Merger Control
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Merger Control Fourth Edition Contributing Editors: Nigel Parr & Catherine Hammon Published by Global Legal Group CONTENTS Preface Nigel Parr & Catherine Hammon, Ashurst LLP Albania Renata Leka, Boga & Associates 1 Argentina Julián Peña & Federico Rossi, Allende & Brea 8 Australia Sharon Henrick, Wayne Leach & Michael Robert-Smith, King & Wood Mallesons 13 Brazil José C. M. Berardo, Bruno B. Becker & Guilherme Morgulis, BMA – Barbosa, Müssnich, Aragão 24 Canada Randall J. Hofl ey, Micah Wood & Kevin H. MacDonald, Blake, Cassels & Graydon LLP 37 Colombia Alfonso Miranda Londoño, Esguerra Barrera Arriaga S.A. 45 Cyprus Anastasios A. Antoniou & Aquilina Demetriadi, Anastasios Antoniou LLC 53 Denmark Olaf Koktvedgaard & Erik Kjær-Hansen, Bruun & Hjejle 60 Finland Katri Joenpolvi, Leena Lindberg & Jarno Käkelä, Krogerus 67 France Pierre Zelenko & Daniel Vasbeck, Linklaters LLP 77 Germany Peter Stauber, Noerr LLP 99 Hungary Márton Horányi & Andrea Jádi Németh, bpv JÁDI NÉMETH Attorneys at Law 109 India Farhad Sorabjee & Amitabh Kumar, J. Sagar Associates 119 Indonesia Yogi Sudrajat Marsono & HMBC Rikrik Rizkiyana, Assegaf Hamzah & Partners 123 Israel Dr David E. Tadmor & Shai Bakal, Tadmor & Co. Yuval Levy & Co., Attorneys-at-Law 130 Japan Kentaro Hirayama, Morrison Foerster / Ito & Mitomi 141 Kazakhstan Aldash Aitzhanov, Nikolay Radostovets & Kuanysh Kholtursunov, JSC Center for Development and Protection of Competition Policy 149 Kosovo Sokol Elmazaj & Delvina Nallbani, Boga & Associates 155 Macedonia Jasmina I. Jovanovik & Dragan Dameski, Debarliev, Dameski & Kelesoska Attorneys at law 160 Malta Ron Galea Cavallazzi & Lisa Abela, Camilleri Preziosi 167 Morocco Amin Hajji & Aïcha Brahma, Hajji & Associés 170 New Zealand Grant David, Neil Anderson & Melissa Hay, Chapman Tripp 175 Norway Jan Magne Juuhl-Langseth & Erik Martinius Klevmo, Advokatfi rmaet Simonsen Vogt Wiig AS 182 Portugal António Mendonça Raimundo & Sónia Gemas Donário, Albuquerque & Associados 194 Romania Silviu Stoica & Mihaela Ion, Popovici Nițu & Asociații 201 Singapore Kala Anandarajah, Dominique Lombardi & Tanya Tang, Rajah & Tann Singapore LLP 215 Spain Jaime Folguera Crespo, Raquel Lapresta Bienz & Tomás Arranz Fernández-Bravo, Uría Menéndez 223 Sweden Pontus Lindfelt, Mina Gregow & Hanna Wingren, White & Case 232 Switzerland Franz Hoffet, Marcel Dietrich & Gerald Brei, Homburger AG 242 Turkey Gönenç Gürkaynak & Öznur İnanılır, ELIG, Attorneys-at-Law 249 Ukraine Igor Svechkar & Alexey Pustovit, Asters 259 United Kingdom Nigel Parr & Emily Clark, Ashurst LLP 264 USA Christopher A. Williams & Paul S. Jin, Wilson Sonsini Goodrich & Rosati 279 France Pierre Zelenko & Daniel Vasbeck1 Linklaters LLP Overview of merger control activity during the last 12 months Further to the Law of Modernisation of the Economy dated 4 August 2008 (the “LME”), the French Competition Authority (the “FCA”) has been in charge of French merger control since 2 March 2009, when it took over this responsibility from the DGCCRF (a directorate reporting to the Minister of the Economy). It issued useful Guidelines in December 2009 (the “2009 Guidelines”), of which it published an updated version in July 2013 (the “2013 Guidelines”), each time organising a broad and open consultation of all stakeholders, including businesses, economists and law fi rms (together the “Guidelines”). The main provisions of the Guidelines are in line with the practice of the European Commission (the “EU Commission”), but they also contain some differences. Key features of the 2013 Guidelines The 2013 Guidelines did not completely overhaul the 2009 Guidelines but updated them by taking into account the FCA’s decision-making practice over the last four years. The new elements are relatively limited in scope and mainly concern the following points: • additional guidance is provided on the pre-notifi cation procedure and cases in which pre-notifi cation contacts with the FCA may be particularly useful; • the conditions for the application of the simplifi ed procedure are further specifi ed; • the FCA clarifi es its approach with regard to the defi nition of relevant markets and the substantive assessment of mergers, with a stronger emphasis being put on economic analysis and quantitative tests; and • the FCA details its policy as to the nature and implementation of remedies and publishes standard models for the transfer of assets and trustee mandates. Statistics The summary table below shows relevant indicators of the FCA’s activity in the period from 2012 to 2014: FCA statistics 2012-2014 2012 2013 2014 Notifi cations 1932 2143 1894 Referrals by the EU Commission 25 46 57 Decisions 185 201 200 Phase II openings 38 29 110 Conditional clearances (overall) 11 7 10 Conditional clearances after Phase I 911 512 913 GLI - Merger Control Fourth Edition 77 www.globallegalinsights.com © Published and reproduced with kind permission by Global Legal Group Ltd, London Linklaters LLP France 2012 2013 2014 Conditional clearances after Phase II 214 215 116 Prohibition decisions 000 The following comments can be made regarding this table: • Based on the number of decisions issued, the merger control activity of the FCA in 2014 remained at approximately the same level as in 2013. However, the number of notifi cations decreased in 2014, falling below the levels of 2013 and 2012. • The number of Phase II decisions slightly decreased in 2014. While the FCA opened two or three Phase II investigations every year from 2010 to 2013, it only reviewed a single Phase II case in 2014, representing 0.5% of all merger decisions (the corresponding fi gure amounted to 1% in 2013, 1.6% in 2012, and 0.9% in 2011). • The number of conditional clearances increased in 2014 compared to 2013, both in absolute value and in percentage. While conditional clearances only reached a rate of around 3.5% of all merger decisions in 2013, they represented 5% in 2014. • Since 2009, the EU Commission has made four referral decisions under Article 917 of the EC Merger Regulation No 139/2004 of 20 January 2004 (the “ECMR”) and 13 referral decisions under Article 4§418 of the ECMR to France. That statistic could give rise to several interpretations, the one favoured by the FCA being that it proves the EU Commission’s trust in its role as national merger control authority. • Until now, the FCA has never blocked a notifi ed merger since it took over responsibility for French merger control on 2 March 2009. However, it is interesting to note that, in the Kingfi sher/Mr. Bricolage case referred to by the EU Commission, in order to alleviate the competition concerns identifi ed by the FCA, the buyer Kingfi sher intended to submit commitments that were deemed incompatible with the principles of the transaction by Mr. Bricolage, which had to give its prior agreement on the commitments under the terms of the parties’ agreement. In light of this disagreement, the parties decided to abandon the deal. This case illustrates that, even in the absence of a proper prohibition decision, the FCA may de facto prevent a deal from proceeding where the commitments necessary are such that they render the transaction unattractive to the parties.19 New developments in jurisdictional assessment or procedure There have been some recent developments in terms of jurisdictional assessment and procedure. For instance, in the 2013 Guidelines, the FCA provided additional guidance on the pre-notifi cation procedure and the simplifi ed procedure. In addition, most signifi cantly, the FCA imposed several substantial fi nes on undertakings in the period from 2011 to 2014 for their failure to implement commitments they had given to secure clearance, as well as for their failure to notify mergers to the FCA (“gun-jumping”). According to the President of the FCA, Bruno Lasserre, several more proceedings are currently pending. 20 Warehousing As regards the issue of warehousing, it appears that the FCA follows EU decision-making practice and case-law. The Guidelines21 refer to Article 3, paragraph 5 of the ECMR and mention the EU Commission’s approach, as well as the Odile Jacob22 ruling in which the EU General Court addressed the issue of warehousing. The Guidelines also contain a specifi c provision23 regarding warehousing in the retail sector which specifi es that the FCA takes a more cautious line with respect to intermediate transactions where the identity of the GLI - Merger Control Fourth Edition 78 www.globallegalinsights.com © Published and reproduced with kind permission by Global Legal Group Ltd, London Linklaters LLP France ultimate purchaser is unknown and where there are no clear and binding agreements for the resale. This was illustrated by a transaction that was presented by the parties as provisional but was assessed by the FCA as a concentration in its own right.24 Pre-notifi cation procedure The pre-notifi cation procedure enables the notifying parties to submit, prior to the formal merger fi ling, either a presentation of the contemplated transaction (describing the parties, the intended transaction, the relevant markets, the competitors and the market shares of the parties) or a preliminary draft of the notifi cation form to the FCA. The 2013 Guidelines emphasise the importance of the pre-notifi cation phase and aim at facilitating pre-notifi cation contacts: • The 2013 Guidelines specify that the notifying parties may engage in pre-notifi cation contacts irrespective of the degree of advancement of the contemplated transaction. • In the 2013 Guidelines the FCA commits to providing the notifying parties within