In a spectacular turn, on September 3, 2024, the Court of Justice of the European Union annulled the European Commission’s decision to review the acquisition of Grail by Illumina. The Commission had previously asserted its authority to examine the merger under Article 22 of the EU Merger Regulation, despite the transaction not meeting the EU or national turnover thresholds for review.
This ruling is significant because it challenges the Commission’s ability to review transactions that do not meet the relevant EU or national thresholds but are referred by EU Member States. This could impact how future mergers are reviewed within the EU, as the Commission is likely to find alternative ways to review transactions that do not meet the relevant EU or national thresholds.
US agencies are increasingly scrutinizing consummated mergers from years past, including Live Nation’s purchase of Ticketmaster and Meta’s acquisitions of Instagram and WhatsApp.
Reports indicate that, over the past three years, companies have abandoned 37 deals in the face of Federal Trade Commission pressure.
Merger activity in oil and gas markets remains high, and although agencies are scrutinizing these deals, they engaged in minimal enforcement activity this quarter.
EUROPEAN UNION
Court of Justice of the European Union Advocate General Nicholas Emiliou issued his opinion in the Illumina/Grail case, concluding that Article 22 of the EU Merger Regulation is not the European solution for dealing with “killer acquisitions.”
The European Commission (EC) issued a competition policy brief on non-price competition in EU merger control, noting that it is increasingly evaluating non-price competition parameters alongside traditional price effects for its merger reviews.
The EC suspects Kingspan to have intentionally, or negligently, provided incorrect, incomplete and misleading information while it investigated the company’s planned acquisition of Trimo in 2021.
UNITED KINGDOM
The Digital Markets, Competition and Consumers Act will grant the Competition & Markets Authority with powers to enforce the new digital markets competition regime and will apply to firms that are designated as having strategic market status.
In May 2024, the European Commission published a Competition Policy Brief classifying certain agreements related to labor markets as serious antitrust infringements. According to the Commission, so-called wage-fixing and no-poach agreements can only be justified in exceptional cases. The Brief follows the first unannounced inspections by the Commission concerning labor market agreements in Germany and Spain in the online meal ordering and delivery industry. It is vital that companies operating in Europe focus on educating their recruiting and human resources departments on antitrust rules to avoid severe fines.
LABOR MARKETS ON THE AGENDA
The Commission’s Competition Policy Brief could be interpreted as a warning for companies exposed to tight labor markets: Restrictive labor market agreements between competitors will be taken as seriously as price-related cartels. Companies must also bear in mind that competitors for labor are not limited to those companies with which they compete to sell products or services. It is sufficient that they compete for the same employees.
Given that restrictions on competition in labor markets mainly affect national markets, the main investigators will be (and already are) national competition authorities.
WHAT AGREEMENTS ARE CAUGHT
The following types of labor market agreements are considered potentially problematic:
No-poach agreements: In some cases, employers (in writing or orally) agree not to steal employees from each other. Such agreements can take different forms: In the case of nonsolicitation or no-cold-calling agreements, companies agree not to actively approach the other companies’ employees with a job opportunity. More far-reaching are no-hire agreements, i.e., companies agree not to hire (actively or passively) employees of other parties to the agreement. As a matter of principle, all forms of no-poach agreements in the Commission’s view constitute market sharing (supply-source sharing) within the meaning of Article 101(1)(c) of the Treaty on the Functioning of the European Union (TFEU) and therefore form a competition risk to be sanctioned.
Wage-fixing agreements: Sometimes, employers agree to fix wages or other types of compensation or benefits for their respective employees. The Commission considers these agreements akin to price fixing within the meaning of Article 101(1)(a) of the TFEU.
The Commission does acknowledge that no-poach agreements may pursue a legitimate objective by incentivizing companies to invest in training their own employees without fearing that they would be later lured away by competitors, and by preventing employees from taking non-patent intellectual property rights (such as trade secrets) to competitors. However, both types of agreements “reveal a sufficient degree of harm to competition” such that the Commission does not see a need to examine their effects. Due to their alleged negative impact on employees’ wages, firm productivity and innovation, they are regarded “by their very nature” as harmful.
The above does not apply, however, to collective bargaining agreements between organizations representing employers and employees, which are explicitly outside the scope of the Commission’s Competition Policy Brief. The Court of Justice of the European Union (CJEU) recognized that certain restrictions of competition are inherent in collective agreements, which [...]
In a significant development for French merger control, on May 2, 2024, the French Competition Authority (FCA) applied the jurisprudence laid down in the recent Towercast case to an alleged anticompetitive agreement matter in the meat-cutting sector.
In its Towercast ruling (C-449/21), the Court of Justice of the European Union (CJEU) held that a merger which is not notifiable (i.e., being below the European and national merger control thresholds) and which has not been subject to a referral under Article 22 of the Merger Regulation 139/2004 of 2004 may be challenged a posteriori by the European Commission or a national competition authority if an abuse of dominant position resulting from the merger but detachable from it can be established.
Less than a week after the Towercast ruling, the Belgian Competition Authority applied the principles set out by the CJEU by opening an ex officio investigation into the acquisition of the edpnet group by Proximus, ordering interim measures in June 2023 to ensure the continuity of edpnet’s activities and its operational and commercial independence from Proximus, ultimately leading to the sale of edpnet’s activities post-closing in November 2023. The president of the FCA, Benoît Cœuré, said that this instrument could “now be used, bearing in mind that its conditions of use are restrictive”. This has now been confirmed by the FCA’s May 2 decision, on which Cœuré said was an “important clarification for merger control”, particularly regarding Article 101 TFEU.
The Federal Trade Commission (FTC) and US Department of Justice have begun implementing the 2023 Merger Guidelines in their enforcement actions
During a virtual workshop, the FTC highlighted its focus on private equity (PE) acquisitions of healthcare service providers and expressed concerns about PE in healthcare
Artificial intelligence’s antitrust implications continue to draw FTC scrutiny
The European Commission (EC) used its super-simplified procedure in about one-third of all merger decisions in Q1 2024
EC regulators are taking an increasingly vigilant approach to merger control review to ensure market dynamics remain pro-competitive and pro-consumer
In the first half of 2023, antitrust enforcers remained remarkably busy both in the United States (US) and across the European Union (EU). The US Department of Justice’s (DOJ’s) Antitrust Division (Division) and the Federal Trade Commission (FTC) have continued their aggressive and novel effort to drag antitrust enforcement into the labor markets. The DOJ Procurement Collusion Strike Force (PCSF) has pursued its crackdown on antitrust and fraud involving government procurement with a number of recent cases. And DOJ has pushed the boundaries under Section 2 of the Sherman Act—both by revitalizing the criminal provisions of the law and by pursuing “attempts” to monopolize criminally. The European Union has also kept the pressure on those doing business overseas, imposing significant fines in recent matters and upgrading its online leniency program to make it easier for companies to report wrongdoing.
In this installment of Cartel Corner, we examine this continued aggressiveness toward antitrust enforcement. While these government enforcement efforts have not always been successful, they have nonetheless reframed the landscape for many companies and individuals. What was once thought of as a civil antitrust violation at worst—or no violation at all—is now often pursued criminally. And antitrust enforcers are speaking in more strident tones as they attempt to remake, in certain ways, the way companies do business in the United States and abroad.
Whether antitrust enforcers are ultimately successful remains to be seen. Nonetheless, the trend is real, and it is one that all companies should be prepared to address in the weeks and months to come.
The European Commission recently adopted and published the revised Research and Development Block Exemption Regulation and Specialisation Block Exemption Regulation, together referred to as the Horizontal Block Exemption Regulations (HBERs), accompanied by the revised Horizontal Guidelines (HGLs). The adoption of the new HBERs and HGLs comes after the conduct of a similar review process and the adoption of the Vertical Block Exemption Regulation and Vertical Guidelines in May 2022. This revised horizontal package seeks to provide businesses with up-to-date guidance to help them self-assess the compatibility of their horizontal cooperation agreements with EU competition law.
The Competition and Markets Authority (CMA) blocked what would have been the largest deal in the gaming industry to date on April 26, 2023. This decision brings attention to various significant trends, including:
In dynamic markets, regulators are focusing in on whether a deal harms or could harm future competition (i.e., innovation based on predications raising significant uncertainties). The CMA speculated that the deal would “alter the future of the fast-growing cloud gaming market” and preferred to maintain the status quo with the block.
Regulators are focusing more and more on non-horizontal relationships and supply chain issues, particularly if one party is vertically integrated. Whereas in the past, concerns could often be remedied via behavioral commitments, more and more deals with a vertical component are now being outright prohibited.
While the industry expects the European Commission (Commission) to accept the behavioral remedy (license package) offered by Microsoft, this case shows once again that the CMA and the Commission can reach different conclusions when reviewing the same transaction.
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