled a merger prohibition in the telecommunications sector (Rogers / Shaw)
Canadian Competition Bureau (Gatineau)
Statement from the Commissioner of Competition on the Federal Court of Appeal’s decision regarding the Rogers-Shaw merger* Matthew Boswell, Commissioner of Competition, issued the following statement about the Federal Court of Appeal’s ruling to dismiss the Competition Bureau’s appeal in the (...)

The Canadian Federal Court of Appeal dismisses the Competition Authority’s appeal and clears a merger in the telecommunications sector subject to conditions (Rogers / Shaw)
Journal of Parliamentary and Political Law (Ottawa)
Introduction Tuesday 24 January 2023 was not a good day for Canada’s Competition Commissioner (‘the Commissioner’) and the Competition Bureau (‘the Bureau’), which assists the Commissioner in the administration and enforcement of the Competition Act (‘the Act’). This day marked the Federal (...)

The Italian Administrative Supreme Court upholds the Government’s veto of a Chinese multinational’s proposed acquisition of a Dutch seed producer (Verisem / Syngenta / ChemChina)
Portolano Cavallo (Milan)
On January 9, 2023, the Italian Administrative Supreme Court upheld the Italian government’s veto under Italian Foreign Direct Investment (“FDI”) rules of the acquisition of the Dutch agri-food sector company Verisem B.V. and its subsidiaries (including some Italian subsidiaries) by the Swiss (...)

The Italian Administrative Supreme Court upholds a veto against an acquisition in the agri-food sector and holds that the Prime Minster has a wide margin of discretion in the application of the national foreign direct investment screening mechanism (Verisem / Syngenta / ChemChina)
Van Bael & Bellis (Brussels)
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Van Bael & Bellis (Brussels)
On 9 January 2023, the Italian highest administrative court (Consiglio di Stato, “COS”), emphatically confirmed that the Italian President of the Council of Ministers (informally also referred to as Prime Minister) enjoys a very wide margin of discretion in the application of the national (...)

The Canadian Competition Tribunal dismisses the Competition Authority’s challenge over a merger between two of Canada’s four biggest broadband providers (Rogers / Shaw)
Canadian Competition Bureau (Gatineau)
Statement from the Commissioner of Competition on the Competition Tribunal’s Information Note regarding the Rogers-Shaw merger* Matthew Boswell, Commissioner of Competition, issued the following statement regarding the Competition Tribunal’s Information Note indicating it intends to dismiss (...)

The Belgian Brussels Court of Appeal rejects a supermarket’s request to suspend a merger between two of its rivals due to gun jumping (Carrefour / Intermarché / Mestdagh)
Altius (Brussels)
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Altius (Brussels)
Introduction On 23 December 2022, the Brussels Court of Appeal (the Market Court) rejected Carrefour Belgium’s application for the suspension of the Belgian Competition Authority’s (BCA’s) decision of 9 November 2022, which authorised the concentration between Intermarché AB (ITM) and (...)

The German Higher Regional Court of Düsseldorf provides guidance on when a target has “significant domestic activities” under the transaction value threshold for domestic merger notifications (Meta / Kustomer)
Van Bael & Bellis (Brussels)
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Van Bael & Bellis (Brussels)
On 23 November 2022, in appeal proceedings lodged by Meta against a decision of the German Federal Cartel Office (“FCO”) relating to its acquisition of Kustomer, the Higher Regional Court of Düsseldorf (the “Court”) provided guidance on the interpretation of the criterion of “significant (...)

The Canadian Competition Tribunal dismisses the Competition Authority’s challenge of an acquisition by a grain company of a grain elevator (P&H / Virden Elevator / Louis Dreyfus)
Canadian Competition Bureau (Gatineau)
Competition Bureau to review Tribunal ruling on its challenge of P&H’s acquisition of grain elevator in Virden, MB* The Competition Tribunal issued a decision dismissing the Competition Bureau’s challenge of Parrish & Heimbecker’s (P&H) acquisition of one primary grain elevator (...)

The EU Court of Justice AG Kokott clarifies the standards of proof for the existence of non-coordinated effects satisfying the concept of ‘significant impediment to effective competition’ on an oligopolistic market where the merged entity does not have a dominant position (Telefónica UK / Hutchison 3G UK)
European Court of Justice (Luxembourg)
Merger control: Advocate General Kokott clarifies the standards of proof of the existence of non-coordinated effects satisfying the concept of ‘significant impediment to effective competition’ on an oligopolistic market where the merged entity does not have a dominant position* The scope of (...)

The EU Court of Justice AG Kokott advises the Court to uphold the Commission’s appeal on the grounds that the General Court erroneously applied a stricter burden of proof for the SIEC test and erred in law by misinterpreting the concept of a SIEC (Telefónica UK / Hutchison 3G UK)
Cleary Gottlieb Steen & Hamilton (Brussels)
Advocate General Sides with Commission in its Appeal of General Court’s Overturning of Three/O2 Prohibition* Non-binding opinion finds that General Court erred in applying heightened standard of proof to cases involving unilateral effects in oligopolistic markets. The Case and the Opinion (...)

The EU Court of Justice AG Kokott supports setting aside the General Court’s ruling and overturning the prohibition order of a merger between telecoms (Telefónica UK / Hutchison 3G UK)
Van Bael & Bellis (Brussels)
On 20 October 2022, Advocate General Kokott issued an opinion that the General Court (“GC”) had erred in its ruling in the C.K. Telecoms case by misstating the correct legal test to prohibit an oligopolistic merger and for engaging in an overly broad legal review of the Commission’s decision. (...)

The US FTC Office of Administrative Law Judges dismisses the Commission’s challenge over the acquisition of a biotech startup by a major biotech company (Illumina / Grail)
US Federal Trade Commission (FTC) (Washington)
Administrative Law Judge Dismisses FTC’s Challenge of Illumina’s Proposed Acquisition of Cancer Detection Test Maker Grail* Agency Alleged Vertical Merger would Harm Competition in the U.S. Market for Life-Saving Multi-Cancer Early Detection Tests In an Initial Decision announced on Sept. (...)

The EU General Court declares that the Commission may review mergers that do not meet the relevant threshold set out in Article 22 of Council Regulation (EC) No 139/2004 provided that a Member State refers the merger to the Commission (Illumina / Grail)
Callol, Coca & Asociados (Madrid)
The General Court (GC) has issued its judgment on case T-227/21 between Illumina, Inc., and the European Commission. This much awaited decision adjudicated on the issue of whether or not Article 22 of Council Regulation (EC) No 139/2004, on concentrations between undertakings (EUMR) empowers (...)

The EU General Court confirms that the Commission may assess mergers that do not meet the required thresholds if a Member State refers the transaction under Art. 22 EUMR (Illumina / Grail)
McDermott Will & Emery (Paris)
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Squire Patton Boggs (Brussels)
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McDermott Will & Emery (Paris)
The GCEU upheld the decision of the EC accepting a referral request from France, as joined by other Member States, asking it to assess the proposed acquisition of GRAIL by Illumina (Judgment of July 13, 2022, Case T-227/21, Illumina, Inc; v Commission). Background On September 21, 2020, (...)

The EU General Court rules that the Commission has the power to review a merger even though the turnover thresholds have not been triggered (Illumina / Grail)
McDermott Will & Emery (Brussels)
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Allen & Overy (Brussels)
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Allen & Overy (Brussels)
In Illumina v Commission, the General Court has confirmed the authority of the European Commission (EC) under Article 22 EU Merger Regulation (EUMR) to examine a transaction that does not have a European dimension, but which is the subject of a referral request made by a Member State – even if (...)

The EU General Court endorses the Commission’s new approach to Article 22 EUMR allowing the capture of mergers below the thresholds (Illumina / Grail)
Orrick, Herrington & Sutcliffe (Paris)
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Orrick, Herrington & Sutcliffe (Paris)
In a judgment dated 13 July 2022 (T-227/21), the General Court of the European Union (the “General Court” or the “Court”) upheld the decision of the European Commission (the “Commission”) whereby the latter accepted to assert its (merger control) jurisdiction over the “below-the-thresholds” (...)

The EU General Court confirms the Commission may review a merger between two biotech companies even though the EU and national turnover thresholds are not reached (Illumina / Grail)
Van Bael & Bellis (Brussels)
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Van Bael & Bellis (Brussels)
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Van Bael & Bellis (Brussels)
Yesterday, the General Court of the European Union came down on the side of the European Commission (the Commission ) in that agency’s dispute with genomics firm Illumina and held that the Commission has jurisdiction to examine Illumina’s acquisition of cancer detection test start-up Grail, (...)

The EU General Court upholds the Commission’s decision prohibiting the proposed merger between two steel producers (Thyssenkrupp / Tata Steel)
General Court of the European Union (Luxembourg)
The General Court upholds the Commission’s decision prohibiting the proposed merger between thyssenkrupp and Tata Steel * Thyssenkrupp, a German industrial group, and Tata Steel, a company whose registered office is in India, are active, inter alia, in the manufacturing and supply of flat (...)

The EU General Court upholds the decision of the Commission to block a joint venture between two large steel producers (ThyssenKrupp / Tata Steel)
Covington & Burling (Brussels)
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Covington & Burling (London)
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Covington & Burling (Brussels)
This article has been nominated for the 2023 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. On 22 June 2022, the EU’s General Court (“GC”) fully dismissed thyssenkrupp’s appeal against the European Commission’s (“Commission”) decision to block its (...)

The EU General Court upholds the Commission’s decision to block a joint venture between two steel producers on the grounds that the Commission must be shown a degree of deference when making its significant impediment of effective competition assessment (ThyssenKrupp / Tata Steel)
Van Bael & Bellis (Brussels)
On 22 June 2022, the GC upheld in full the Commission’s 2019 decision to block a joint venture between ThyssenKrupp and Tata Steel (“the JV”). This was the first appeal of a merger prohibition since the GC overturned the Commission’s prohibition of CK Hutchison’s proposed acquisition of O2 UK (...)

The UK Competition Appeal Tribunal rejects an appeal by a Big Tech firm which sought to block an order forcing the firm to unwind an acquisition but refers the case back to the Competition Authority on a procedural error (Meta / Giphy)
Van Bael & Bellis (London)
On 30 November 2021, the UK’s Competition and Markets Authority (“CMA”) concluded its Phase 2 investigation into Meta’s completed acquisition of Giphy (which closed in May 2020), ordering Meta to reverse the deal and sell Giphy to a CMA-approved purchaser (for further details, see VBB on (...)

The US FTC seeks to block a merger between two local hospitals which would give the combined entity a local market share of over 50% in some services (RWJ Barnabas Health / Saint Peter’s Healthcare System)
US Federal Trade Commission (FTC) (Washington)
FTC Sues to Block Merger Between New Jersey Healthcare Rivals RWJBarnabas Health and Saint Peter’s Healthcare System* Agency Alleges that Deal Would Increase Prices and Reduce Quality of Care for Patients by Eliminating Head-to-Head Competition The Federal Trade Commission authorized an (...)

The EU General Court rejects an appeal against a €28M fine imposed by the Commission for breach of EU gun jumping rules (Canon)
Shearman & Sterling (Brussels)
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Shearman & Sterling (London)
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Shearman & Sterling (London)
On 18 May 2022the European General Court rejected Canon’s appeal against a €28 million fine imposed by the European Commission in 2019 for its breach of EU gun-jumping rules, just a few months after a similar judgment therefore vindicating the Commission’s aggressive stance on such breaches. (...)

The EU General Court upholds a €28M fine for gun jumping in a two-stage transaction to acquire a medical imaging business (Canon / Toshiba Medical Systems)
Van Bael & Bellis (Brussels)
On 18 May 2022, the General Court of the European Union (“GC”) rejected Canon’s appeal of a € 28 million gun jumping fine imposed by the European Commission (“Commission”) in 2019. The judgment is the latest in a string of Commission appellate victories regarding violations of merger control (...)

The Polish Court of Competition and Consumer Protection overturns the Competition Authority’s decision prohibiting the acquisition of a radio broadcasting station by a competitor (Agora / Eurozet)
Polish Competition Authority (Warsaw)
Agora/Eurozet - judgment of the court of first instance* The President of UOKiK will appeal against the judgment of the Court of Competition and Consumer Protection (SOKiK) in the Agora-Eurozet concentration case. SOKiK reversed the decision prohibiting the transaction. The judgment relates (...)

The Canadian Competition Authority files court applications to prevent a merger between two telecommunications companies (Rogers / Shaw)
Canadian Competition Bureau (Gatineau)
Competition Bureau seeks full block of Rogers’ proposed acquisition of Shaw* Bureau files court applications to prevent the merger of two of Canada’s largest telecommunications companies The Competition Bureau is seeking to block Rogers proposed $26 billion acquisition of Shaw in an effort (...)

The Austrian Competition Authority accepts the merger decision of the cartel court in relation to the merger between two wholesale food businesses (Metro / AGM)
Austrian Competition Authority (Vienna)
METRO/AGM merger: Approved by Cartel Court with structural remedies* The merger concerns the acquisition of AGM by METRO and was notified to the Austrian Federal Competition Authority (“AFCA”) on 2 September 2021. The deadline for completion of the Phase I review and the filing of a request (...)

The Rotterdam District Court rules on an appeal against the Competition Authority’s merger clearance decision and finds that merger control rules do not aim to protect competitors on the market potentially affected by the establishment of a joint venture (T-Mobile)
Bird & Bird (The Hague)
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Bird & Bird (The Hague)
Summary On 31 March 2022, the Rotterdam District Court ruled on an appeal lodged by T-Mobile Netherlands against a merger clearance decision by the Dutch Authority for Consumers and Markets (ACM) of 12 May 2021 that KPN and APG did not require a licence for the creation of a concentration (...)

The Norwegian Court of Appeal in Gulating overrules the Competition Tribunal and allows the acquisition between two online car auction companies (Schibsted / Nettbil)
Norwegian Competition Authority (Bergen)
The Court of Appeal allows Schibsted to acquire Nettbil* The Gulating Court of Appeal has today repealed the decision of the Competition Tribunal of 27 May 2021. The Court does not agree with the Norwegian Competition Authority that Schibsted’s acquisition of Nettbil would significantly (...)

The Italian Regional Administrative Court of Lazio rules that completed mergers cannot be considered part of an abuse of dominance strategy (TicketOne)
Cleary Gottlieb Steen & Hamilton (Rome)
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Cleary Gottlieb Steen & Hamilton (Rome)
A Completed Merger Cannot Be Considered as Part of an Abusive Strategy in the Framework of a Later Article 102 Decision* The Regional Administrative Court of Lazio, Italy (the “TAR Lazio”), annulled a decision by which in 2020 the Italian Competition Authority (the “ICA”) had imposed a fine (...)

The US Court of Appeals for the Third Circuit upholds a district court decision granting a preliminary injunction against an acquisition in the health sector (Hackensack Meridian / Englewood Healthcare)
Cleary Gottlieb Steen & Hamilton (Washington)
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Cleary Gottlieb Steen & Hamilton (Washington)
On March 22, 2022, the Third Circuit upheld a district court decision granting a preliminary injunction against Hackensack Meridian Health’s plan to acquire Englewood Healthcare, pending the outcome of an administrative trial by the Federal Trade Commission. The decision aligns with the FTC’s (...)

The US FTC publishes a statement by the Competition Deputy Director John M. Newman on the Federal Appeals Court ruling affirming a preliminary injunction to halt the merger of New Jersey hospital networks (Hackensack Meridian / Englewood Healthcare)
US Federal Trade Commission (FTC) (Washington)
Statement of Federal Trade Commission Bureau of Competition Deputy Director John M. Newman on Federal Appeals Court Ruling Affirming Preliminary Injunction to Halt Merger of New Jersey Hospital Networks* Federal Trade Commission Bureau of Competition Deputy Director John M. Newman issued (...)

The Austrian Competition Authority appeals against the decision of the Cartel Court granting conditional merger approval for a merger between a Big Tech company and a GIF library (Meta / Giphy)
Austrian Competition Authority (Vienna)
Meta (Facebook)/Giphy merger: AFCA appealing against conditional clearance* On 17 August 2021, the Austrian Federal Competition Authority (AFCA) filed a request with the Cartel Court (Z-5549) for an in-depth examination of the merger due to competition concerns (Phase II). The Cartel Court (...)

The EU General Court dismisses a €1.7B claim for damages brought by a courier delivery services company in which it sought compensation for losses resulting from the Commission’s decision to block a merger with its rival (UPS / TNT)
White & Case (Brussels)
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White & Case (Brussels)
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White & Case (Brussels)
On 23 February 2022, the EU’s General Court (GC) dismissed a €1.7 billion claim for damages brought by United Parcel Service Inc. (UPS) against the European Commission (EC). UPS sought compensation for the losses resulting from the EC’s decision to block UPS’ merger with TNT NV (TNT). The GC, (...)

The EU General Court dismisses a damages action for €1.74B brought by a courier delivery services company against the Commission for the losses and costs resulting from the annulment of a merger prohibition decision (UPS / TNT)
Ashurst (Brussels)
On 23 February 2022, the General Court dismissed UPS’s damages action for EUR 1.74 billion against the European Commission for the losses and costs resulting from the annulment of the UPS/TNT merger prohibition decision. Key takeaways Annulment of a merger prohibition decision will not (...)

The Brazilian Competition Authority approves investment agreement between market rivals to acquire stake in an intermediate logistics company (Louis Dreyfus Company / Amaggi Exportação e Importação / Sartco / Cargill Agrícola / Dalablog Participações)
Brazilian Administrative Council for Economic Defense (CADE) (Brasilia)
CADE approves firms’ investment agreement to acquire stake in Carguero and Green Net* The Tribunal dismissed a third-party appeal and decided to maintain the opinion of the Office of the Superintendent General to clear the transaction On 23 February, the Administrative Council for Economic (...)

The Canadian Federal Court of Appeal confirms that the Competition Tribunal has the power to temporarily block mergers (Secure / Tervita)
Canadian Competition Bureau (Gatineau)
Federal Court of Appeal confirms that the Competition Tribunal has the power to temporarily block mergers* Court grants Commissioner’s appeal following Tribunal decision which concluded the contrary The Commissioner of Competition welcomes a recent ruling from the Federal Court of Appeal (...)

The Canadian Federal Court rules en banc that the Competition Authority is able to seek a temporary pause on a merger whilst the interim pause is debated in court (Secure / Tevita)
Fasken Martineau (Toronto)
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Fasken Martineau (Toronto)
Canada’s Competition Tribunal has jurisdiction to grant “interim interim” relief in the contested merger context* As discussed in our prior blog post titled “Competition Tribunal Dismisses Request for Interim Interim Order”, the Competition Tribunal (the “Tribunal”) previously found that it (...)

The French Administrative Supreme Court determines that the development of a joint venture controlled by three national television networks does not infringe competition law (Illiald / Free / Molotov / France Télévisions / Métropole Télévision / Télévision Française / SALTO)
EDHEC (Lille)
Summary On appeal of a decision by the Autorité de la concurrence, the Conseil d’Etat decides that SALTO, a French video streaming developed by several TV actors in France, does not infringe competition law Facts The French TV companies France Télévisions, Métropole Télévision (M6) and (...)

The US DoJ blocks the merger between two major international book publishers (Penguin Random House / Simon & Schuster)
Constantine Cannon (New York)
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Constantine Cannon (New York)
Will the Next Chapter in DOJ’s Showdown With Book Publishers Rewrite the Book on Antitrust Merger Enforcement?* Federal antitrust enforcers hope to write a new chapter on merger enforcement this year as they face off against leading publishers. One of the major antitrust developments last (...)

The EU Commission refers the merger of two toy stores to the French Competition Authority for evaluation (Maxi Toys / Prenatal Retail / Fijace)
French Competition Authority (Paris)
The European Commission refers to the Autorité de la concurrence the examination of Maxi Toys stores in France takeover by Prenatal alongside Fijace* On 26 October 2021, the European Commission referred to the Autorité de la concurrence the examination of Maxi Toys stores in France takeover (...)

The EU General Court dismisses actions against two of the Commission’s decisions authorizing mergers in the market for passenger air travel (Polskie Linie Lotnicze / easyJet / Lufthansa / Air Berlin)
General Court of the European Union (Luxembourg)
The General Court dismisses the actions of Polskie Linie Lotnicze ‘LOT’ against the Commission decisions authorising the mergers concerning the acquisition by easyJet and Lufthansa, respectively, of certain assets of the Air Berlin group* Faced with a persistent deterioration of its (...)

The German Higher Regional Court of Düsseldorf overturns the Competition Authority’s decision to clear a joint venture between a telecommunications company and a regional utility provider (Telekom Deutschland / EWE)
Herbert Smith Freehills (Düsseldorf)
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Herbert Smith Freehills (Düsseldorf)
Last week the Higher Regional Court of Düsseldorf overturned a decision adopted by the German Federal Cartel Office (FCO) clearing a JV between Telekom Deutschland and EWE, a regional utility company. The JV partners were looking to cooperate in the development of fibre-optic networks in parts (...)

The EU General Court dismisses a French telecommunications company’s action against the Commission’s decision to impose two fines totalling €124.5M in connection to its acquisition of a Portuguese competitor (Altice / PT Portugal)
General Court of the European Union (Luxembourg)
The General Court dismisses Altice Europe’s action against the Commission decision imposing two fines totalling €124.5 million in connection with the acquisition of PT Portugal* However, it orders the amount of the fine relating to the breach of the obligation to notify the concentration to (...)

The Australian Competition Authority proposes radical changes to the way mergers are regulated in Australia recommending the introduction of a mandatory and suspensory merger review process
Australian Competition and Consumer Commission (Sydney)
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Herbert Smith Freehills (Sydney)
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Herbert Smith Freehills (Melbourne)
The Australian Competition and Consumer Commission (ACCC) has proposed radical changes to the way mergers are regulated in Australia recommending the introduction of a mandatory and suspensory merger review process with limited merits review by the Australian Competition Tribunal. Key (...)

The Norwegian Competition Tribunal upholds the Competition Authority’s decision to block a merger between two media companies (Schibsted / Nettbil)
Norwegian Competition Authority (Bergen)
Competition Tribunal upholds decision to block Schibsted’s acquisition of Nettbil* The Competition Tribunal agrees with the Norwegian Competition Authority that Schibsted’s acquisition of Nettbil should be prohibited. Schibsted ASA and Nettbil AS operate competing digital marketplaces for (...)

The UK Competition Appeal Tribunal hands down a judgment dismissing a software supplier’s application for review of the Competition Authority’s decision to prohibit a merger (Sabre / Farelogix)
Ashurst (London)
On 21 May 2021, the Competition Appeal Tribunal ("CAT") handed down a judgment dismissing Sabre’s application for review of the Competition and Markets Authority ("CMA") decision to prohibit the Sabre/Farelogix merger. Sabre had challenged the CMA’s jurisdiction to review the merger, which it (...)

The UK Competition Appeal Tribunal, in a merger case involving two companies providing technology solutions to the travel industry, confirms the Competition Authority’s broad discretion to review deals with limited UK nexus (Sabre / Farelogix)
Freshfields Bruckhaus Deringer (Silicon Valley)
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Freshfields Bruckhaus Deringer (London)
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Freshfields Bruckhaus Deringer (Brussels)
In a continuing trend of increased regulatory intervention in deals globally, the UK’s Competition Appeal Tribunal (Tribunal) has confirmed that the Competition and Markets Authority (CMA) has broad discretion to claim jurisdiction over mergers, even where one party has very limited and (...)

The UK Competition Appeal Tribunal releases a judgment confirming the Competition Authority’s decision to block the merger between two software suppliers (Sabre / Farelogix)
UK Competition & Markets Authority - CMA (London)
CMA welcomes Tribunal judgment in Sabre case* The CMA welcomes today’s Competition Appeal Tribunal judgment, dismissing Sabre’s challenge of the CMA’s decision to block its proposed acquisition of Farelogix. Photograph of an airplane in the sky. Today’s judgment endorses the Competition (...)

A major telecommunications company resolves to unwind a failed acquisition of a mass media and entertainment conglomerate, notwithstanding rulings greenlighting the merger at both District Court and Appeals Court level (AT&T / Time Warner)
USC Gould School of Law (Los Angeles)
This article has been nominated for the 2022 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. AT&T’s $102 billion acquisition of Time Warner in 2019 will go down in M&A history as an exceptionally illadvised transaction, resulting in the loss of (...)

The UK Competition Authority welcomes the Court of Appeal’s decision to dismiss a Big Tech company’s grounds of appeal regarding how companies engage with the Authority (Facebook / Giphy)
UK Competition & Markets Authority - CMA (London)
CMA welcomes Court judgment in Facebook and Giphy case* The CMA has today welcomed the Court of Appeal’s decision to dismiss all 4 of Facebook’s grounds of appeal in a key case on how companies engage with the CMA. The Court of Appeal criticised Facebook’s conduct, saying the “central (...)

The EU Commission accepts its first merger referral under Article 22 of the Merger Regulation where the transaction falls below the requisite thresholds (Illumina / Grail)
Van Bael & Bellis (Brussels)
On 23 March 2021, the European Commission (“Commission”) published Guidance outlining its new approach in accepting and encouraging referrals under Article 22 of the Merger Regulation of deals that fail to meet either the EU or Member State turnover thresholds but that nonetheless affect (...)

The French Administrative Supreme Court rejects an appeal by an employee representative body concerning a merger approval (Mondadori)
Addleshaw Goddard (Paris)
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Total Energies (Paris)
On 9 March 2021, the French Administrative Supreme Court (Conseil d’Etat) rejected an appeal by Mondadori’s social and economic committee ("SEC") in relation to the French Competition Authority’s ("FCA") decision to approve Reworld Media’s takeover of Mondadori France. The French (...)

The Dutch District Court of Rotterdam annuls the Competition Authority’s decision to conditionally approve the acquisition of a distributor of educational materials by a publisher and orders an assessment of the anticompetitive effects of potential product bundling by the merging parties (Iddink / Sanoma Learning)
Van Doorne (Amsterdam)
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Van Doorne (Amsterdam)
The District Court of Rotterdam has annulled a decision in which the Dutch Authority for Consumers and Markets (ACM) approved the acquisition of Iddink by Sanoma Learning. This is the second time in 12 months that an approval decision by the relevant Dutch authorities has been annulled by the (...)

The EU Commission refers the review of the merger between two sewage maintenance companies to the French Competition Authority (Veolia / Suez)
European Commission - DG COMP (Brussels)
The European Commission refers to the Autorité de la concurrence the review of the acquisition of Suez RV OSIS by SARP, a subsidiary of Veolia* On 5 February 2020, the European Commission referred the review of the takeover of Suez RV OSIS, a subsidiary of Suez, by SARP, a subsidiary of (...)

The EU Commission rejects gun jumping claims in a merger transaction between two companies in the water and waste management market (Veolia / Suez)
Schibsted (Oslo)
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White & Case (Paris)
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White & Case (Düsseldorf)
In the midst of the Homeric battle between Veolia and its takeover target, Suez, the European Commission rejects Suez’s gun jumping claim and provides further clarifications on the scope of the exemption to the standstill obligation in the case of two-step acquisitions encompassing a public (...)

The UK Competition Appeal Tribunal supports the Competition Authority’s approach to estimating the merger effects on consumers but finds that it did not gather enough information about the impact of the COVID-19 pandemic on the merger (JD Sports / Footasylum)
UK Competition & Markets Authority - CMA (London)
CMA considers next steps in JD Sports/Footasylum merger* The CMA is considering its next steps following today’s Competition Appeal Tribunal judgment in the JD Sports/Footasylum case. JD Sports had appealed the Competition and Market Authority’s (CMA) final decision to block its takeover (...)

The UK Competition Appeal Tribunal dismisses the Competition Authority’s decision and authorizes the acquisition of a company in the sports retailing sector in light of the COVID-19 pandemic (JD Sports / Footasylum)
Van Bael & Bellis (Brussels)
On 13 November 2020, the UK Competition Appeal Tribunal (“CAT”) upheld an appeal brought by JD Sports against the Competition and Markets Authority’s (“CMA”) decision to prohibit its already completed acquisition of rival retailer Footasylum. On 6 May 2020, the CMA had blocked the merger (...)

The UK Competition Appeal Tribunal dismisses a social media company’s appeal against an order of the Competition Authority preventing a merger (Facebook / Giphy)
Government Legal Department (London)
On 13 November 2020, the UK’s Competition Appeal Tribunal (“CAT”) dismissed Facebook’s appeal against an order by the UK’s Competition and Markets Authority (“CMA”) preventing Facebook from integrating with Giphy, a company it had acquired while the CMA conducted its investigation into the (...)

The UK Competition Appeal Tribunal upholds the Competition Authority’s suspension of a merger between a social media company and an online graphics database company pending an ongoing investigation (Facebook / Giphy)
UK Competition & Markets Authority - CMA (London)
CMA welcomes Tribunal judgment in Facebook and Giphy case* The CMA welcomes today’s Competition Appeal Tribunal judgment which dismissed all of Facebook’s grounds of appeal. The Competition and Markets Authority (CMA) is currently investigating Facebook’s purchase of Giphy, which completed (...)

The UK Competition Appeal Tribunal upholds the appeal brought by a company for a merger in the sports retail sector in light of the COVID-19 pandemic (JD Sports / Footasylum)
Ashurst (London)
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Ashurst (London)
On 13 November 2020, the UK Competition Appeal Tribunal ("CAT") published its judgment in relation to the merger of JD Sports and Footasylum. The merger was prohibited by the UK Competition and Markets Authority ("CMA") in May, but JD Sports appealed. The CAT partially upheld the appeal and (...)

The UK Competition Appeal Tribunal upholds the Competition Authority’s decision to prevent the acquisition of an online graphics database by a social media company (Facebook / Giphy)
Ashurst (London)
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Ashurst (London)
In a unanimous judgment, the Competition Appeal Tribunal ("CAT") dismissed Facebook’s application challenging the CMA’s refusal to grant certain derogations from an initial enforcement order ("IEO") imposed in connection with Facebook’s completed acquisition of GIPHY, Inc. WHAT YOU NEED TO (...)

The EU General Court provides useful jurisdictional clarifications for deals involving joint ventures acting as an acquirer (Cemex Croatia / HeidelbergCement / Schwenk)
European Commission - DG COMP (Brussels)
Jurisdictional issues in deals involving joint ventures – Review of the General Court judgment in Heidelberg Cement and Schwenk Zement (T-380/17)* The judgment provides useful jurisdictional clarifications for deals involving joint ventures (JVs) acting as an acquirer. The General Court (GC) (...)

The EU General Court clarifies the application of the merger regulation to acquisitions by joint ventures and other jointly controlled companies (Cemex Croatia / HeidelbergCement / Schwenk)
Unilever (Rotterdam)
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Willkie Farr & Gallagher (Paris)
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Willkie Farr & Gallagher (London)
On 5 October 2020, the General Court of the European Union (the “General Court”) confirmed the 2017 decision by the European Commission (the “Commission”) to prohibit the proposed acquisition by HeidelbergCement and Schwenk of Cemex Croatia (the “HeidelbergCement case”). In its judgment, the (...)

The EU General Court upholds the Commission’s decision to block a takeover in the construction sector (Cemex Croatia / HeidelbergCement / Schwenk)
ADNOC Group (Abu Dhabi)
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Ashurst (Brussels)
On 5 October 2020, the EU’s General Court ("GC") upheld the European Commission’s ("Commission") decision to block the takeover of Cemex Croatia by DDC thereby dismissing the case brought by DDC’s parent companies, HeidelbergCement and Schwenk Zement ("Schwenk") claiming, inter alia, that the (...)

The Czech Supreme Administrative Court rejects the moderation of a fine imposed for gun jumping in the energy sector (Armex Oil)
Skils (Prague)
On 14 September 2020, the Supreme Administrative Court (SAC) granted a cassation appeal lodged by the Czech Office for Protection of Competition (Office) against the previous judgment of the Regional Court in Brno of 5 June 2019 (Ref.No. 29 Af 96/2016) relating to the proceedings conducted by (...)

The Czech Supreme Administrative Court overturns a lower court’s decision to reduce a gun jumping fine to a disproportionate level (Armex Oil)
Bird & Bird (Prague)
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Dentons (Prague)
Supreme Administrative Court decides on clearly disproportionate fines for unauthorized acquisition. In 2013, the company ARMEX Oil acquired an ownership interest in the company TRANSCARGO without notifying the Competition Protection Office ("Office") and awaiting its approval. Two years (...)

The EU Court of Justice rules that certain anti-concentration limits set forth by the Italian legislation for the protection of media pluralism are incompatible with the competition law (Vivendi / Mediaset)
Portolano Cavallo (Milan)
Summary: The CJEU has established that the market concentration thresholds set forth by Article 43(11) of Legislative Decree No. 177/05, and based on the overall revenues of the so called “Integrated System of Communications,” are inadequate to detect or prevent the risk for pluralism and thus (...)

The EU Court of Justice rules that a restriction imposed by Italian law on acquisitions in the broadcasting and audiovisual sectors is contrary to EU Law (Vivendi / Mediaset)
Ashurst (Brussels)
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Ashurst (Milan)
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Ashurst (Brussels)
On 3 September 2020, the European Court of Justice ("ECJ") ruled that a restriction imposed by an Italian law on acquisitions in the broadcasting and audiovisual sectors is contrary to the fundamental EU law principle of the freedom of establishment enshrined in Article 49 of the Treaty on the (...)

The EU Court of Justice rules that the provision of Italian law preventing a media company from acquiring 28% of the capital in competitor as a measure of protecting pluralism of information is contrary to EU law (Vivendi / Mediaset)
European Court of Justice (Luxembourg)
The provision of Italian law preventing Vivendi from acquiring 28% of the capital in Mediaset is contrary to EU law* That provision constitutes a prohibited impediment to the right of establishment as it is not appropriate for achieving the objective of protecting pluralism of information. (...)

The US State of Delaware Chancery Court issues an opinion in litigation between two health-insurance giants over a failed merger and confirms that neither is entitled to damages (Anthem / Cigna)
Skadden, Arps, Slate, Meagher & Flom (New York)
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Skadden, Arps, Slate, Meagher & Flom (Washington)
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Skadden, Arps, Slate, Meagher & Flom (New York)
On August 31, 2020, the Delaware Chancery Court issued an opinion in litigation between Anthem and Cigna related to the contract in their terminated merger. In its sprawling 306-page opinion, the court detailed a “corporate soap opera” in which the parties’ “battle for power spanned multiple (...)

The German Higher Regional Court of Dusseldorf dismisses an appeal brought by two producers of hydrodynamic slide bearings against a decision of the Competition Authority prohibiting them to create a joint venture (Miba / Zollern)
Van Bael & Bellis (Brussels)
On 26 August 2020, the Higher Regional Court of Düsseldorf (“the Court”) dismissed as inadmissible an appeal by Miba and Zollern, two producers of hydrodynamic slide bearings, against a January 2019 decision of the German Federal Cartel Office (“FCO”) prohibiting them from creating a joint (...)

The US FTC issues a $3.5M fine on a retail fuel station operator and its affiliate for violation of a settlement agreement requiring the divesture of 10 retail gas stations (Alimentation Couche-Tard / CrossAmerica Partners)
McDermott Will & Emery (Washington)
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McDermott Will & Emery (Washington)
The US Federal Trade Commission (FTC) recently extracted a $3.5 million civil penalty from two companies involved in a gas station merger. The FTC asserts the companies violated their settlement agreement with the government, which required the divestment of 10 gas stations within 120 days (...)

The Rotterdam District Court annuls a ministerial merger licence for the acquisition of rival post operators granted on general interest grounds outweighing the expected restrictive effects on competition (Sandd / PostNL)
KPN (Amsterdam)
On 11 June 2020, the District Court of Rotterdam (‘District Court’) annulled the decision of the Minister of Economic Affairs & Climate (‘Minister’) to grant a licence for the acquisition of rival post operator Sandd by PostNL. This was the first time since the introduction of the Dutch (...)

The Rotterdam District Court annuls the authorisation of the acquisition of postal services providers on the basis that it would result in a monopoly on the Dutch postal delivery market (Sandd / PostNL)
European Court of Justice (Luxembourg)
On 11 June 2020, the Rotterdam District Court (the “Court”) annulled the authorisation of the acquisition of postal services provider Sandd by rival PostNL. The transaction had been authorised by the State Secretary for Economic Affairs and Climate Policy (the “State Secretary”) after (...)

The EU General Court annuls the Commission’s decision to block the proposed merger in the UK sector of the mobile telephony market (Telefónica UK / Hutchison 3G UK)
General Court of the European Union (Luxembourg)
The General Court annuls the Commission’s decision to block the proposed acquisition of Telefónica UK by Hutchison 3G UK in the sector of the mobile telephony market* On 11 May 2016, [1] the Commission adopted a decision in which it blocked, under the Merger Regulation, [2] the proposed (...)

The EU General Court annuls the Commission’s decision prohibiting an oligopolistic merger between two mobile network operators in the telecommunication sector on the basis that it did not result in the creation or strengthening of a dominant position (Telefónica UK / Hutchison 3G UK)
Herbert Smith Freehills (London)
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Herbert Smith Freehills (Brussels)
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Herbert Smith Freehills (London)
On 28 May 2020 the General Court handed down its ruling in CK Telecoms UK Investment Ltd v European Commission (Case T-399/16) in which it annulled the EU Commission’s decision which prohibited the proposed acquisition by CK Hutchison Holdings Ltd (Hutchison) of Telefónica Europe plc (O2). The (...)

The EU General Court annuls the Commission’s prohibition of a merger between two of the UK’s four mobile network operators after finding errors in the analysis of alleged anticompetitive effects whilst conducting its acquisition review (Telefónica UK / Hutchison 3G UK)
Baker Botts (Brussels)
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Baker Botts (Brussels)
Firm Thought Leadership In what is destined to rank as one of the most significant judicial knockbacks of the European Commission (“Commission”) in the area of merger control for many years, the EU’s General Court (“Court”) has annulled the decision by the Commission in 2016 to prohibit the (...)

The Italian Supreme Court reinstates remedies imposed by the Italian Competition Authority to mitigate the effects of the acquisition of certain assets of the digital terrestrial Pay-TV (Sky / R2)
Ashurst (Brussels)
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Ashurst (Milan)
On 28 May 2020, the Italian Administrative Supreme Court ("CoS") reinstated remedies imposed by the Italian Competition Authority ("ICA" or "Authority") to mitigate the effects of the acquisition by Sky Italia Holding S.p.A. ("Sky") of certain assets of the digital terrestrial Pay-TV owned by (...)

The EU General Court overturns the EU Commission’s prohibition of a mobile telecommunications merger (Telefónica UK / Hutchison 3G UK)
Cleary Gottlieb Steen & Hamilton (Brussels)
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Cleary Gottlieb Steen & Hamilton (Brussels)
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Cleary Gottlieb Steen & Hamilton (London)
In a landmark Judgment delivered on May 28, the General Court overturned the European Commission’s 2016 prohibition of the Three/O2 UK mobile telecommunications merger. The Judgment raises the bar for the Commission in respect of (1) the legal standard the Commission must meet; (2) the (...)

The EU General Court annuls the Commission’s decision prohibiting the acquisition of two telecommunication companies (Telefónica UK / Hutchison 3G UK)
Government Legal Department (London)
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Van Bael & Bellis (Brussels)
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Van Bael & Bellis (Brussels)
1. Summary On 28 May 2020, the EU General Court handed down a ruling annulling the European Commission’s (“Commission”) decision prohibiting the proposed acquisition of Telefónica UK (“O2”) by Hutchison 3G UK (“Three”). The ruling has potentially significant implications for mergers in the (...)

The EU General Court raises the Commission’s bar for mergers in concentrated markets (Telefónica UK / Hutchison 3G UK)
Cleary Gottlieb Steen & Hamilton (Brussels)
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Cleary Gottlieb Steen & Hamilton (Brussels)
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Cleary Gottlieb Steen & Hamilton (Brussels)
In a landmark Judgment delivered on May 28, the General Court overturned the European Commission’s 2016 prohibition of the Three/O2 UK mobile telecommunications merger. The Judgment raises the bar for the Commission in respect of (1) the legal standard the Commission must meet; (2) the (...)

The EU General Court annuls the Commission’s prohibition of the merger between two telecommunications companies and clarifies the application of the SIEC test to non-coordinated effects in oligopolistic markets (Hutchison 3G / Telefonica)
Zepos & Yannopoulos (Athens)
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Linklaters (London)
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Zepos & Yannopoulos (Athens)
On 28 May 2020, the EU General Court issued a ruling annulling the European Commission’s decision prohibiting the proposed acquisition of Telefónica UK by Hutchison 3G UK. The Commission had examined this transaction as a “four-to-three” merger and had blocked it in 2016, in line with its (...)

The EU General Court annuls the Commission’s decision prohibiting a merger between two telecommunication companies (Telefónica UK / Hutchison 3G UK)
European Commission - DG COMP (Brussels)
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Shearman & Sterling (Brussels)
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Shearman & Sterling (London)
Under the leadership of Margrethe Vestager, the European Commission has taken an increasing interventionist stand across all areas of antitrust enforcement, in particular in merger control. The EU’s General Court dealt that aggressive agenda a massive blow by annulling the first of her many (...)

The Slovenian Administrative Court annuls the Competition Authority’s merger prohibition decision and divestment order in sports programming industry (Sport Klub)
Rojs, Peljhan, Prelesnik & partnerji (Ljubljana)
On 4 September 2018 the Slovenian Competition Protection Agency (“CPA”) issued a merger control decision by which the CPA prohibited the acquisition of a broadcaster of several sport TV channels by United Group B.V. The CPA also ordered a divestment of sport TV channels. United Group B.V. (...)

The Full Court of the Australian Federal Court dismisses the Competition Authority’s appeal in its attempt to prohibit a merger and confirms the test to be applied when assessing whether a firm’s conduct will be likely to have the effect of substantially lessening competition (Pacific National / Aurizon)
Australian Competition and Consumer Commission (Sydney)
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Herbert Smith Freehills (Sydney)
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Herbert Smith Freehills (Melbourne)
The Full Federal Court has dismissed the ACCC’s appeal in respect of its case against Pacific National and Aurizon. In dismissing the ACCC’s appeal, the Full Federal Court confirmed the test to be applied when assessing whether a firm’s conduct will be likely to have the effect of (...)

The Full Court of the Australian Federal Court dismisses the Competition Authority’s appeal aimed at blocking the acquisition of a rail terminal by a dominant rail freight carrier on the East coast (Pacific National / Aurizon)
Australian Competition and Consumer Commission (Canberra)
Federal Court dismisses ACCC appeal on PN Aurizon case* The Full Court of the Federal Court has today delivered its judgment on the ACCC’s appeal in relation to proceedings brought to stop Pacific National’s acquisition of the Acacia Ridge Terminal in Brisbane by Aurizon (ASX: AZJ). The (...)

The UK Competition Appeal Tribunal rejects an appeal against the Competition Authority’s merger decision in the cleaning chemicals sector (Ecolab / Holchem)
Baker Botts (London)
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Baker Botts (Brussels)
On 21 April 2020, the Competition Appeals Tribunal (the “CAT”) handed down its judgment (the “Judgment”) rejecting the appeal of Ecolab Inc. (“Ecolab”), a global company incorporated in the US, against the CMA’s merger decision on Ecolab’s acquisition of The Holchem Group Ltd (“Holchem”), a (...)

The Australian Competition Authority decides not to appeal the Federal Court’s decision in a merger which declared that it would not have the effect, or likely effect, of substantially lessening competition in the supply of retail mobile services (TPG / Vodafone)
Bird & Bird (Sydney)
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Bird & Bird (Sydney)
The ACCC has decided not to appeal the Federal Court of Australia’s highly anticipated judgment in the TPG/Vodafone merger in which it declared that the proposed merger between the two parties would not have the effect, or likely effect, of substantially lessening competition in the supply of (...)

The EU Court of Justice dismisses the appeal made by a Norwegian seafood company against the Commission’s decision which fined the company for putting into effect its acquisition of a salmon producer before getting the approval (Marine Harvest)
ADNOC Group (Abu Dhabi)
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Ashurst (Brussels)
On 4 March 2020, the European Court of Justice ("ECJ") dismissed the appeal made by Norwegian seafood company Marine Harvest against a 2017 ruling of the General Court ("GC") confirming the European Commission ("Commission") 2014 decision fining Norwegian seafood company Marine Harvest for (...)

The EU Court of Justice dismisses the appeal by a seafood company against the Commission’s fine for failure to notify an acquisition (Marine Harvest)
Weil, Gotshal & Manges (Brussels)
CJEU Confirms Double Trouble for Gun Jumpers* On 4 March 2020, the European Court of Justice (“CJEU”) rendered its judgment in the Marine Harvest case. The CJEU dismissed Marine Harvest’s appeal against a European Commission (“Commission”) decision in which the Commission imposed two (...)

The EU Court of Justice upholds the Commission’s decision and fines a seafood company for gun jumping (Marine Harvest)
Zepos & Yannopoulos (Athens)
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Linklaters (London)
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Zepos & Yannopoulos (Athens)
On 4 March 2020 the Court of Justice of the EU delivered its judgement with which it dismissed Marine Harvest’s appeal against the Commission’s decision imposing two separate fines (EUR10 million each) for failure to notify a transaction under Article 4(1) EUMR and for implementing that (...)

The EU Court of Justice upholds a gun jumping fine on a seafood company (Marine Harvest)
Callol, Coca & Asociados (Madrid)
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Callol, Coca & Asociados (Madrid)
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Callol, Coca & Asociados (Madrid)
On 14 December 2012, Marine Harvest entered into a share purchase agreement under which it acquired a 48.5% stake in one of its competitors, Morpol. The transaction, which was not notified to the Commission, was completed on 18 December 2012. In 2013, Marine Harvest made a mandatory public (...)

The EU Court of Justice upholds the Commission’s fine against a fish farming and processing company for infringing merger control rules (Marine Harvest)
Hogan Lovells (London)
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Hogan Lovells (London)
Norwegian salmon farmer Marine Harvest has been unsuccessful in its appeal to the Court of Justice of the European Union (CJEU) regarding substantial and separate fines imposed on it by the European Commission for both failing to notify a merger and for ’jumping the gun’ in implementing the (...)

The Spanish Competition Authority opens a Phase II investigation into a proposed merger that would create the largest company in the national funeral services market (Santa Lucía / Funespaña)
Ecija & Asociados (Madrid)
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Bird & Bird (Madrid)
At the end of last year, a major Spanish insurance group -Santa Lucía- notified to the Spanish Competition authority (the "CNMC") a proposed merger whereby it would acquire the funeral businesses of Funespaña (a subsidiary of Mapfre, a direct competitor of Santa Lucía). This acquisition will (...)

The Finnish Market Court upholds the Competition Authority’s request to prohibit a proposed acquisition of a grocery wholesaler on the basis that it would become dominant in the market (Kesko / Heinon Tukku)
Van Bael & Bellis (Brussels)
On 17 February 2020, the Finnish Market Court (the “Court”) upheld the request of the Finnish Competition and Consumer Authority (the “KKV”) to prohibit Kesko’s proposed acquisition of grocery wholesaler Heinon Tukku. The Court’s judgment may be appealed before the Finnish Supreme (...)

The Finnish Market Court blocks for the first time a merger between two wholesalers in the grocery market (Kesko / Heinon Tukku)
Hannes Snellman (Helsinki)
On 17 February 2020, the Market Court prohibited a merger between Finnish grocery wholesalers, Kesko and Heinon Tukku. This was the first time a merger has been prohibited in Finland after merger control rules were introduced in 1998. Previous three prohibition proposals of the Finnish (...)

The Finnish Market Court upholds the Competition Authority’s decision to block a merger between grocery wholesalers, making it the first merger ever prohibited in the country (Kesko / Heinon Tukku)
Finnish Competition and Consumer Authority (Helsinki)
Kesko’s acquisition of Heinon Tukku blocked by the Finnish Market Court* The merger between Finnish grocery wholesalers, Kesko and Heinon Tukku, was prohibited by the Market Court on 17 February 2020. In accordance with the Finnish Competition and Consumer Authority’s (FCCA) proposal, the (...)

The US District Court for the Southern District of New York clears a merger between the top third and fourth wireless communications provider (State AGs / T-Mobile / Sprint)
US Federal Trade Commission (FTC) (New York)
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Weil, Gotshal & Manges (Washington)
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Weil, Gotshal & Manges (Washington)
T-Mobile’s Marathon to Acquire Sprint: Five Takeaways from the T-Mobile/Sprint Antitrust Litigation After almost two years of scrutiny by state and federal regulators and an ensuing court battle, T-Mobile US, Inc. (“T-Mobile”) is moving forward with its acquisition of Sprint Corporation (...)

The Australian Federal Court approves a merger between an incumbent and a potential entrant in the retail mobile market (TPG / Vodafone)
RBB Economics (Melbourne)
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RBB Economics (Melbourne)
1.Introduction On 13 February 2020, the Federal Court of Australia (Federal Court) declared that the proposed merger between Vodafone Hutchison Australia (Vodafone) and TPG Telecom (TPG) (Vodafone / TPG) was unlikely to lead to a significant lessening of competition in the Australian retail (...)

The Australian Federal Court declares that a proposed merger in the retail mobile market would not substantially lessen competition (TPG / Vodafone)
Australian Competition and Consumer Commission (Sydney)
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Herbert Smith Freehills (Sydney)
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Herbert Smith Freehills (Sydney)
On 13 February 2020, the Federal Court of Australia declared that the proposed merger between TPG Telecom Limited (TPG) and Vodafone Hutchison Australia (Vodafone) would not have the likely effect of substantially lessening competition in the retail mobile market, and therefore would not (...)

The Belgian Competition Authority approves a request from a major cinema complex operator to lift one of the merger commitments previously imposed (Kinepolis)
Allen & Overy (Brussels)
On 11 February 2020, the Belgian Competition Authority (BCA) approved a request from the Kinepolis group, a major cinema complex operator, to lift one of the merger commitments which had been imposed on the group in the 90s. Since the creation of the Kinepolis group in 1997 following the (...)

The Lithuanian Supreme Administrative Court upholds the Competition Authority’s €947K gun jumping fine imposed on one of the largest national agricultural processing companies (Kauno Grūdai)
Van Bael & Bellis (Brussels)
On 17 January 2020, the Lithuanian Competition Council, Konkurencijos taryba, published a decision of the Lithuanian Supreme Administrative Court upholding a € 947,700 gun jumping fine imposed on Kauno Grūdai, one of Lithuania’s largest agricultural processing companies. Kauno Grūdai (...)

The UK Competition Appeal Tribunal confirms a deferential standard for the Competition Authority in its merger prohibitions (Tobii / Smartbox)
Baker McKenzie (Brussels)
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Skadden, Arps, Slate, Meagher & Flom (Brussels)
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Skadden, Arps, Slate, Meagher & Flom (Brussels)
A recent decision by the Competition Appeal Tribunal (CAT), Tobii AB (publ) v. Competition and Markets Authority, confirms a deferential standard for the U.K. Competition and Markets Authority (CMA) in its merger prohibitions. The CMA is widely regarded as a thought leader among merger (...)

The UK Competition Appeal Tribunal annuls the Competition Authority’s decision for failing to prove that the acquisition would result in vertical input foreclosure effects in the communication technology market (Tobii / Smartbox)
Bird & Bird (London)
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Bird & Bird (London)
In September 2019, the Competition Markets Authority ("CMA") found that Tobii’s acquisition of Smartbox resulted in or may result in a substantial lessening of competition in the UK assistive communication technology market and ordered Tobii to divest Smartbox. Tobii consequently appealed the (...)

The Dutch Competition Authority identifies anticompetitive risks in a port towage joint venture which the companies later decided to dissolve (Svitzer / Iskes)
Netherlands Authority for Consumers & Markets- ACM (The Hague)
JOINT VENTURE PORT TOWAGE AMSTERDAM TO BE DISSOLVED, FOLLOWING AN INVESTIGATION OF ACM* Joint ventures cannot be used for circumventing competition rules. The Netherlands Authority for Consumers and Markets (ACM) investigated the joint venture Port Towage Amsterdam (PTA). This joint venture (...)

The French State Council upholds the Competition Authority’s decision to fine a merged company for non-compliance with its merger commitments (Fnac / Darty)
French Competition Authority (Paris)
The Conseil d’Etat confirms the decision regarding the fine handed down to Fnac Darty for non-compliance with its commitments* In a judgment dated 7 November 2019, the Conseil d’Etat confirmed the whole of the decision 18-D-16 by which the Autorité fined Fnac Darty €20 million for failing (...)

The French State Council upholds a €20M fine against a retailer specialising in cultural and electronic products for breach of merger commitments (Fnac / Darty)
Addleshaw Goddard (Paris)
In a decision of 7 November 2019, the French State Council ("Conseil d’Etat") dismissed the appeal brought by Fnac Darty, a retailer specialising in cultural and electronic products, against a fine imposed by the French Competition Authority (the "FCA") for failure to comply with its (...)

The US FTC finds a consummated merger between two sellers of prosthetic knees anticompetitive and orders assets to be divested (Otto Bock / Freedom)
Davis Polk (New York)
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Davis Polk (New York)
This article has been nominated for the 2020 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. On November 6, 2019, the Federal Trade Commission unanimously found that the consummated merger of two sellers of prosthetic knees violated United States (...)

The US FTC confirms the acquisition of a rival lessens competition in the market for microprocessor-driven prosthetic knees (Otto Bock / Freedom)
Cadwalader Wickersham & Taft (New York)
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Cadwalader Wickersham & Taft (Charlotte)
BUYER BEWARE: FTC ORDERS UNWINDING OF A CONSUMMATED TRANSACTION* What happened? On November 6, 2019, the Federal Trade Commission (“FTC”) voted 5-0 to uphold Administrative Law Judge D. Michael Chappell’s initial decision that Otto Bock HealthCare GmbH’s (“Otto Bock”) acquisition of rival (...)

The US FTC orders the unwinding of a merger that was not HSR-reportable between two companies supplying prosthetics (Otto Bock / Freedom)
Orrick, Herrington & Sutcliffe (Washington)
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Orrick, Herrington & Sutcliffe (Washington)
The HSR Act requires that parties to certain transactions submit a premerger notification filing to the Department of Justice Antitrust Division (DOJ) and Federal Trade Commission (FTC), and then observe a waiting period before closing. Any transaction valued in excess of the HSR threshold – (...)

Judicial review of merger decisions: An overview of EU and national case law
Cleary Gottlieb Steen & Hamilton (London)
I came to Brussels to practise competition law a week after the EU Merger Regulation (the “EUMR”) [1] entered into force in 1990 and can well remember the antitrust community’s sense of expectation, trepidation, and excitement. Expectation because of the long period of gestation that followed (...)

The Irish Competition Authority clears, subject to a divestment remedy, an acquisition between two companies in the rental and maintenance of flat linen to customers in the healthcare and hospitality sectors (Berendsen / Kings Laundry)
Trinity College Dublin (Dublin)
Introduction 1. On 8 July 2019 the Competition and Consumer Protection Commission (CCPC), Ireland’s competition agency, cleared the acquisition by Berendsen Ireland Limited (Berendsen), ultimately controlled by Elis S. A. (Elis), of Kings Laundry Limited (Kings Laundry), subject to a (...)

The Australian Competition Authority appeals the Federal Court’s dismissal of its fine against 2 national freight companies’ agreements on their intermodal businesses (Pacific National / Aurizon)
Australian Competition and Consumer Commission (Sydney)
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Jones Day (Melbourne)
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Herbert Smith Freehills (Sydney)
On 27 June 2019, the ACCC announced that it has lodged an appeal to the Full Federal Court against the Federal Court’s decision. The ACCC stated that its appeal will focus on the ability of courts to accept undertakings given the ACCC’s concerns about the ability of access undertakings to (...)

The US Court of Appeals for the Eighth Circuit upholds an injunction against a proposed acquisition of a hospital on the grounds that it would lead to near-monopolisation in four different markets (Sanford Health / Sanford Bismarck / Mid Dakota Clinic)
Hogan Lovells (Washington)
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Jones Day (Washington)
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Jones Day (Washington)
In a decision that extends the FTC’s winning streak in the courts of appeals in healthcare provider merger cases, the Eighth Circuit affirmed the Federal Trade Commission’s ("FTC") bid to enjoin Sanford Health’s acquisition of Mid Dakota Clinic ("MDC"). This decision follows almost three years (...)

The Ankara 9th Administrative Court orders a stay of execution on a port acquisition after the Competition Authority’s conditional clearance with behavioural remedies (Kumport)
ELIG Gürkaynak Attorneys-at-Law (Istanbul)
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Kia (Frankfurt)
Background Limar Liman ve Gemi İşletmeleri A.Ş. (“Limar”), which is controlled by Arkas Holding A.Ş. (“Arkas”) notified to the Turkish Competition Authority (the “Authority”) its acquisition of the sole control over Mardaş Marmara Deniz İşletmeciliği A.Ş. (“Mardaş” or the “Target”) operating (...)

The US Court of Appeals for the DC Circuit holds that the DoJ failed to show that the District Court erred in denying the government’s request for a permanent injunction is blocking a merger (AT&T / Time Warner)
Paul Weiss (New York)
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Paul Weiss (Washington)
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US Department of Justice (Washington)
This article has been nominated for the 2020 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. On February 26, 2019, the United States Court of Appeals for the District of Columbia Circuit held that the U.S. Department of Justice (DOJ) failed to show (...)

The US Court of Appeals for the DC Circuit upholds the District Court’s decision and rejects the DoJ’s efforts to block a merger between two big media companies (AT&T / Time Warner)
Hogan Lovells (Washington)
On 26 February 2019 AT&T won its appeal at the U.S. Court of Appeals for the District of Columbia Circuit when the district court’s decision denying the government’s attempt to block AT&T from acquiring Time Warner Inc. was upheld. This ends a lengthy antitrust saga that began with (...)

The US Court of Appeals for the DC Circuit finds that the government has not proved that a merger between video distribution companies would substantially lessen competition or tend to create a monopoly (AT&T / Time Warner)
Wolters Kluwer (Riverwoods)
Justice Department Unable to Overturn Decision Allowing AT&T Merger with Time Warner* The U.S. Court of Appeals in Washington, D.C. last week concluded that the government failed to prove that the combination of AT&T Inc. and Time Warner Inc. would violate Sec. 7 of the Clayton Act. (...)

The US Court of Appeals for the DC Circuit upholds the District Court decision finding a merger in the video distribution sector unlikely to harm competition (AT&T / Time Warner)
McDermott Will & Emery (Washington)
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McDermott Will & Emery (Washington)
“[T]here is no need to opine on the proper legal standards for evaluating vertical mergers because, on appeal, neither party challenges the legal standards the district court applied.” —U.S. Circuit Judge Judith W. Rogers, United States v. AT&T Inc. Antitrust practitioners and business (...)

The Australian Federal Court orders an undertaking to pay $1.05M for cartel conduct relating to its asset sale agreement (Cryosite / Cell Care)
Saudi Aramco (Dhahran)
GUN-JUMPING IN VOLUNTARY MERGER REGIMES: THE RISKS KEEPING GLOBAL TRANSACTIONS IN SUSPENSE* Much has been written of the heightened risk of gun-jumping enforcement by competition regulators overseeing mandatory suspensory merger regimes. This article will examine why merger parties and (...)

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 (...)

The EU Court of Justice rules the Commission violated the rights of the 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 (...)

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)
This article has been nominated for the 2020 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. 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 (...)

The EU Court of Justice upholds the General Court’s ruling 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)
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 (...)