What are the recent trends in the approach of the relevant authority to enforcement, procedure and substantive assessment?
Merger Control (3rd edition)
The Austrian competition authorities and particularly the BWB are kept quite busy with merger control. As in previous years, the BWB has reviewed many concentrations. In 2017, 439 national filings were made, of which 99.5%, more precisely 409 cases, were already cleared in Phase I. Only in 2 cases (0.5%), the BWB applied for Phase II proceedings. Further, 448 EU mergers were examined by the BWB, which means that, in 2017, the BWB has examined 886 concentrations in total.
As mentioned, particularly in complex cases it can be advisable to hold pre-notification talks with the official parties. In 2017, 44 such talks are reported (which is a significant increase as compared to the previous year, in which only 28 such contacts took place).
With regard to recent enforcement trends, one decision of the Austrian Cartel Court of Appeals – as regards anti-trust public enforcement and merger control, the second and last instance in Austria – should be mentioned, namely the Novomatic case (case no. 16 Ok 11/16b). Although the case concerned an highly regulated industry, the first prohibition decision (by the Cartel Court) has been confirmed.
As the new mandatory merger control regime has been in force for just over a year, there are no specific trends that could be mentioned in this regard.
Until 2013, the Competition Board dealt with a significant number of merger control cases. Since the notification threshold was increased by Communiqué 2012/3 on the Amendment of Communique 2010/4 on the Mergers and Acquisitions Subject to the Approval of the Competition Board, this trend has changed and the number of transactions reviewed by the Competition Authority has gradually decreased. As expected, the board shifted its focus from
merger control cases to concentrate on the fight against cartels and abuse of dominance.
The board finalised 303 merger control cases in 2012 – this number fell to 215 in 2014 and 158 in 2015. However, in 2016 the decreasing trend of merger control cases reviewed by the Board has shifted. While the number of reviewed cases was 158 in 2015, it dramatically increased to 209 in 2016 (an increase of approximately 32%). In 2017, the Board has assessed 184 transactions and took four transactions into Phase II review.
According to the 18th Annual Activity Report of the Competition Authority for 2016, the board finalised 209 merger control cases. Among these 209 transactions, 85% were granted unconditional approval and 15% were decided to be either outside of the scope of Article 7 of Law No. 4054 or not notifiable. The 209 overall transactions included seven mergers, 161 acquisitions, 32 joint ventures and nine privatisations. In 2017, among the 184 transactions that the Board has assessed, 90% of these were granted unconditional approval while the rest were decided to be either outside of the scope of Article 7 of Law No. 4054 or not notifiable.
There has been a trend towards a more economic approach in merger cases, and recent merger decisions from the DCCA illustrate an increasing use of economic evidence, especially in cases concerning consumer-related markets.
Furthermore, there is an increasing tendency among merging parties to withdraw notifications in cases where it seems highly likely that the merger will otherwise be prohibited. Thus, even though the DCCA has only prohibited one merger to date, this tendency may indicate that the DCCA’s approach to assessing mergers is becoming stricter.
Finally, we have seen an increase in the number of merger filings over the last couple of years. In 2017, the Danish competition authorities received 50 notifications and approved 49 mergers. One merger (JP/Politiken/Dagbladet Børsen) was withdrawn by the parties after the DCCA had conducted an extensive Phase II investigation. The DCAA did not prohibit any mergers in 2017.
Two recent trends of note can be seen in the CCPC’s approach to merger control.
- First, the CCPC has taken a proactive role of late in monitoring the notification of transactions. The CCPC's ongoing investigation into suspected gun-jumping in the Armalou-Spirit Ford/Lillis O'Donnell case is one example of this. Another example is Kantar Media/Newsaccess, where the CCPC became aware of the merger through market surveillance and sought voluntary notification of the transaction from the parties. Although the parties informed the CCPC that the transaction fell below the financial thresholds for mandatory notification, a voluntary notification was made as the CCPC was concerned that the proposed merger would result in Kantar Media removing its closest and most substantial competitor from the market. The transaction was subsequently cleared by the CCPC subject to binding commitments.
- Second, as noted in response to Question 30 above, the CCPC has shown an increasing willingness to accept non-structural remedies to address competition concerns, such as confidentiality and merger notification commitments (Dalata/Clarion Liffey Valley/Clayton Cardiff Lane); a commitment to develop a particular supply business (Applegreen/JFT); and firewall and confidentiality commitments (Uniphar/Sisk Healthcare).
In a number of cases over the past year, the CPC has demonstrated a particular concern as regards the ability of undertakings controlling a joint venture to acquire business secrets held by the joint venture in a manner which could distort competition in the markets in which the controlling undertakings operate.
The recent amendment of the jurisdictional thresholds, which entered into force in August 2017, has led to a slight increase of the number of merger control notifications. In fact, from September 2017 to August 2018, the notifications filed with the ICA were approximately 69. By contrast, in 2016, only 54 notifications were filed with the ICA, whereas, from January to August 2017, the notifications were just above 30.
Recent Phase II investigations have been characterized by a more in-depth assessment of the geographic market definition. Especially with respect to retail markets (banking outlets and retail stores), which typically have a limited geographic scope, the ICA did no longer exclusively rely on a market definition corresponding to the administrative boundaries of a specific territory (e.g., a particular province), but carried out an analysis based on “catchment areas” (see, e.g., ICA’s decisions of January 17, 2018, Case C12109 – Profumerie Douglas/La Gardenia Beauty-Limoni; of April 24, 2018, Case C12139 – Noah 2/Mondial Pet Distribution; and of May 23, 2018, Case C12138 – Cassa Centrale Raiffeisen dell'Alto Adige/Gruppo Bancario Cooperativo delle Casse Raiffeisen).
A similar approach was followed in a concentration involving two competing cement manufacturers (see the ICA’s decision of November 8, 2017, Case C12113 – Italcementi/Cementir Italia).
Finally, in recent Phase II cases, the ICA confirmed its strong preference for structural remedies (see, e.g., the ICA’s decision of January 25, 2018, Case C12125 – 2I Rete gas/Nedgia), also imposing measures going beyond the scope of the undertakings voluntarily offered by the parties (see, e.g., the ICA’s decisions of January 17, 2018, Case C12109 – Profumerie Douglas/La Gardenia Beauty-Limoni, and of January 25, 2018, Case C12125 – 2I Rete gas/Nedgia).
The NCA is more concerned with closeness of competition than market concentration per se. Local markets are often scrutinized and economic analysis is becoming increasingly important. The SIEC test and a consumer welfare standard is applied. The NCA recently approved a concentration based on a pure efficiency gains defense, and although rare, the matter signals that in-depth analysis may be key to obtain clearance in more complicated matters.
Change in Size of the Party and Size of the Transaction Thresholds:
- The aggregate annual gross revenues in, into or from the Philippines, or value of the assets in the Philippines of the ultimate parent entity of at least one of the acquiring or acquired entities, including that of all entities that the ultimate parent entity controls, directly or indirectly, exceeds Five Billion Pesos (PhP5,000,000,000.00) (the “Size of the Party Threshold”);
- The value of the transaction exceeds Two Billion Pesos (PhP2,000,000,000.00) as determined by the following factors (the “Size of the Transaction Threshold”):
a. The aggregate assets in the Philippines owned by the corporation whose voting shares are to be acquired or by entities it controls (the “Target Corporation”) exceed Two Billion Pesos (PhP2,000,000,000.00); or
b. The Target Corporation’s gross revenues from sales in, into, or from the Philippines exceed Two Billion Pesos (PhP2,000,000,000.00); and
c. As a result of the proposed acquisition of the voting shares, the acquiring entity would own Thirty Five Percent (35%) or more of the Target Corporation’s outstanding shares.
Udenna Corporation, PCC Case No. M-2017-001:
- The PCC voided a Philippine conglomerate’s acquisition of shares in a foreign corporation which has Philippine subsidiaries that hold substantial assets for non-compliance with the compulsory notification requirement under the PCA. The PCC also imposed a fine of around Twenty Million Pesos (PhP20,000,000.00). The PCC held for the purposes of the Size of the Transaction Test that the Target Corporation’s shares in “entities it controls are excluded” but the “assets of the controlled corporations are still included in the valuation”.
- The PCC has imposed a multi-million peso fine on a Philippine conglomerate that did not comply with the compulsory notification requirement.
In re: AXA SA, Camelot Holdings Ltd., and XL Group Ltd., PCC Case No. M-2018-004, Decision No. 30-M-03/2018, 30 August 2018
- The PCC imposed a fine of “1/2 of 1% of 1% of the value of the Subject Transaction” for the filing of compulsory notification one hundred twelve (112) days after the execution of the definitive agreement. The fine was imposed even though the merger was later on approved by the PCC.
- The PCC emphasized that compulsory notification may be complied with by filing within thirty (30) days after execution of the definitive agreement and before consummating the merger.
The most important recent trend is the detailed evaluation of new markets, in particular high technology markets, which were not a subject of FAS’s review in recent years. In addition, FAS comprehensively assesses the potential impact of the transaction on the ancillary markets which are not directly affected by the transaction.
In terms of enforcement, the FCA has publicly announced that it will pay an even greater attention in the coming years to breaches of the obligation to notify reportable transaction and of the stand-still obligation. The decision rendered recently in the Altice case mentioned above (€80 million of fine) confirms this trend.
In terms substantive assessment and remedies, it is observed that the FCA is increasingly reluctant towards behavioral remedies.
The Commission remains focused on the potential impact of mergers on employment in South Africa. It is becoming more difficult for merger parties to justify job losses pursuant to a merger. The Minister of Economic Development (Minister) (who has standing to participate in merger proceedings on public interest grounds) adopts creative and often far-reaching positions on the scope of the public interest factors set out in the Act for merger assessment and as the domestic and global economic outlook stagnates, it is likely that there will be a sharper focus by the Commission and the Minister on public interest factors in merger proceedings.
During the first few years of the Trump Administration, the FTC and DOJ have largely stayed consistent with past Republican administration’s approaches to antitrust merger enforcement. Although it has taken some time for the appointment and confirmation of senior antitrust leadership, the Trump Administration’s appointees to the DOJ and FTC are experienced antitrust and consumer protection practitioners with prior senior government antitrust experience.
There have been a few notable policy departures, including – to the surprise of many in the antitrust bar—the DOJ’s challenge of the AT&T/Time Warner vertical merger. This was the first fully-litigated challenge to a vertical merger in the US in 40 years. Because of the significant efficiencies that often result from vertical integration, vertical mergers, unlike horizontal mergers among competitors, do not typically raise competitive issues. In the past, the antitrust agencies either allowed vertical mergers to proceed without action or resolved these mergers with conduct (behavioral) remedies. The DOJ lost the AT&T/Time Warner case after a six-week trial before a federal district court judge. The DOJ has appealed the decision. Both the FTC and DOJ have recently emphasized a more critical approach to the use of conduct remedies as part of a settlement, even for vertical mergers. In so doing, the DOJ has stated that conduct remedies will only be considered for vertical mergers if the parties can meet the admittedly high standard of showing that the conduct remedies will completely resolve any anticompetitive harm caused by the transaction and that the transaction will generate significant efficiencies that cannot be achieved without the merger or through a structural remedy.
State antitrust enforcement has also been more active than historically, with states challenging mergers even absent the federal antitrust agencies. For example, the California Attorney General sued to block the acquisition of two Northern California bulk petroleum terminals, despite the FTC declining to take action.
The barriers to prohibit mergers in Switzerland are high. The turnover thresholds that trigger mandatory notification are already set very high and if a planned merger reaches the turnover thresholds and is examined in an extended investigation (phase II) the creation or strengthening of a dominant position on its own is not sufficient to block the merger; it must also be liable to eliminate effective competition (qualified market dominance, see question 13). As a result, only very few mergers have been prohibited to date, such as the planned mergers between Ticketcorner, Tamedia and Starticket or between the telecommunications companies France Télécom SA (Orange) and Sunrise Communications AG; in the latter case, the merged entity would have created a collective dominant position in the mobile telephony market together with another non-participating company (Swisscom).
The Period 2017/2018 only brought a total of 14 published phase 2 cases. While some of the cases contain relevant information for certain circumstances, no fundamental shifts in merger control practice took place.
The decision of the FCO not to allow a merger between retailers EDEKA and Kaiser’s Tengelmann was upheld by the Higher Regional Court Düsseldorf in August 2018. The merger had gotten a lot of attention in the media, after the Minister for economic affairs had approved the merger (Ministererlaubnis) after the FCO had issued a negative decision.
The FCO has published documents of high importance. In May 2017, the new remedies guidelines (Leitfaden Zusagen in der Fusionskontrolle) were finished. In July 2018, in cooperation with the Austrian competition authority (Bundeswettbewerbsbehörde), the FCO published a Guidance on Transaction Value Thresholds for Mandatory Pre-Merger Notification for the application of the newly introduced thresholds (available from the FCO-website).
In the history of the HCC virtually all proceedings (with the exception of two concentrations banned in the 1990s) ended up in clearances; abandonments and prohibitions were not imposed so far. Lately, there are instances where the HCC is using more often the tool of remedies. As regards the imposition of remedies, the HCC shows a stability as to the methodology it follows:
- When the HCC resolves to impose remedies on a concentration where the combined market shares of the parties exceed 40-50% in certain market segments, reference appears to be given to structural remedies and/or divestitures. The arithmetic majority of relevant concentrations appear to have culminated in the imposition of such structural remedies.
- Nevertheless, there are several notable instances where the HCC has decided to impose behavioral measures instead (see e.g., 513/VI/2011 - ELAIS UNILEVER / EVGA). As a matter of principle, the respective instances involved cases where, despite the high market shares of the parties, the horizontal overlap of their activities was not as substantial and the anticompetitive concerns could be addressed through behavioral measures (e.g., removal of exclusivity clauses from contracts).
- There have been some cases, where, despite the high combined market shares of the parties in certain market segments, the HCC imposed no remedies whatsoever (In these cases, particular weight was given to the analysis of the structure of the market following the implementation of the concentration (future behavior) as well as the current competitive conditions in the market overall (e.g., existence of competitors with equally high market shares, status of parallel imports etc.), pointing out that there is no necessity to impose any remedy whatsoever
- It would be nevertheless suggested that the non-imposition of any remedies in cases where the combined market shares of the parties exceed 40-50% in certain market segments constitutes the exception rather than the norm (at least in recent years). Non-imposition of any remedies may be, for example, justified on the basis that the market segments in question were treated as a rather insignificant part of the overall market.
- All in all, the above analysis does not provide a safe harbor that would apply in any future concentration assessed by the HCC, nor can point out the “total mix” of remedies that would be imposed in each case; it rather signifies a tendency as to the remedies framework that the HCC would be inclined to impose under given circumstances.
- Finally, a note could be made in the recent practice of HCC with respect to clearing concentrations arising from acquisitions of assets further to a privatizations process. Such concentrations are often cleared without the imposition of any remedies, regardless of the fact that the combined market shares of the parties may be found to be relatively high in certain markets. For example, the acquisition of State Lotteries by OPAP, a company active in the organization and distribution of gambling games was cleared without any remedies on the ground that there was no overlap as to the activities of the participating undertakings (HCC Decision 573/VII/2013). Similarly, the HCC has recently cleared the concession of 14 Greek regional airports from the Hellenic State to Fraport AG without any remedies (HCC Decision 626/2016) as, according to the respective announcement, “the notified transaction did not raise serious doubts as to its compatibility with merger control rules in the relevant markets concerned by the concentration.
Being limited to the electricity sector, there are not enough authorization requests to define any trend in the practice of INDECOPI. However, it is important to note that during the last three years every transaction has been unconditionally approved by the INDECOPI.
The PCA has in 2018 defined as priorities for merger control: i) improving the detection of implementation of concentrations in breach of the prior notification requirement; ii) enhancing the merger control analysis; iii) reducing the length of investigations in complex cases; iv) ensuring a better allocation of resources, in order to allow for more efficient and simplified instruction and decision processes.
It should also be noted that both the PCA and the parties, in recent assessments, have been using new economic analysis and tools, in particular where the activities at stake are within regulated sectors such as telecommunications and energy. In those circumstances, there has also been an increased use and involvement of economic consultants.
The JFTC more often attempts to conduct an economic analysis using its own economic experts. Accordingly, the JFTC tends to request the parties to submit more detailed information than before. To obtain the JFTC’s clearance safely and swiftly for a transaction in which the case team of the JFTC includes economic experts, it is sometimes advisable for the parties to employ their own economic experts.
In the past, the CCI has imposed penalties for delayed filing of the notice with respect to acquisitions, mergers, or amalgamations under Section 43A of the Competition Act.
In the past, parties to a notifiable transaction were under an obligation to file the notice with the CCI within 30 calendar days of the trigger event. However, on 29 June 2017, the MCA exempted, for a period of five years, every person or enterprise from the obligation to give notice to the CCI within 30 days of the trigger event. This exemption is currently available until 28 June 2022. This is a welcome step as it aligns the Indian merger control regime with internationally accepted best practices. As a result, like the European Union, the key is to obtain CCI clearance prior to deal consummation, rather than an arbitrary deadline to file after the triggering event.
In 2017, the MCA introduced a series of exemptions from notification obligations under Sections 5 and Section 6 of the Competition Act. Details of the exemption have been provided below:
- On 22 November 2017, the MCA exempted all cases of combinations involving Central Public Sector Enterprises and their wholly or partly owned subsidiaries operating in the Oil and Gas Sectors under the Petroleum Act, 1934 and/or Oilfields (Regulation and Development) Act, 1948 for a period of 5 years, i.e., until 21 November 2022.
- On 30 August 2017, the MCA exempted all cases of reconstitution, transfer of the whole or any part thereof, and amalgamation of nationalized banks under the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 and the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1980 for a period of 10 years, i.e., until 29 August 2027.
- On 10 August 2017 the MCA exempted all Regional Rural Banks in respect of which the Central Government has issued a notification under sub section (1) of section 23A of the Regional Rural Banks Act, 1976 for a period of 5 years, i.e., until 9 August 2022.
The CMA continues to refine its procedures.. In 2017, it revised its merger notice template with a view to reducing the (typically high) volume of information required, and improved guidance regarding initial enforcement orders. It has also issued guidance on its mergers intelligence function which includes details of mechanisms that allow parties to seek some informal, non-binding comfort that the CMA will not 'call in' a merger for review and has recently consulted on draft guidance on internal document requests.
See the overview.