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Pierre Régibeau (DG COMP): Chief Economist – Priorities and cases in times of upheavalYour search returned 207 results Failing firm defence
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A conversation with Cristina Caffarra, Head of European Competition, Charles River Associates, London/Brussels. The big “Zeitgeist” discussion when you started off as chief economist was—and continues to be—about antitrust enforcement falling short in its ability to deal with digital platforms in (...)
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The failing firm defence in the age of COVID-19As COVID-19 continues to cause economic upheaval, undermine established business models, and jeopardise the long-term viability of important sectors of the economy, an increasing number of transactions may involve firms in severe financial difficulty. This may in turn increase the number of (...) -
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Failing firm defence – a tool in crisis?The failing firm defence, although a well-established principle of EU and numerous national merger control rules worldwide, is only very rarely successful because of the strict interpretation and high evidentiary burden imposed by competition authorities. The current Covid-19 crisis has plunged (...) -
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The UK Competition Authority clears a Big tech’s 16% investment in an online food delivery company after finding that it will not substantially lessen competition (Amazon / Deliveroo)CMA clears Amazon’s 16% investment in Deliveroo* Following an in-depth investigation, the CMA has today cleared Amazon’s 16% investment in Deliveroo after finding that it will not substantially lessen competition. The Competition and Markets Authority (CMA) completed an initial ‘Phase 1’ (...) -
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The UK Competition Authority clears at phase II an acquisition of a minority shareholding and certain rights in a food delivery company in its first application of “failing firm” defence (Amazon / Deliveroo)On 4 August 2020 the CMA cleared Amazon’s proposed minority investment in Deliveroo. Having previously been concerned that the investment could damage competition by discouraging Amazon from re-entering restaurant food delivery in the UK and altering its competitive incentives in respect of (...) -
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The Austrian Competition Authority publishes position paper on the macroeconomic effects of "shutdown mergers" in the context of the COVID-19 crisisAFCA publishes position paper on the Macroeconomic Effects of Mergers in the Context of the COVID-19 Crisis - "Shutdown Mergers"* The position paper aims to facilitate notifications of Shutdown Mergers. The COVID-19 pandemic and the restrictions put in place to deal with it have triggered a (...) -
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Security of Supply Chains: How to address it in Covid-19 and beyond?Webinar of the "#NewAntitrust" Webinar Series organised by Concurrences, in partnership with Arnold & Porter and Avisa Partners, with Paul Csiszar (Director, Markets and cases IV: Basic industries, Manufacturing and Agriculture, DG COMP), Pascal Belmin (Head of EU regulatory affairs, (...) -
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Webinar #8: Failing Firm Defense: A U.S. Point of ViewWebinar of the "#NewAntitrust" Webinar Series organized by Concurrences with Melissa Hill (Deputy Assistant Director, Mergers 4, FTC), Katharine O’Connor (Partner, McDermott Will & Emery), and Dov Rothman (Managing Principal, Analysis (...) -
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The OECD issues note on competition issues relating to merger control in the time of COVID-19One of the many consequences of the COVID-19 crisis is the risk that many firms will find themselves in financial distress and forced to exit the market or merge. This note focuses on competition issues relating to merger control. It serves as background material and raises issues for (...) -
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WEBINAR #6 Industrial Policy and Competition Policy in the post-Covid contextIndustrial policy Webinar of the "#NewAntitrust" Series organised by Concurrences with Philippe Aghion (Professor, Collège de France - London School of Economics), Emmanuel Combe (Vice President, Autorité de la concurrence - Professor, Paris I Panthéon-Sorbonne - SKEMA Business School), Frédéric (...) -
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WEBINAR #5 Failing firm defence: A new era for mergers?Failing Firm Defence Webinar of the "#NewAntitrust Webinar Series" organised by Concurrences with Paul Csiszár (Director of Basic industries, Manufacturing and Agriculture DG COMP), Antoine Chapsal (Partner, Analysis Group), Axel Gutermuth (Partner, Arnold & Porter) and Jonas Koponen (...) -
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Competition law and health crisisThe unexpected shock provoked by the Covid-19 crisis and the measures taken to limit the spread of the pandemic have affected the functioning of many markets. Throughout the world, competition authorities which, in the last decade, had been enforcing their laws in the context of steady economic (...) -
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Mergers & COVID-19: The impact on EU and national merger controlWhile some businesses may choose to delay transactions in light of Covid-19, many transactions will clearly continue and some of these will need to be completed with some urgency, in particular in cases of financial distress. Merger control regimes are still in operation, although there have (...) -
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The UK Competition Authority clarifies its general approach to assessing mergers and its specific approach to assessing "failing firm" claims during the COVID-19 pandemicCOVID-19: CMA approach to merger assessments* The CMA has today provided more detail on its general approach to assessing mergers during the Coronavirus (COVID-19) pandemic. Following its statement about working practices issued on 18 March, the Competition and Markets Authority (CMA) has set (...) -
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The UK Competition Authority warns that it will not relax its substantive or evidentiary standards for merger investigations during the COVID-19 pandemicNew guidance from the UK Competition and Markets Authority warns that it will not relax its substantive or evidentiary standards for merger investigations during the coronavirus (COVID-19) pandemic. Statutory deadlines will not be altered, although aspects of investigations may be subject to (...) -
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The UK Competition Authority publishes guidance on its approach to merger control during the COVID-19 pandemicThe Competition and Markets Authority (CMA) has published guidance on its approach to merger control during the COVID-19 pandemic. The guidance deals with procedural issues as well as substantive assessment, and makes it clear that on the whole the CMA’s approach remains one of ‘business as (...) -
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The UK Competition Authority issues guidance summarising the impact of COVID-19 on its merger reviewSince its Amazon/Deliveroo decision on 17 April 2020, the CMA has issued guidance in relation to its assessment of mergers during the COVID-19 pandemic, covering, inter alia, information-gathering, the timing of investigations, the conduct of meetings and hearings, as well as how it will (...) -
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The UK Competition Authority publishes its guidance on merger assessments during COVID-19 pandemicOn 22 April 2020, the UK Competition and Market Authority (“CMA”) published its guidance on ‘Merger assessments during the Coronavirus (COVID-19) pandemic’ (“the guidance”). Prior to the publication of the guidance, there was some speculation about whether the CMA would be more willing to accept (...) -
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The Ecuadorian Competition Authority publishes new merger review procedure due to COVID-19 crisisCOVID-19: New, fast-track merger review procedure introduced in Ecuador Historically, crises have been catalysts of legal and political change. On occasion of the COVID-19 emergency, this week (April 20th, 2020) the Ecuadorian competition agency (‘Superintendencia de Control del Poder de (...) -
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The UK Competition Authority announces its provisional clearance of a proposed acquisition of a stake in a food delivery company in its first application of “failing firm” defence during the COVID-19 pandemic (Amazon / Deliveroo)On 17 April 2020 the CMA announced its provisional clearance of Amazon’s proposed acquisition of a stake in Deliveroo. The transaction was referred for an in-depth Phase 2 investigation in December 2019, in light of concerns about the impact on competition for the supply of online restaurant (...) -
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The UK Competition Authority provisionally clears acquisition of an online food delivery business by a global online shopping company to prevent it from bankruptcy likely to happen due to economic effects of the COVID-19 outbreak (Amazon / Deliveroo)CMA provisionally clears Amazon’s investment in Deliveroo* In light of a deterioration in Deliveroo’s financial position as a result of coronavirus (COVID-19), the CMA has provisionally cleared Amazon’s investment in Deliveroo. After completing an initial, Phase 1, investigation, the Competition (...) -
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The UK Competition Authority uses the failing firm defence in a merger between a service provider and a food delivery supplier during the COVID-19 pandemic (Amazon / Deliveroo)While some businesses may choose to delay transactions in light of Covid-19, many transactions will continue, in particular if the target is in financial distress. In such scenarios, the "failing firm defence" may be an available option for obtaining merger control clearance for transactions (...) -
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The UK Competition Authority provisionally clears an acquisition between an online food delivery business by a global online shopping company (Amazon / Deliveroo)The CMA has provisionally cleared Amazon and Deliveroo merger On 17 April 2020, the Competition and Markets Authority ("CMA") provisionally cleared the anticipated acquisition by Amazon of certain rights and a minority shareholding in Deliveroo. The CMA’s initial analysis of the merger (...) -
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The EU Commission announces that, amid the current COVID-19 crisis, it stands ready to deal with cases where firms can show very compelling reasons to proceed with a merger notification without delayAlthough many competition authorities are making considerable efforts to ensure “business as usual” during the COVID-19 crisis, the pandemic is inevitably having a material impact on merger control reviews around the globe. In addition to the obvious timing implications, deals are now being, and (...) -
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Incompatible aid: The Court of Justice of the European Union annuls the judgment of the General Court confirming the incompatibility of several aid measures implemented by the Greek State in favour of a company in difficulty (Larko)On 26 March 2020, the Court of Justice of the European Union delivered a judgment in case C-244/18 (Larko Geniki Metalleftiki kai Metallourgiki AE v. European Commission).. It will be recalled that in a judgment rendered on February 1, 2018 In Case T-412/14 (Larko Geniki Metalleftiki kai (...) -
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The EU Court of Justice annuls the General Court’s decision which ruled that the Greek authorities should have known about the State aid public loan when there was no proof that they were aware of it (Larko)Advantage Must be Proven, Not Assumed* Introduction When a company gets into financial trouble, public subsidies may provide a temporary respite but hardly ever a permanent solution if the company does not undertake painful restructuring. More than 10 years ago, Larko, a Greek mining (...) -
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The Brazilian Competition Authority implements measures in line with WHO recommendations against the spread of the COVID-19The Brazilian antitrust authority has implemented measures in line with WHO recommendations against the spread of the COVID-19, and activities are being carried out without major impacts, although deadlines in conduct cases are now suspended and delays in certain matters cannot be altogether (...) -
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Economic continuity: The General Court of the European Union confirms the finding of economic continuity between two entities, taking into account in particular the very wide scope of assets transferred (Fortischem)The Fortischem judgment concerns an attempt by Slovakia to rescue a private chemical production company (NCHZ), which was facing bankruptcy proceedings and which the State considered strategic. It is of two main interests: on the one hand, it clearly shows how the manipulation of the bankruptcy (...) -
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The Portuguese Competition Authority clears a merger in the hospital market in applying the failing firm defence (HSGL / HPA Group)The AdC adopts a clearance decision on the Grupo HPA Saúde / Hospital São Gonçalo de Lagos merger* The AdC (Autoridade da Concorrência – Portuguese Competition Authority) has adopted a clearance decision on the merger concerning the acquisition of sole control of Hospital São Gonçalo de Lagos (...) -
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Agripole/Cofigeo merger – what if we discussed the substance?The analysis of the acquisition of Agripole by Cofigeo, subsequent to an in-depth examination, enabled the French competition authority (FCA) to detail its methodology on issues frequently arising in mergers involving consumer goods manufacturers. The FCA focused on the structuring role of (...) -
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The French Competition Authority clears a merger in the metalworking market (Ascoval / British Steel)Metalworking industry* The Autorité de la concurrence clears the takeover of the Ascoval company by the British Steel group. After the decision of the Strasbourg General court of first instance of 2 May 2019, which validated the takeover of the steel plant Ascoval by the British Steel group, (...) -
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Recovery: The French Administrative Supreme Court clarifies the litigation regarding illegal State aid granted to an undertaking in judicial liquidation (CELF)In a judgment dated 5 April 2019, the Conseil d’État ruled out the recognition of the absolute impossibility of recovering State aid illegally paid to a company placed in compulsory liquidation. In the present case, the company Mandataires Judiciaires Associés, acting in its capacity as liquidator (...) -
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Franchise: The Limoges Court of Appeal considers that the intuitu personae clause stipulated to the sole benefit of the franchisor in the insolvency proceedings does not preclude the transfer of the franchise agreement to a new party (Pata Manosque / La Pataterie développement)The delicate question of the transfer of a franchise agreement to a transferee in the context of collective proceedings concerning a franchisor is the subject of a decision handed down by the Limoges Court of Appeal on 28 January 2019. Such a question is acutely relevant in the context of (...) -
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Defective statement of the reasons: The General Court of the European Union annuls for defective statement of the reasons a decision of the European Commission concluding that the creditors committee’s decision to carry on the beneficiary’s business did not constitute a State aid (AlzChem)By judgment of 13 December 2018, the Court of First Instance allowed the action for annulment brought by AlzChem AG (T-284/15) against Commission Decision (EU) 2015/1826 (the ’contested decision’). The contested decision found that the granting of strategic company status to NCHZ had protected it (...) -
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Selective nature of a scheme: The Court of Justice of the European Union annuls a judgement of the General Court and a decision of the Commission concerning the selective nature of a possibility to carry forward past losses, because the reference framework used to carry out the analysis of selectivity was too narrow and too much focused on the legislative technique used by the Member State (Dirk Andres)The Dirk Andres v. Commission judgment is one of four judgments delivered on 28 June 2018 on the same Commission decision, which considered the possibility offered by Germany to companies in difficulty to carry forward losses as selective and constituting State aid. These four judgments are (...) -
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State aid: The Court of Justice of the European Union censors the General Court and considers that the risks arising from commitments entered into by a Member State in a first bank bail out must not be taken into account when assessing the economic rationality of the measures of the second bail out in the light of the market economy operator principle (FIH)On 6 March 2018, the Court of Justice of the European Union delivered a judgment in Case C-579/16 (European Commission v. FIH Holding A/S, FIH Erhvervsbank A/S).. Suivant the conclusions by Advocate General Maciej Szpunar in this case, the Court of Justice of the European Union has therefore (...) -
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Inability to pay the fines imposed by the European Commission in cartel proceedings: How to navigate the maze?When a firm that took part in a cartel faces the risk that the Commission imposes a fine that is disproportionate as compared to its ability to pay and that could lead it to exit from the market, it may explore various procedural options to request that its economic and financial situation be (...) -
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Failure to recover: The Court of justice of the European Union finds that Greece has failed to fulfill its obligations by failing to recover the aid granted to a company in difficulty whose bankruptcy proceedings have been suspended by Greek authorities (Commission/Greece)While this case serves to illustrate the classical case-law according to which the difficulties experienced by an undertaking do not affect the obligation to recover aid from it, it highlights once again the slowness with which the Commission can establish the failure to comply with this (...) -
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The Italian Competition Authority unconditionally approves a rescue banking merger (Venetian Banks)In the Venetian Banks case, the Italian Competition Authority (ICA) gave an unconditional go-ahead to a rescue banking merger. By this merger operation, a major Italian bank, Intesa Sanpaolo (ISP) would take over the banking activities of two regional ailing banks, Banca Popolare di Vicenza (...) -
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The US District Court rejects a failing firm defence and blocks the merger of nuclear waste disposal companies (EnergySolutions / Waste Control Specialists)Federal judge blocks merger of nuclear waste disposal companies rejecting "failing firm" defense* On June 21, 2017, US District Judge Sue L. Robinson blocked EnergySolutions, Inc.’s proposed acquisition of Waste Control Specialists LLC (WCS), applying a strict standard for the “failing firm” (...) -
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Restructuring undertakings in difficulty and competition — Merger & State AidLunchtalk organized by Concurrences Review in partnership with DLA Piper. -
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The Irish Competition and Consumer Protection Commission approves a merger following the parties’ submission of a failing division argument (Baxter / Fannin)Introduction The Irish Competition and Consumer Protection Commission (CCPC) has approved a merger under the Irish Competition Act 2002 (as amended) following the parties’ submission of a failing division argument. The transaction saw Baxter Healthcare Limited (Baxter) seeking to acquire sole (...) -
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The Irish Competition Authority clears the first otherwise anticompetitive merger using the failing firm defence (Baxter / Fannin)Introduction 1 On 21 October 2015 the Competition and Consumer Protection Commission (CCPC), Ireland’s competition agency, cleared the acquisition by Baxter Healthcare Limited (Baxter) of Fannin Compounding Limited (Fannin), a business division of Fannin Limited which was, in turn, a subsidiary (...) -
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The Danish Competition Authority requests criminal indictment for withholding in a merger assessment (Metro Cash & Carry)METRO Cash & Carry risks fine in Danish merger case* The Danish Competition and Consumer Authority (DCCA) has reported METRO Cash & Carry (METRO) to the State Prosecutor for Serious Economic and International Crime for failing to submit relevant information regarding a notified merger. (...) -
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The Competition Commission of Singapore clears an acquisition in the airline sector in a landmark decision (Singapore Airline / Tiger Airways)On 28 November 2014, the CCS announced that it had cleared the notification for decision in relation to the acquisition of Tiger Airways Holdings Limited (“Tigerair”) by Singapore Airlines Limited (“SIA”) (collectively, the “Parties”) on the grounds of a failing firm defence argument. After (...) -
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Maritime transport : The Court of Justice of the European Union upholds the judgment of the General Court partially annulling the Commission’s decision in relation to the privatisation of the shipping company operating regular services to Corsica from mainland France (SNCM / Corsica Ferries)The judgment delivered by the Court of Justice on 4 September 2014 marks the epilogue of a long dispute which we had already commented on when the Court of First Instance delivered its decision at first instance (J. Derenne, Concurrences n° 4-2012). It should be recalled that, by judgment of 11 (...) -
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The German Competition Authority clears a merger by applying the failing firm defence on the daily newspapers market (Westfälische Nachrichten / Münstersche Zeitung)Regional daily Westfälische Nachrichten can take over Münstersche Zeitung* The Bundeskartellamt has cleared plans by the Münster-based publishing house Aschendorff Verlag (which publishes Westfälische Nachrichten) to acquire the regional daily Münstersche Zeitung. The daily is sold by the (...) -
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The UK Competition and Markets Authority refuses to apply the failing firm defence to clear a merger in phase II (Alliance / IBA)United Kingdom Merger Control: Recent Developments in the Failing Firm Defence* On 15 August 2014, the Competition and Markets Authority (“CMA”) approved Alliance Medical Group’s completed acquisition of IBA Molecular’s radioactive medical tracer business. Although IBA’s business was loss-making, (...) -
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Undertakings in difficulty : The European Commission adopts new guidelines on rescue and restructuring aidThe previous Commission Communication on rescue and restructuring aid dated from 2004, and had been extended twice. It struck a balance between the need to support ailing companies that can restructure and become viable again and the need to limit the significant distortions of competition (...) -
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Financial services and competition law: An overview of EU and national case law1. Financial crisis We are writing this foreword during a period of virtually unprecedented economic disarray. At the time of drafting, a deal has just been hammered out to protect Greece from default on its sovereign debt, but uncertainty still remains as to whether other Eurozone countries - (...)
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