EU Mergers

Phase I Mergers

  • M.8555 AES / SIEMENS / FLUENCE ENERGY / JV (10 October 2017)
  • M.8590 SOGECAP / CARDIF / DIVERSIPIERRE / HORIZON (10 October 2017)
  • M.8624 MICHAEL KORS / JIMMY CHOO (10 October 2017)
  • M.8628 ENECO / RENAULT / JEDLIX (11 October 2017)
  • M.8645 ADVENT / WILLIAMS LEA (10 October 2017)

EU Competition

Commission carries out dawn raids regarding access to bank account information. On 6 October 2017, the European Commission (Commission) announced that on 3 October 2017, alongside national competition authorities, it made unannounced inspections concerning online access to bank account information by competing service providers. The inspections result from the Commission’s concern that the entities in question are involved in anti-competitive activities aimed at excluding non-bank owned providers of financial services by preventing access to customer account data, despite customer consent.

EU Mergers

Commission refers CVC’s acquisition of La Gardenia and Limoni to Italian competition authority. On 12 October 2017, the Commission published its decision to refer the acquisition by CVC Capital Partners SICAV-FIS S.A (CVC) of La Gardenia Beauty S.p.A. (La Gardenia) and Limoni S.p.A. (Limoni) to the Italian Competition and Consumer Authority (M.8531). Limoni and La Gardenia operate in distributing perfumes and cosmetics at the retail level, and since 2013 have traded together as Leading Luxury Group.

Commission publishes approval of Dow Chemical’s merger with DuPont. On 12 October 2017, the Commission published its decision to approve The Dow Chemical Company’s (Dow Chemical) merger with E.I. du Pont de Nemours and Company (DuPont) (M.7932). The transaction was cleared in March 2017 following the partial divestment of DuPont’s pesticide business and research and development capabilities.

Commission publishes approval of Thermo Fisher Scientific’s acquisition of Patheon. On 12 October 2017, the Commission published its decision to approve Thermo Fisher Scientific Inc.’s acquisition of Patheon N.V., a Dutch contract development and manufacturing organisation active in the pharmaceutical sector (M.8541). The transaction was cleared in August 2017.

State Aid

Advocate General hands down opinion on Greek recovery of unlawful state aid from United Textiles. On 10 October 2017, Advocate General Sharpston handed down an opinion concerning a Commission action against Greece for failure to recover unlawful state aid granted to United Textiles. The aid took the form of a guarantee and the rescheduling of social insurance debts, and in 2012 the Commission decided that this was unlawful and required Greece to recover €30.57 million. In December 2015, the company’s insolvency administrator informed the Commission that efforts were being made to re-launch the business. On 30 June 2016, the Commission brought an action in the European Court of Justice (ECJ) stating that Greece had failed to recover the unlawful aid and should therefore complete the insolvency proceedings. Although Advocate General Sharpston considered that in principle a Member State re-launching a business in the circumstances can be envisaged, she stated that such action must comply with certain minimum conditions. As Greece failed to notify the Commission and failed to take all measures necessary to recover the aid in the prescribed period, the Advocate General opined that the ECJ should declare that it has failed to fulfil its obligations.

Commission approves rail promotion funding in Denmark. On 12 October 2017, the Commission announced that it had approved the extension of a Danish public funding scheme to encourage freight transport to be carried by rail instead of roads. With a budget of €7.5 million and lasting from 2018 to 2020, the scheme intends to promote an environmentally friendlier transport mode, furthering EU environmental and transport objectives, whilst maintaining competition in the EU. It was concluded that the scheme is compatible with EU state aid rules, in particular the Commission Guidelines on State aid for railway undertakings.

Commission approves Portuguese Novo Banco restructuring and sale. On 11 October 2017, the Commission approved, under EU state aid rules, Portuguese aid for the sale of Novo Banco, which will allow its new private owner to restructure the bank and ensure its long-term health without distorting competition. The announcement follows the August 2014 decision by Portugal to put Banco Espírito Santo (BES) into resolution under the Portuguese resolution framework and determine the strategy for its resolution. Resolution measures are applied to credit institutions by Banco de Portugal when they are at risk of not complying with their authorisation requirements which in turn poses a risk to depositors and taxpayers. To enable an orderly resolution, Portugal designed a number of support measures, including, among other things, state aid for the transfer of certain BES assets to bridge bank Novo Banco. Portugal has agreed to sell Novo Banco to private equity fund Lone Star.

UK Competition

CAT publishes order regarding hearing in MasterCard damages action. On 11 October 2017, the Competition Appeal Tribunal (CAT) published an order containing case management directions in four separate damages actions against MasterCard brought under s.47A of the Competition Act 1998. MasterCard has lodged applications disputing the CAT’s jurisdiction in respect of each claim, in particular arguing that they are time barred. The applications in all the cases will be heard together on the first available date after 19 March 2018.

BEIS appoints new members to CMA panel. On 10 October 2017, the Department for Business, Energy & Industrial Strategy (BEIS) announced the appointment of 16 new members to the panel of the Competition and Markets Authority (CMA). Panel members are responsible for reviewing Phase 2 mergers, market investigations and references, and scrutinising cases under the Competition Act 1998.

UK Mergers

CMA releases issues statement on 21st Century Fox's proposed acquisition of remaining Sky shares. On 10 October 2017, as part of its Phase 2 investigation the CMA published an issues statement on 21st Century Fox's proposed acquisition of Sky Plc. In terms of media plurality, the document identifies a reduction in the range of viewpoints available and an increase in the Murdoch Family Trust’s influence on public opinion and politics as theories of harm. In terms of broadcasting standards, the document identifies a lack of genuine commitment to broadcasting standards as a theory of harm. The CMA invites responses by 24 October 2017 and hopes to publish its provisional findings in December 2017.

CMA to review undertakings in lieu in acquisition of Tesco Opticians by Vision Express. On 11 October 2017, the CMA announced that it will consider undertakings in lieu of a Phase 2 investigation in Vision Express (UK) Limited’s (Vision Express) completed acquisition of Tesco Opticians. A Phase 2 investigation was announced on 28 September 2017 after three local areas were identified where Vision Express would not face sufficient competition following the merger. The CMA now considers that the undertakings offered by Vision Express, or a modified version of them, may be acceptable and the CMA will now consult on the text of the proposed undertakings.

CMA clears merger of Dawn Meats’ and Dunbia’s UK businesses. On 10 October 2017, the CMA published its decision to approve the anticipated joint venture between the Dawn Meats group (Dawn Meats) and the Dunbia group (Dunbia). Although Dawn Meats and Dunbia process meat for various food products and operate similar facilities, the CMA cleared the merger because they do not compete strongly for the purchase of livestock, and face competition from alternative suppliers in the supply of processed and unprocessed meat. The merger was also approved by Ireland’s Competition and Consumer Protection Commission.

CMA gives Just Eat’s acquisition of Hungryhouse provisional clearance. On 12 October 2017, the CMA extended its timetable and published its initial findings in the Phase 2 investigation into the anticipated acquisition by Just Limited (Just Eat) of Hungryhouse Holdings Limited (Hungryhouse). While the parties are perceived to be close competitors, the CMA has found that in practice the parties face competitive constraints from dynamic market entrants like Deliveroo and UberEats and other direct ordering methods, and that Hungryhouse is a weak competitor.The statutory deadline for the CMA to report is now 30 November 2017.