On 8 October 2013, it was announced that the nuclear industry would not be included in the European Commission’s draft Guidelines on environmental and energy aid for 2014-2020 as anticipated. Earlier in the year, a leaked copy of the draft Guidelines (which the author has read) set out six pages on how the Commission would seek to address State measures in the nuclear industry.
Some commentators are claiming victory for the anti-nuclear lobby; others appear to be suggesting that this is a major setback for the nuclear industry, particularly in the UK where a new fleet of reactors is proposed.
But this development should not be overstated. It may in fact be good news for the nuclear industr [...]
On 25 June 2013, the European Commission launched a public consultation entitled “Towards more effective EU Merger Control” in which the Commission proposes to (i) expand its powers to review non-controlling minority interests and (ii) streamline the case referral system between the Commission and NCAs.
The proposals in respect of minority shareholdings will have a profound impact on corporate M&A activities in Europe.
In short, the Commission proposes extending the EU Merger Regulation to catch certain “structural links” – e.g. an acquisition of a minority shareholding that does not confer the ability to exercise decisive influence under the EU Merger Regulation but potentially allow [...]
Like the European Commission, I am confident that the European Merger Simplification Project will bring benefits for clients. As many commentators have affirmed, I do not doubt that the increase of the currently applicable market share thresholds for the identification of horizontally and vertically “affected markets” by 5 per cent to 20% and 30% respectively will allow more cases to be treated with less pain. Equally, the “safe harbour” for mergers with very small increments in concentration should be welcomed. If this leads to a lesser administrative burden for companies trying to business in Europe during these continuingly difficult times, then all the better.
However, I am concerned th [...]
My U.S. colleagues Lee van Voorhis and Brian Rafkin wrote an excellent client alert on the Bosch case and I asked them to prepare the following short summary for the Kluwer readership:
On November 26, 2012, the FTC and Robert Bosch GmbH entered into a Consent Agreement that resolved the FTC’s inquiry into Bosch’s $1 billion acquisition of SPX Services. As part of the Consent Agreement the FTC required that Bosch agree to license on FRAND terms certain SPX patents. This is the first case where the FTC alleged an antitrust violation where a patent owner sought injunctions against willing licensees of FRAND-encumbered standard-essential patents. Moreover, the FTC obtained a consent agre [...]
On 6 December 2012, the EU Court of Justice handed down judgment in the long-running AstraZeneca litigation. Practitioners hoping for an opinion that tempered some of the more extreme dicta of the General Court found a more measured judgment. The Court upheld the General Court’s judgment in its entirety. But it refrains from endorsing the General Court’s dangerously low threshold as to what conduct before the patent office will constitute an abuse of a dominant position. That said, there is no comfort to be gained on market definition. The Court brushes aside any errors that the General Court made as being a side show that would not alter the final outcome. The Commission’s very bro [...]
In a judgment handed down today (C-158/11 Auto 24), the EU Court of Justice (“CJEU”) confirmed that suppliers operating selective distribution systems (“SDSs”) are under no obligation to publish the criteria used to appoint distributors, and that a car manufacturer using a SDS based on quantitative criteria is under no obligation to apply these criteria in a uniform manner, or to ensure that these criteria are objectively justified. Whilst the proceedings relate to a case brought in respect of the Motor Vehicle Block Exemption Regulation (MVBER), the CJEU’s judgment may have meaning for the assessment of other types of SDSs.
At a time when selective distribution is under attack from the lobb [...]