Merger control: Commission publishes study on minority shareholdings in merger control
On 14 October 2016, the Commission published a support study concerning the review of EU Merger Regulation on minority shareholding ("study"). The purpose of the study is to provide DG Competition with additional information on the topic of acquisitions of non-controlling minority shareholdings from the perspective of both competition and corporate law and practice in different jurisdictions.
The study examines two interrelated topics. Firstly, it analyses the merger control regimes in the United Kingdom, United States, Germany, Austria, Japan and Brazil, which include the review of acquisitions of non-controlling minority shareholdings from a competition perspective. Secondly, the study examines the rights typically attached to different levels of minority shareholding (in law and in practice) in the United Kingdom, United States, Germany, France and the Netherlands. The study finds that in all the countries examined, there were very few cases involving acquisitions of non-controlling minority shareholdings that actually raised competition concerns. Further, in view of the very low number of problematic acquisitions of non-controlling minority shareholdings, the study concludes that any administrative burden that a merger control regime for non-controlling minority shareholdings places on business must not be disproportionate, while still ensuring that the few problematic cases that arise are caught.
The study recommends that if the Commission makes a legislative proposal introducing a system for the review of non-controlling minority acquisitions at the EU level, such a regime should address a number of issues. These issues should include a threshold triggering the review of acquisitions of the minority shareholding, a safe harbor, and guidance from the Commission for determining whether a minority shareholding transaction should be reported. Source: Support study for impact assessment concerning the review of Merger Regulation regarding minority shareholdings, Final report
Competition (Sweden): Swedish Competition Authority investigates potential unlawful coordination on market for building materials
On 6 October 2016, the Swedish Patent and Market Court decided, upon application by the Swedish Competition Authority ("SCA"), that the SCA may inspect the premises of the companies Ifö Sanitär AB, Geberit AB, Bauhaus & Co KB, K-Rauta AB, and Hornbach Byggmarknad AB. The Court allowed inspections for the purposes of determining whether these companies have infringed any of the prohibitions in Chapter 2, Article 1 or 7 in the Swedish Competition Act, or Article 101 or 102 in the TFEU. Specifically, the SCA is investigating whether the companies by agreement or concerted practice have coordinated, between themselves and with other resellers, concerning end customer prices in Sweden relating to Ifö's products within the sanitary ware and adjacent product market segments.
The SCA has stated that there is reason to believe that an infringement has been committed based on material collected by the SCA from the relevant companies. The SCA started its investigation following a tip in May 2015, in which Ifö was alleged to have applied unlawful minimum prices towards Ifö's retailers relating to the sales of Ifö's commode "Ifö Sign 6860" to customers. During the SCA's investigation, the SCA required different market players to submit information and material relating to Ifö's and other retailers' pricing of the commode "Ifö Sign 6860". Based on this information, the SCA suspects that, inter alia, Ifö and three of Ifö's largest retailers developed a price fixing scheme for end customer prices for several porcelain product from Ifö within the sanitary ware product segment.
The material in the SCA's possession also indicates that a larger number of resellers and adjacent product markets may be covered by the price coordination and that the alleged infringement have continued for several years.
According to the Court decision, site inspections were scheduled for 11-14 October 2016. On 13 October 2016 the SCA confirmed in a press release that it had inspected the premises of companies operating on the market for building material. In the press release the SCA stated that the continued investigation will determine whether there are grounds for the suspicions that the companies may have infringed the competition law. Source: Swedish Competition Authority Press Release 13/10/2016 and Swedish Patent and Market Court Decision 06/10/2016 (in Swedish)