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Greenberg Traurig January 2022 Competition Currents: the UK and EU


United Kingdom

Merger control

 Interim measures rules revised.

Although the UK merger regime permits acquisitions to be completed without CMA clearance, the CMA can investigate a completed merger any time up to four months from the later of completion of the transaction and public announcement of the transaction. This intervention power is reinforced through the CMA’s power to impose interim measures on the acquirer, requiring it to suspend integration of the target until the CMA’s investigation has completed and clearance has been granted. The CMA’s increasingly strict use of this power, in imposing penalties for non-compliance and refusing derogations from the acquirer’s “hold-separate” obligations, has been the subject of challenge recently. In December 2021, the CMA published guidance to clarify when interim measures will apply and the steps the parties must take to ensure compliance.

JD Sports/Footasylum.

On Dec. 6, 2021, the CMA provisionally approved JD Sports’ divestment of Footasylum, after a prolonged engagement lasting over two years. The CMA’s investigation of the completed acquisition started in mid-2019 and, after a phase 2 investigation, led to a decision in mid-2020 to block the transaction. JD Sports appealed this prohibition to the CAT, which upheld JD Sports’ claim that the CMA had acted irrationally by failing to make sufficient inquiries about the impact of the COVID-19 pandemic on Footasylum. The CMA failed in its appeal of the CAT’s decision in the Court of Appeal. As a result, CMA’s decision blocking the transaction was quashed, and a fresh investigation of the acquisition resulted in a new CMA decision, on Nov. 4, 2021, to block the transaction. Shortly afterwards, on Nov. 8, the CMA announced it was investigating JD Sports and Footasylum for breach of the interim measures put in place at the start of CMA’s second investigation. This is the second such investigation, the first one having ended with the CMA withdrawing in October 2020 the £300,000 penalty imposed on JD Sports in July 2020.

Veolia/Suez.

Standing out from a number of pre-holiday merger clearances, Veolia’s proposed public takeover of Suez has been referred for a phase 2 investigation based on CMA concerns that it would result in a loss of competition in the supply of certain waste and water management services in the UK, leading to higher costs to local authorities and taxpayers. The CMA had offered Veolia the option of providing undertakings in lieu of a reference to resolve these concerns, but Veolia opted to proceed to phase 2, which is scheduled to conclude June 6, 2022.

Cargotec/Konecranes.

This proposed merger involves the first phase 2 investigation the CMA has conducted in parallel with a review by the European Commission since Brexit. The merger is also being reviewed by a number of other competition authorities, and the CMA has engaged with them and the European Commission to progress its investigation. On Nov. 26, 2021, after the parties opted to use the UK fast-track procedure to phase 2, the CMA issued its provisional findings. The deadline for the CMA’s final decision is April 1, 2022.

Circle Health/BMI Healthcare.

Circle Health completed its acquisition of BMI in January 2020 and, after a CMA phase 1 investigation, agreed to avoid a phase 2 investigation and resolve the CMA’s competition concerns by undertaking to divest two of its own businesses. The undertakings were provided to the CMA in June 2020, but Circle was unable to find a buyer for one of the divestment businesses within the relevant deadline. It applied to the CMA to vary the undertakings, on the basis of a change in circumstances since the undertakings were originally given. On Nov. 26, 2021, the CMA issued a provisional finding report indicating it was inclined to accept that there had been a change in circumstances and to agree to alternative remedies. Its final decision is due in February 2022.

New national security rules affecting merger timetables.

On Jan. 4, 2022, a mandatory filing regime began for acquisitions of 25% or more of any business operating in one of the below-listed 17 sectors. This regime will impact merger timetables because completion of any transaction subject to the regime is prohibited until the UK Secretary of State has granted approval.

Advanced Materials

Critical Suppliers to Government

Military and Dual-Use

Advanced Robotics

Critical Suppliers to the Emergency Services

Quantum Technologies

Artificial Intelligence

Cryptographic Authentication

Satellite and Space Technologies

Civil Nuclear

Data Infrastructure

Synthetic Biology

Communications

Defence

Transport

Computing Hardware

Energy

 

Antitrust Investigations – penalties.

On Dec. 16, 2021, the CMA published its revised Guidance as to the appropriate amount of a penalty (CMA73). While confirming that the CMA is not bound by previous cases, the guidance also confirms that the CMA should ensure there is broad consistency in its approach to cases. It highlights the CMA’s duty in multi-party cases to observe the procedural requirements of fairness and rationality and provides more detail on its approach to assessing whether a penalty presents sufficient deterrence, is proportionate, and the basis on which it will reduce a penalty on grounds of financial hardship.

Antitrust litigation.

The CMA has for the first time joined a private antitrust action as an interested third party. On Dec. 6, 2021, the CAT gave it provisional permission to intervene in an action by Epic Games against Google.

European Union

 European Commission

European Commission fines certain European money center banks for taking part in forex trading cartel.

On Dec. 2, 2021, the European Commission announced the completion of its cartel investigation into the Foreign Exchange (Forex) spot trading market and imposing of fines totaling EUR 334 million on certain European money center banks. One bank received a 100% discount of its fine as a successful immunity applicant; and others received discounts under the European Commission’s Leniency Notice and the Commission’s Settlement Notice.

The European Commission’s investigation revealed that some traders of the Forex spot trading of G10 currencies – the most liquid and traded currencies worldwide – acting on behalf of the banks fined, had exchanged sensitive information and trading plans, and had sometimes coordinated their trading strategies online in violation of the cartel prohibition of article 101 TFEU. The information exchanges enabled traders to make informed market decisions whether and when to sell or buy the currencies in their portfolios, as opposed acting independently with the risk inherent to these decisions.

European Commission conditionally approves the proposed acquisition by Veolia of…



Read More : Greenberg Traurig January 2022 Competition Currents: the UK and EU

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