Merger (withdrawal)

Institution Definition

"A concentration ceases to exist and the Merger Regulation ceases to be applicable if the undertakings concerned abandon the concentration. In this respect, the revised Merger Regulation 139/2004 introduced a new provision related to the closure of procedures concerning the control of concentrations without a final decision after the Commission has initiated proceedings under Article 6(1)(c), first sentence. That sentence reads as follows: ‘Without prejudice to Article 9, such proceedings shall be closed by means of a decision as provided for in Article 8(1) to (4), unless the undertakings concerned have demonstrated to the satisfaction of the Commission that they have abandoned the concentration’. Prior to the initiation of proceedings, such requirements do not apply. As a general principle, the requirements for the proof of the abandonment must correspond in terms of legal form, intensity etc. to the initial act that was considered sufficient to make the concentration notifiable. In case the parties proceed from that initial act to a strengthening of their contractual links during the procedure, for example by concluding a binding agreement after the transaction was notified on the basis of a good faith intention, the requirements for the proof of the abandonment must correspond also to the nature of the latest act. In line with this principle, in case of implementation of the concentration prior to a Commission decision, the re-establishment of the status quo ante has to be shown. The mere withdrawal of the notification is not considered as sufficient proof that the concentration has been abandoned in the sense of Article 6(1)(c). Likewise, minor modifications of a concentration which do not affect the change in control or the quality of that change, cannot be considered as an abandonment of the original concentration.

  • Binding agreement: proof of the legally binding cancellation of the agreement in the form envisaged by the initial agreement (i.e. usually a document signed by all the parties) will be required. Expressions of intention to cancel the agreement or not to implement the notified concentration, as well as unilateral declarations by (one of) the parties will not be considered sufficient.
  • Good faith intention to conclude an agreement: In case of a letter of intent or memorandum of understanding reflecting such good faith intention, documents proving that this basis for the good faith intention has been cancelled will be required. As for possible other forms that indicated the good faith intention, the abandonment must reverse this good faith intention and correspond in terms of form and intensity to the initial expression of intent.
  • Public announcement of a public bid or of the intention to make a public bid: a public announcement terminating the bidding procedure or renouncing to the intention to make a public bid will be required. The format and public reach of this announcement must be comparable to the initial announcement.
  • Implemented concentrations: In case the concentration has been implemented prior to a Commission decision, the parties will be required to show that the situation prevailing before the implementation of the concentration has been re-established.

It is for the parties to submit the necessary documentation to meet these requirements in due time." Commission Consolidated Jurisdictional Notice under Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings

Case Comments

Hong Kong Competition Commission The Hong Kong Competition Authority closes the investigation of a proposed joint business agreement between two airlines following the parties’ abandonment of the deal (Cathay Pacific Airways Limited / Malaysia Airlines Berhad)

Competition Commission concludes investigation into proposed Joint Business Agreement between two major airlines* The Competition Commission (“Commission”) has decided to close the investigation into a proposed joint business agreement between two airlines, namely Cathay Pacific Airways (...)

French Competition Authority The French Competition Authority announces the withdrawal of two agriculture companies’ plan to create a joint venture in the fattened duck sector (Euralis / Maïsadour)

Agrifood: The Autorité de la concurrence takes note of the decision taken by the Euralis and Maïsadour groups to withdraw their plans to create a joint venture in the fattened duck sector* Background The Autorité notes the withdrawal announced by Euralis and Maïsadour of their plan to (...)

US Federal Trade Commission The US FTC issues a statement regarding the termination of an attempted acquisition of a reproductive health business of a company active in healthcare industry (CooperCompanies / Cook Medical)

Statement Regarding Termination of CooperCompanies’ Attempted Acquisition of Cook Medical’s Reproductive Health Business* The Federal Trade Commission has learned that the Cooper Companies Inc. has terminated its $875 million acquisition of Cook Medical Holdings, LLC’s reproductive health (...)

Gabrielle Kohlmeier, Jennifer E. Mellott, Meghan Rissmiller Mergers in the telecommunications sector: An overview of EU and US case law

Since the last publication in 2012, the world has changed in innumerable ways—and with it, every corner of the telecom sector. Geopolitical changes have brought an onslaught of supply chain, national security, and foreign policy concerns—for government, industry, consumers, everyone. “Unexpected”, “unimaginable”, and “unprecedented’ became routine descriptors for world shifting events, from Brexit in 2016, Covid-19 shutting down much of the world in 2020, to increasing tensions between China and certain Western countries, the Russian war with Ukraine, and beyond. Technological changes abounded, from 4G to 5G technology development and deployment, semiconductor advances, ORAN, artificial intelligence use cases for network optimization and beyond. Changes also came in the form of new industry participants and partnerships and changes in competitive forces and dynamics. In a short period of time, competition has emerged from traditional partners to established companies in the telecommunications space and from competitors in adjacent areas, such as tech companies and hardware or equipment suppliers. These changes have certainly changed the calculus for companies in the telecom space considering mergers and acquisitions. The substantive legal approaches, by contrast, may be generally less dramatically affected with some key exceptions in the United States in particular where the enforcers are willing to risk a loss in court in an attempt to extend the law to fit their view of how the substantive law should be interpreted. This foreword starts with developments in Europe, continues with our analysis of the same in the US, and finishes with our outlook for the future. In short, the last decade has been a whirlwind, and we expect changing technology and new competitive dynamics to keep things interesting going forward.

Belgian Competition Authority The Belgian Competition Authority confirms the termination of a merger control investigation following withdrawal of the plans (What’s Cooking? / Imperial Meat Products)

Ter Beke/CFG: the Belgian Competition Authority confirms the termination of the merger control investigation following the decision of What’s Cooking? (formerly Ter Beke) to abandon its proposed acquisition of Imperial Meat Products* The Belgian Competition Authority (“BCA”) takes note of (...)

US Federal Trade Commission The US FTC welcomes news that two medical device manufacturers have abandoned their proposed merger following investigations by multiple National Competition Authorities (Boston Scientific / M.I. Tech Co.)

Statement Regarding the Termination of Boston Scientific Corporation’s Attempted Acquisition of a Majority Stake in M.I. Tech Co., Ltd.* In response to the announcement that Boston Scientific Corporation and non-vascular stent manufacturer M.I. Tech Co., Ltd. have terminated their $230 (...)

Martina Castrén, Marika Harjula The Finnish Competition Authority identifies competition concerns in a proposed merger in the telecommunications network design, construction and maintenance market, leading to the abandonment of the deal by the parties (Enersense / Voimatel)

Prohibition decisions and withdrawals of deals have traditionally been rare in Finnish merger control, as the Finnish Competition and Consumer Authority (“FCCA”) and merging parties usually find remedial solutions in cases raising competition concerns. However, in 2020 the Market Court (...)

UK Competition Authority The UK Competition Authority cancels a phase 2 investigation into a proposed joint venture in the poultry feed industry following the abandonment of the deal by the merging parties (ForFarmers / 2Agriculture)

Poultry feed deal abandoned during CMA’s Phase 2 investigation* ForFarmers and 2Agriculture (a subsidiary company of Boparan) have abandoned their proposed joint venture. The Competition and Markets Authority (CMA) has therefore today confirmed that it will be cancelling its Phase 2 merger (...)

US Department of Justice Antitrust Division The US DoJ announces that two steel manufacturers are abandoning their proposed merger following an investigation which revealed competition concerns (Benteler Steel / Tenaris)

Benteler Steel & Tube Manufacturing Corp. Abandons Merger with Tenaris, S.A. After Justice Department Investigation* Proposed Acquisition Would Have Further Entrenched Tenaris’s Dominance in the Sale of Seamless Steel Pipe to Oil & Gas Companies in the United States Tenaris, S.A. (...)

Christopher Hutton, Mez Azizi, Matt Giles, Angus Coulter, Alice Wallace-Wright The UK Competition Authority unwinds merger between the two largest suppliers of "ready to bake" products to national grocery retailers (Cerelia / Jus-Rol)

The CMA has concluded that a merger between the two largest suppliers of ready to bake products to UK grocery retailers should be unwound, highlighting the risks of choosing to complete mergers without first receiving CMA clearance. On 20 January 2023, the UK Competition and Markets (...)

European Commission The EU Commission publishes a statement by Executive Vice-President Vestager on the decision by two wood panel suppliers to abandon their merger (Kronospan / Pfleiderer)

Mergers: Statement by Executive Vice-President Vestager on the decision by Kronospan and Pfleiderer to abandon their deal* The European Commission takes note of Kronospan’s and Pfleiderer’s decision to terminate their agreement according to which Kronospan intended to acquire sole control (...)

French Competition Authority The French Competition Authority takes note of a decision by a telecommunications company to withdraw its planned acquisition for sole control over a media company (Bouygues / Métropole Télévision group)

TF1/M6: The Autorité de la concurrence takes note of the decision to withdraw its planned acquisition* The Autorité de la concurrence (hereinafter the "Autorité") takes note of the announcement made today by Bouygues, to withdraw its plan to acquire exclusive control of the Métropole (...)

Articles

Christopher Kerse, John Cook EC Merger Control (ed.5)

This section selects books on themes related to competition laws and economics. This compilation does not attempt to be exhaustive but rather a survey of themes important in the area. The survey usually covers publication over the last three months after publication of the latest issue of (...)

Events

Books

Paulo Burnier da Silveira, Pamela Sittenfeld Merger Control in Latin America

Following significant reforms over the last 20 years, merger control regimes in Latin America now constitute around 20% of merger regimes worldwide. In regard to global transactions that may trigger the notification thresholds in many of these jurisdictions, it became necessary that an (...)

Chapters

Merger Control in Latin America - A Jurisdictional Guide BOLIVIA

BOLIVIA Paula Bauer * Diego Rojas ** (C.R.  &  F. Rojas Abogados) Abstract The Bolivian Constitution dated 7 February 2009 provides the legal framework for competition, prohibition of monopolies and private oligopolies, and any kind of association or agreement between national or foreign (...)
Merger Control in Latin America - A Jurisdictional Guide VENEZUELA

VENEZUELA Alejandro Gallotti * (LE ĜA) Abstract Mergers and acquisitions in Venezuela are formally regulated by the typical parameters of “free competition” through the Antitrust Law. However, the Venezuelan economy does not operate in practice within these principles, as a series of law (...)
Merger Control in Latin America - A Jurisdictional Guide URUGUAY

URUGUAY Luciana Macedo * Natalia Jul ** (Uruguay Competition Commission) Abstract Uruguay's mergers control regime has recently been modified. The reform of Act No 18.159, by Act No 19.833 was approved on September 2019. The rules on the substantive analysis of mergers and acquisitions have (...)
Merger Control in Latin America - A Jurisdictional Guide PARAGUAY

PARAGUAY Cynthia Andino * (Independent consultant on competition and commerce) Abstract The National Constitution of Paraguay, in force since 1992, establishes competition as part of its legal framework. Later, the Competition Defence Act was enacted on 2013 (Law No 4956/2013) and its Rules on (...)
Merger Control in Latin America - A Jurisdictional Guide PANAMA

PANAMA Jorge Molina Mendoza * (Fabrega Molino) Abstract Despite the fact that Panama enacted its first antitrust laws in 1966, the protection of commercial competition has been anticipated, constitutionally, since at least 1946. Since then, the power to determine the legality of restrictive (...)
Merger Control in Latin America - A Jurisdictional Guide NICARAGUA

NICARAGUA Ernesto Rizo Pallais * Favio Batres P ** (BLP) Abstract Nicaragua has been developing a merger control system since 2006, when the Promotion of Competition Law was enacted (Law 601), establishing fundamental principles on the protection of competition, market access and consumer (...)
Merger Control in Latin America - A Jurisdictional Guide HONDURAS

HONDURAS Marvin Francisco Discua Singh * (Commission for the Defence and Promotion of Competition) Abstract In Honduras, the control of mergers began with the Competition Law. This has as its foundation the constitutional rule prohibiting monopolies and other anticompetitive conducts. The Law (...)
Merger Control in Latin America - A Jurisdictional Guide COLOMBIA

COLOMBIA Pablo Márquez * (Márquez Barrera Castañeda Ramírez) Abstract This paper provides a general overview of Colombian law with respect to merger control and economic integrations, including its institutional set-up, applicable law and guidance, as well as the basic foundations used by the (...)
Mario Ybar Merger Control in Latin America - A Jurisdictional Guide CHILE

CHILE Mario Ybar * (Garrigues) Abstract Chile's merger control regime has recently been modified. The reform of Decree-Law No 211 of 1973 (Antitrust Law or DL 211) by Law No 20.945 was approved on September The reform established a mandatory notification system for certain transactions which (...)
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