EU Mergers

Phase I Mergers

  • M.8101 SIEMENS / VALEO / JV (14 September 2016)
  • M.8126 HNA GROUP / CARLSON HOTELS (12 September 2016)
  • M.8161 ARDIAN / QUALIUM / KERME (12 September 2016)
  • M.8169 VERLINVEST / CRC / JV (12 September 2016)
  • M.8171 SEGRO / PSPIB / SELP / TREZZO (14 September 2016)
  • M.8172 H&F / PERMIRA / GENESYS (15 September 2016)
  • M.8188 POSTFINANCE / SIX / TWINT (15 September 2016)
  • M.8193 TEVA / ANDA (15 September 2016)

EU Competition

ECJ judgments on pre-stressing steel cartel appeals. On 14 September 2016, the European Court of Justice (ECJ) handed down two judgments on appeals against the General Court’s judgments concerning the European Commission’s (Commission’s) decision regarding the pre-stressing steel cartel. In the Ori Martin/Siderurgica Latina Martin (SLM) case (judgment not available in English), Ori Martin argued that the General Court’s judgment should be set aside in so far as it dismissed Ori Martin’s claim that the Commission had unlawfully extended joint liability to Ori Martin for acts committed by SLM. Ori Martin also argued that the General Court erred in the assessment of the fine imposed by the Commission. SLM raised similar pleas to Ori Martin in seeking a reduction of the fine imposed on SLM for both its individual liability and as a result of its joint liability. The ECJ dismissed the appeal, finding that the General Court had not erred in its assessment of joint liability and / or the fine imposed on the two companies. In theTrafilerie Meridonali (TM) case, TM challenged the General Court’s judgment which found that TM participated in the cartel. TM also challenged the General Court’s assessment of TM’s ability to pay a fine. The ECJ also dismissed this appeal, concluding that TM’s appeal was inadmissible because TM was asking the ECJ to interpret the facts and evidence differently from the General Court. In any event, the ECJ found that the General Court made no error in assessing TM’s ability to pay the fine, nor in its calculation of the fine imposed on TM.

State Aid

General Court upholds decision that no State aid involved in fees charged at Port of Split. On 14 September 2016, the General Court handed down a judgment dismissing an appeal against a Commission decision that found there was no State aid involved in the fees set by the Split Port Authority. Trajektna luka Split (TLS), the private operator of the passenger terminal at the Port of Split in Croatia, had complained to the Commission that the Split Port Authority was granting State aid to a public ferry operator by setting low fees for the provision of port services to domestic traffic. In its judgment, the General Court found that the Commission had not erred in concluding that the practice of setting low fees for the provision of port services to domestic traffic did not involve any transfer of state resources on the basis that the financial resources flowed directly between private entities (TLS and its customers), without passing through a public or private body designated by the State authorities to administer the transfer. The General Court confirmed that this conclusion was not affected by the fact that TLS had been granted exclusive rights to provide port services, within the meaning of Article 106(1) of the Treaty on the Functioning of the European Union (TFEU). In its judgment, the General Court also dismissed arguments that the Commission had breached essential procedural requirements by not initiating an in-depth State aid investigation and by not making further use of its powers to seek information. The General Court also found that the Commission had not breached its duty to provide adequate reasons for its decision. 

UK Competition

CMA full text of decision on acquisition by Ever 2479 of Eurobond Laminates. On 12 September 2016, the Competition and Markets Authority (CMA) published the full text of its decision to approve the completed acquisition by Ever 2479 Limited (Ever 2479) of Eurobond Laminates Limited (Eurobond Laminates). The decision not to refer the merger for a Phase II investigation was announced on 12 August 2016.

CMA consults on final undertakings in relation to Ladbrokes / Coral merger. On 12 September 2016, the CMA announced a public consultation on final undertakings offered by Ladbrokes plc (Ladbrokes) and Gala Coral Group Limited (Gala Coral) in relation to the anticipated merger between Ladbrokes and certain businesses of Gala Coral. After an in-depth Phase II investigation, the CMA has found that the parties are the second and third largest bookmakers in the UK by number of betting shops, and identified 642 local areas where the merger may be expected to result in a substantial loss of competition. To address these concerns, the CMA has decided that the sale of a Ladbrokes or Gala Coral betting shop, to one or more suitably qualified up-front purchasers, must occur in each of the local areas where the CMA has identified a competition concern. The proposed divestment remedy is expected to result in the sale of 350 to 400 betting shops. Ladbrokes and Gala Coral have agreed to the divestment remedy, which is conditional on the CMA approval of the divestment package of betting shops, and the proposed purchaser or purchasers. The CMA invites written comments on the draft final undertakings by 25 September 2016.

CMA full text of reference decision on acquisition by VTech of LeapFrog. On 16 September 2016, the CMA published the full text of its decision to refer the acquisition by VTech Holdings Limited (VTech) of LeapFrog Enterprises Inc (LeapFrog) to a Phase II investigation unless undertakings in lieu were offered. Given that VTech did not offer any undertakings, the merger was referred for a Phase II investigation. On the same day the CMA published the full text of its decision to refer the merger for a Phase II investigation, the CMA published an issues statement as part of its ongoing Phase II investigation. The statement sets out the key issues that the CMA is likely to take into consideration in reaching its decision on the merger. In particular, the statement sets out the factors relevant to the CMA’s assessment of the market definition and appropriate counterfactual. It also identifies four possible theories of harm based on loss of actual or potential competition and loss of future competition in innovation. The CMA invites responses to the issues statement by 30 September 2016.

Speeches & Publications

Commission provisional findings in e-commerce sector inquiry. On 15 September 2016, the Commission published a preliminary report setting out the provisional findings of its sector inquiry into the e-commerce sector. The purpose of the e-commerce sector inquiry is to enable the Commission to gather evidence on potentially anti-competitive practices in the sector and the underlying rationale for the use of such practices. The preliminary report covers the Commission’s preliminary findings (which are based on the responses it received to a large number of questionnaires sent to relevant stakeholders) on e-commerce in goods and e-commerce in digital content. The Commission has asked for responses to its preliminary report by 18 November 2016. It expects to publish the final report in the first quarter of 2017.