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Since launching its review programme in September 2019, the Commission has been working to update its Horizontal Guidelines and two sets of block exemptions, R&D and Specialisation, both of which are due to expire on December 31, 2022. The Commission consulted widely (to which we contributed) and has just published proposed drafts of each in a final round of consultations, which will expire on April 26, 2022. Alongside this programme, the Commission is also updating the Verticals Block Exemption and the Market Definition Guidelines, for which further drafts are expected in the coming months.
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Continue Reading Commission Moves Closer to Finalizing New Horizontal Guidelines and R&D and Specialization Block Exemptions

Gun-jumping can occur when parties fail to fulfil the two obligations laid down by the European Merger Regulation No 139/2004 (EUMR). Article 4(1) of the EUMR sets out the obligation to notify the European Commission (Commission) of a concentration with an EU dimension before implementation. Article 7(1) sets out the obligation to stand still until the Commission declares such a concentration compatible with the internal market.

But would it be possible for parties to breach both obligations concurrently regarding the same transaction and thus to be fined doubly? The General Court answered in the affirmative in one of the most anticipated anti-gun-jumping cases.…

Continue Reading Gun Jumping: The General Court’s Ruling

President Biden’s unprecedented July 9, 2021, Executive Order 14036 represents a potential watershed moment in U.S. competition policy. The wide-ranging Executive Order (EO) includes 72 initiatives that aim to enforce existing antitrust laws and other consumer protection regulations, to be undertaken by at least 15 federal departments, offices, and agencies. The Biden Administration’s stated hope is that these efforts will drive down prices for consumers, increase wages for workers, and facilitate innovation.
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Continue Reading Biden Administration Calls for Whole-of-Government Approach to More Vigorous Antitrust Enforcement

A ‘killer acquisition’ is an acquisition of a potential rival whilst they are still in the early stages of their development, whose turnover is small or zero, in order to eliminate them as a possible source of future competition. Such acquisitions often fly under the radar of EU and national merger regimes which are usually only engaged when the turn-over of a target exceeds a certain threshold. They tend to be a particular problem in digital services where companies try to expand their market share whilst charging nothing or very little to begin with and pharmaceutical companies whose new techniques or medicines may take years to develop and not yield revenue for a significant period of time.
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Continue Reading Attack of the Killer Acquisitions

In August 2020 Steptoe’s Antitrust & Competition team in partnership with FTI Consulting hosted two webinars to discuss EU consultations which are likely to affect the regulation of digital space across Europe.
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Continue Reading European Commission’s Regulatory Proposals in the Digital Marketplace – The Outcomes of Our Recent Webinar Discussions

On June 9, 2020, the UK Competition Markets Authority (CMA) served an initial enforcement order under section 72(2) of the Enterprise Act 2002 on Facebook in relation to their completed acquisition of Giphy.

The CMA has explained in a statement that the proposed investigation would explore whether the acquisition might result in “a substantial lessening of competition in any market or markets in the UK.” The UK merger system is a voluntary one, even where the transaction meets the qualification tests for merger review by the CMA. If a qualifying transaction is not notified, the CMA has the power to require parties to suspend implementation, pending a merger review.…

Continue Reading UK Competition Authority Enquiry into Facebook’s Acquisition of Giphy

The General Court has annulled the European Commission’s decision of May 11, 2016, in which it blocked the proposed acquisition of Telefonica UK (O2) by Hutchison 3G UK (Three). The General Court found that the Commission failed to prove that the merged company would harm competition or raise prices and that it had made several errors of law and assessment in its review. While the ruling will be welcomed by the telecoms industry that continues to consolidate, the General Court’s guidance on the EU Merger Control Regulation will be relevant for other mergers and acquisitions, particularly in oligopolistic markets (e.g. four-to-three transactions) where the merger does not result in the creation or strengthening of a dominant position.
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Continue Reading The General Court Clarifies the Legal Test and Evidentiary Burden to Support Prohibition of Acquisitions under EU Merger Control Regulation

On June 2, 2020, the European Commission opened a public consultation to seek views on the contents of the Digital Services Act (DSA), an ambitious legislative package intended to regulate digital markets in EU.

The European Commission will be seeking feedback from a wide range of stakeholders on issues like online safety, freedom of expression,…

The CMA has provided guidance on its expected approach to merger assessments during the Covid-19 pandemic. While the timescales and substantive assessment of a merger’s effects on competition remain unchanged, the CMA has made a number of adjustments to its working arrangements in order to meet deadlines and progress cases. However, it is likely that some aspects of investigations may be subject to some delay.
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Continue Reading CMA Guidance on its Approach to Merger Assessments during the COVID-19 Pandemic