Merger control: Request for a preliminary ruling by the CJEU concerning "gun-jumping" criteria published in the Official Journal On 13 February 2017, the Official Journal published details of a request by a Danish court for a preliminary ruling by the Court of Justice of the European Union ("CJEU") concerning the application of Article 7(1) in Regulation No 139/2004 on the control of concentrations between undertakings. According to Article 7(1), so-called "gun-jumping" is prohibited, i.e., it is illegal to implement a concentration between undertakings before the concentration has been approved by the authorities. The background for the request is a case concerning a merger between EY and KPMG Denmark. Before the merger, KPMG Denmark had a cooperation agreement with KPMG International. After EY and KPMG Denmark agreed to merge, KPMG Denmark left the cooperation agreement before the merger was approved by the competition authorities. The Danish Competition Council found that termination of the cooperation agreement constituted a prohibited implementation of the merger. The Danish court has requested the CJEU to opine on the criteria to be used when assessing whether the conduct or actions of an undertaking are covered by the gun-jumping prohibition. In particular, the Danish court asks whether the termination of a cooperation agreement can constitute an infringement of the prohibition. Source: Case C-633/16, Ernst & Young, Official Journal C 46/17, 13 February 2017 and Danish Competition and Consumer Authority Press Release 17/12/2014 (in danish)

Competition: Commission warns member states for not having implemented the Damages Directive in time The Commission has sent letters of formal notice to the 20 EU member states which have failed to implement the Directive 2014/104/EU on certain rules governing actions for damages under national law infringements of the competition law provisions of the Member States and of the European Union (the "Damages Directive"). The deadline for transposing the Damages Directive into the member states' legal systems expired on 27 December 2016. The Commission has now sent letters of formal notice to the 20 member states which have failed to implement the Damages Directive. The understanding is that only Denmark, Finland, Hungary, Italy, Lithuania, Luxembourg and Slovakia have communicated full transposition to the European Commission. Source: Commission Website on the Damages Directive 

Competition (Sweden): Swedish Patent and Market Court of Appeal rejects request for a preliminary ruling by the CJEU in cartel case The Swedish Patent and Market Court of Appeal has rejected a request by Capio, Aleris and Hjärtkärlgruppen for a preliminary ruling by the CJEU. In 2015, the Stockholm District Court (now the Swedish Patent and Market Court) fined the three healthcare companies for bid-rigging in breach of both Swedish and EU competition law. The companies have now, before the Swedish Patent and Market Court of Appeal, requested a preliminary ruling by the CJEU. The Swedish Patent and Market Court of Appeal concluded that the agreements between the undertakings in question were not able to affect trade between the Member States. Nevertheless, considering that the Swedish Competition Act is based on and must be interpreted in light of EU competition law, the questions could as such be referred to the CJEU for a preliminary ruling. However, the Swedish Patent and Market Court of Appeal rejected the request, stating that according to case law from the CJEU, it is for the national court to make a concrete and individual examination of the agreements in question and that the CJEU has already sufficiently outlined the principles for that assessment. Therefore, the Swedish Patent and Market Court of Appeal found that there was no need to refer the questions to the CJEU. Source: Case PMT 7497-16, Aleris Diagnostik AB, Capio St Görans Sjukhus AB and Hjärtkärlgruppen i Sverige AB, Decision 18/1/2017 (not available online)

In addition, kindly note the following merger control decisions by the Commission which are published on the website of the Commission’s Directorate-General for Competition:

• Commission approves acquisition of UK holiday parks operator Parkdean by Onex

• Commission approves acquisition of joint control over Getec Energie companies by EQT Fund Management and Getec Energie Holding

• Commission approves acquisition of BSN by SCA