On December 5, 2013, the Competition Bureau issued a No-Action Letter (NAL) clearing Thermo Fisher Scientific Inc.’s proposed acquisition of Life Technologies Corporation. The Bureau issued this clearance based, at least in part, on a remedy obtained by the European Commission (EC) in connection with the proposed acquisition in Europe.
Both Thermo Fisher and Life Technologies produce and supply life sciences products, including laboratory instruments and consumables, globally, including within Canada, the United States and Europe. Thermo Fisher’s proposed acquisition was subject to competition review in each of these jurisdictions.
As a condition of approving the merger in Europe, the EC required Thermo Fisher to divest businesses supplying a variety of products used in clinical and research applications in the life sciences sector. Stating that it “worked closely” with its foreign counterparts, the Bureau was satisfied that the divestiture of these businesses was sufficient to address concerns that the acquisition would substantially lessen or prevent competition in the sale of the relevant products in Canada.
The Bureau’s willingness to clear mergers in Canada based, at least in part, on remedies and divestitures obtained by foreign antitrust authorities, particularly those in the United States and Europe, has been demonstrated in connection with a number of recent mergers, including, among others, United Technology Corporation’s acquisition of Goodrich Corporation (2012), Nufarm Limited’s acquisition of AH Marks Holding Limited(2010), Schering-Plough’s acquisition of Organon BioSciences N.V. (2008) and Thomson Corporation’s acquisition of Reuters PLC (2008).
The Bureau’s consideration and reliance on remedies obtained in other jurisdictions to resolve competition concerns in Canada is but one aspect of the international collaboration taking place between the Bureau and other antitrust authorities. The Bureau states that it is increasingly “standard practice” to consult its foreign counterparts, particularly those in the United States and Europe, in addition to consulting a wide range of industry participants within Canada when reviewing a proposed acquisition with cross-border effects.