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 [...]
Competition Law in Canada – Top 10 Issues for 2013
This is a post of an article written by my partners Anita Banicevic, Richard Elliott, Charles Tingley and me
2012 was a busy year for competition law and policy in Canada. Below we consider how some of the important developments in 2012 will shape the enforcement of Canadian competition law in 2013.
1. Will the New Interim Competition Commissioner Stay the Enforcement Course?
In September 2012, the Commissioner of Competition resigned and was replaced on an interim basis by John Pecman, a seasoned Bureau veteran with over 28 years of enforcement experience. While a permanent replacement is expected [...]
The Austrian Parliament has passed a bill amending the Austrian competition law rules. On March 1, 2013, significant changes will enter into force. These include the following:
This is the follow-up to the post “Austria: New competition rules – Take one”.
Strengthening of private enforcement
The legislator made efforts to promote private enforcement. This is demonstrated, e.g. by a new provision in the Austrian Cartel Act exclusively dedicated to compensation for damages as a result of infringements of competition law. The new law makes it clear that anyone guilty of committing such a violation is obliged to compensate the resulting damages.
In addition, it states that a private claim [...]
In contrast to e.g. the UK Office of Fair Trading, the European Commission so far has not applied UPP-type approaches in phase I merger enquiries. However, a Commission submission to the OECD earlier this year indicates that it is keeping its options open. This post discusses frequently asked questions regarding the concept of UPP and its use.
What is UPP?
UPP (Upward Pricing Pressure) is a tool with which it is possible to estimate the risk of a merger giving rise to unilateral effects. Unilateral effects may result from a merger between A and B because customers that would switch between A and B in response to a price increase are, post-merger, “internalised” by the merged entity. Bec [...]
The Commission published the text of its most recent prohibition decision in Deutsche Boerse / NYSE Euronext. The Decision is lengthy and the Commission appears to have formulated a response to most arguments proffered by the parties.
However, a review of the Decision brings to the fore a number of ways in which the Commission could improve the quality of the evidence which it uses to support its decisions. Many of the issues discussed below have been debated in the past, including before the EU Courts. And while the Courts generally show a certain level of deference to the type of evidence which the Commission uses, that should not prevent the Commission from continuously trying to imp [...]