Antitrust in focus

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This is the first edition of our new monthly publication, featuring the A&O Antitrust Group’s selection of antitrust news from across the globe. It is not intended to be comprehensive – instead it is our take on the developments we think are most interesting to your business.

This month’s editor - Antonio Bavasso, partner and Global Co-Head of the Group – has selected:

General

  • UK blocks Sainsbury’s/Asda mega-retail merger
  • More EU enforcement action against territorial restrictions –  this month video games
  • EC charges car manufacturers with restricting competition in innovation
  • Bid-rigging fines and enforcement in Denmark, France, Hungary, Indonesia, Latvia, Portugal, Russia, South Korea, the UK and the U.S.
  • GE fined for incorrect information in a merger filing

Consumer & retail

  • Spanish CNMC fines tobacco companies for sharing real-time sales data

Digital/TMT

  • EU expert report on digital markets calls for vigorous antitrust enforcement

Financial Services

  • EU syndicated lending report identifies antitrust risk areas
  • UK CMA recommends major overhaul of audit market

Industrial & Manufacturing

  • U.S. FTC approves Tronox/Cristal (titanium dioxide) subject to asset divestments

General

UK blocks Sainsbury’s/Asda mega-retail merger

On 25 April, the UK Competition and Markets Authority (CMA) prohibited the merger between Sainsbury’s and Asda, concluding after an in-depth review that the deal would lead to increased prices, reduced quality and choice, and a poorer shopping experience for UK shoppers. It found that the deal would impact competition for groceries at both national and local level, affecting in-store and online customers, and for fuel in 127 areas where Sainsbury’s and Asda petrol stations are located close together. The parties offered to sell off over 125 stores, and made various public commitments, including that they would be able to reduce prices by GBP1bn per year over three years. But these did not satisfy the CMA, which concluded there was no effective way of addressing its concerns other than to block the deal.

The decision marks a rare prohibition by the CMA, which has blocked only two other deals in the past four years. The CMA’s methodology has been under close scrutiny throughout the investigation, in particular its use of the gross upward pricing pressure index, or “GUPPI”, which estimates how much prices can be expected to rise as a result of the elimination of competition between the parties. The CMA was criticised by the parties following its provisional findings for using GUPPI thresholds that were out of line with previous cases. While it appears to have slightly increased some of the thresholds in its final report, overall they remain lower than seen in other retail mergers. The case is also interesting for the way in which the CMA dealt with concerns over national competition. Whereas parties to UK retail mergers have traditionally been able to address any such concerns by offering remedies focussed on local competition, this was not the case here. More generally, the decision will be closely reviewed by consumer and retail players across the sector, who will be eager to see how it may apply to other large mergers.
 
More EU enforcement action against territorial restrictions – this month video games
The European Commission continues its vigorous enforcement in relation to territorial restrictions. It has sent statements of objections to video game distribution platform Valve and five video game publishers over alleged geo-blocking. The Commission’s preliminary view is that the firms entered bilateral agreements to prevent consumers from purchasing PC video games cross-border.
 
The case follows similar investigations in a variety of sectors, including in consumer & retail (fines on Nike and Guess for restricting cross-border sales), digital/TMT (settlement by film studios and Sky UK in relation to cross-border pay-TV services) and energy (an on-going probe into flows of LNG).

European Commission charges car manufacturers with restricting competition in innovation

Preserving competition in innovation is a hot topic in antitrust enforcement. After focusing on innovation competition in key recent merger cases, the European Commission is using its powers in a  behavioural matter. It has come to the preliminary view that BMW, Daimler and VW (Volkswagen, Audi, Porsche) colluded to limit the development and roll-out of emission cleaning technology for new petrol and diesel cars during car manufacturer engineers’ technical meetings held between 2006 and 2014.
The case marks an unusual instance of cartel enforcement. The manufacturers were not price-fixing or market-sharing but allegedly trying to limit technical development, and in particular attempting to restrict competition in innovation for two particular emission cleaning systems (which, according to the Commission, denied consumers the opportunity to buy less polluting cars). But it fits with a wider enforcement trend of antitrust authorities looking to maintain levels of innovation in sectors. The Commission, for example, identified innovation concerns in its recent merger control reviews of Dow/DuPont, Bayer/Monsanto and Takeda/Shire leading, in each case, to divestments. In the U.S., Tokyo Electron and Applied Materials abandoned their deal after failing to resolve innovation concerns of the Department of Justice. More generally, if the Commission reaches an infringement decision against the car manufacturers, it is likely to prompt firms to reassess how they cooperate on draft legislation and new technology.

Bid-rigging fines imposed in Denmark, France, Hungary, Indonesia, Latvia, Portugal, Russia, South Korea, the UK and the U.S.

In the past month antitrust authorities across the world have imposed a number of fines for bid-rigging. In the EU, fines were imposed in the UK, where five office fit-out firms admitted to “cover bidding”, ie agreeing to place bids that are deliberately intended to lose the contract – they agreed to pay over GBP7m in fines, as well as in France (technical building management), Denmark (demolition), Hungary (solar power systems), Latvia (nanotechnology chemicals) and Portugal (railway maintenance). Bid-rigging cases continue to dominate the enforcement record of the Korean Fair Trade Commission, with combined fines of over EUR9.5m in the telecoms, air pollution equipment, software and engineering sectors.The Indonesian authority also fined two construction companies for rigging a government tender. Elsewhere, probes were getting underway, eg in Brazil, where the antitrust authority (CADE) carried out over 40 dawn raids across the country in relation to suspicions of collusion over tenders for the construction of medical care units, and South Africa, where the Competition Commission has accused network maintenance firms of collusive tendering.
And it wasn’t just companies in the firing line. In the U.S., individuals pleaded guilty to bid-rigging charges in three separate probes: insulation installation, auctions for surplus government equipment, and commercial flooring services. They face jail time and significant fines. Finally, in Russia, a former mayor was sentenced to 15 years in prison and fined nearly EUR7m for rigging a major road project. Two other individuals involved in the project were also found guilty.
 
As antitrust authorities attempt to find new ways to detect bid-rigging conduct, including by using algorithms and other software to monitor bidding patterns, this trend of enforcement looks set to continue. For firms involved in bidding markets, having a global antitrust compliance programme in place to train employees on how to stay on the right side of the line is a key way to mitigate risk. For more information on this trend and enforcement action in specific jurisdictions, please see our Global cartel enforcement report, published last week.

GE fined for incorrect information in a merger filing

Scrutiny over information provided in the course of merger proceedings continues. After the Facebook/WhatsApp case, the European Commission has fined GE for providing incorrect information in relation to its acquisition of LM Wind. According to the Commission, GE made a statement in its merger filing that, apart from an existing turbine, it didn’t have any other turbines of a particular type in development. This seems to have been contradicted by information received by the Commission from a third party. GE withdrew the filing and re-submitted it less than two weeks later, including additional information. The Commission was clear that the decision had no impact on its approval of the deal, as this was based on the rectified information from the second filing. Despite this, the Commission imposed a EUR52m fine, finding that GE should have been aware of the relevance of the information for the merger assessment, and concluding that GE had been negligent.
 
The fine is significant, although lower than the EUR110m penalty imposed by the Commission on Facebook in 2017. There, the Commission found that Facebook had been “at least negligent”, and had submitted “incorrect or misleading” information in relation to its acquisition of WhatsApp. When viewed together with last year’s EUR124.5m penalty on Altice for gun-jumping, the decisions show the willingness of the Commission to take a strict approach to breaches of procedural merger rules, a trend that is echoed more widely in enforcement action across the world (for more on this see our Global trends in merger control enforcement report). From a practical perspective the message for merging parties is clear – ensure that all information submitted as part of a merger review is complete and accurate, both in the initial filing and throughout the process.

Consumer & retail

Spanish CNMC fines tobacco companies for sharing real-time sales data

Information exchange remains a focus for antitrust authorities. The National Commission of Markets and Competition (CNMC) has fined Philip Morris Spain, Altadis, JT International Iberia and distributor Logista EUR57.7m for sharing daily sales figures, broken down by cigarette brand and by province, through a software platform provided by Logista for a period of almost ten years. The CNMC considers that this information exchange eliminated competition in the Spanish tobacco market, allowing the companies to reach a “collusive equilibrium” despite a decline in demand for cigarettes. British American Tobacco escaped a fine – the CNMC was time-barred from imposing a penalty as the manufacturer had left the information-sharing system in 2012.
 
The parties plan to appeal. It will be interesting to follow how the CNMC’s analysis of the anticompetitive effect of the information exchange stands up to court scrutiny. In the meantime the case acts as a cautionary reminder that competition authorities could target information exchange, including where it is indirect and through so-called “facilitators”, where the information does not relate to prices and where the information is current rather than relating to future commercial strategies.
 
Allen & Overy is advising in relation to the case.

Digital/TMT

EU expert report on digital markets calls for vigorous antitrust enforcement

The European Commission has published a report prepared by three expert advisers on how competition policy should evolve in the digital era (see our full summary). It finds that digital markets require vigorous competition policy enforcement, on the basis that large players are often difficult to dislodge and may have incentives to engage in anticompetitive behaviour. Interestingly, on the hot topic of “killer acquisitions” (ie large firms buying up small targets which may have become rivals) the report concludes it is too early for changes to the jurisdictional thresholds under the EU merger rules. It instead recommends a “wait and see” approach – keeping an eye on the impact of such changes in other jurisdictions. It does however propose changes to the way these types of deal are assessed, recommending in some circumstances that the acquirer bears the burden of showing any adverse effects on competition are offset by pro-competitive efficiencies. Similarly, the report recommends changes to the standard and burden of proof in relation to antitrust enforcement, again suggesting that in some situations – such as in highly concentrated markets with strong network effects and high barriers to entry – it may be appropriate for incumbent firms to show that their conduct is pro-competitive. Finally, the report contains detailed discussions on digital platforms and data access/sharing. It argues, for example, that regulation to encourage data portability and interoperability is important to encourage competition between platforms. And it explores the potential need for more demanding regimes for data access in certain circumstances, in some cases suggesting it may be appropriate to require dominant firms to disclose data.

The report comes at a time when governments and regulators around the world are grappling with these issues. In the UK, for example, a similar (arguably more ambitious) expert report was published last month (see our summary). In Australia the antitrust authority is conducting an inquiry into digital platforms. And in the U.S. the Federal Trade Commission (FTC) has set up a tech merger “task force”. It remains to be seen if any regime changes as a result of all of these initiatives are relatively consistent, or whether the result is a difficult to navigate patchwork of rules and approaches.

Financial Services

EU syndicated lending report identifies antitrust risk areas

The European Commission has published its much anticipated report on EU syndicated lending (see our full summary). The report was commissioned to assess whether the syndicated lending market is working efficiently, and how effective competition is in the sector. It focuses on leveraged buy-outs and project/infrastructure finance across a sample of six Member States and identifies antitrust risk areas across the various stages of the syndicated lending process. In particular, it highlights:
  • lenders’ use of market soundings to gauge the appetite of potentially competing banks to participate in a syndication
  • transparency resulting from repeated dealings between competing lenders over time
  • requirements for the borrower to purchase ancillary services from syndicate members
  • potential conflicts of interest where lenders also act as debt advisors
  • possible coordination between lenders in the event of refinancing faced with borrower default.
The majority of these areas are identified as “low risk” in the report. But the cumulative effect is to heighten the degree of antitrust risk associated more generally with syndicated lending. The report does, however, flag three key safeguards for lenders to mitigate concerns – adequate attention to their duty of care to clients (through staff training and policies), internal protocols regulating information sharing between loan syndication and origination functions, and limiting cross-selling of ancillary services. The Commission has been relatively quiet in its response to the report, and whether any enforcement action might follow is as yet unclear. For now at least, the report highlights the areas where lenders should take particular care.

UK CMA recommends major overhaul of audit market

In the latest in a string of reports into the UK audit market, the CMA has published the final report in its market study, finding inadequate choice and competition, as well concluding that the industry is vulnerable to the loss of one of the “Big 4”. Its recommendations for addressing these issues, whilst not unexpected, are far-reaching and will result in major changes to the way the UK audit market operates. First, it calls for separation of audit from consulting services in the Big 4. At this stage it does not go as far as recommending a full structural split – the CMA recognises the difficulties this would pose given that firms operate on a global basis – but rather proposes operational separation. This means audit services would be required to have separate management, accounts, remuneration and CEO/board. Second, the CMA recommends mandatory joint audit, where “challenger” firms would work alongside the Big 4. This would likely be a temporary fix, until the regulator is satisfied that choice and competition have sufficiently improved. Third, the CMA calls for greater regulation of companies’ audit committees, to hold them more vigorously to account for their decisions to hire and supervise auditors. Finally, there should be a five year review of these changes, says the CMA, to check they are having the desired effect, and to consider more stringent reforms (including full structural separation) if necessary.
 
The market study was launched in the face of significant political pressure following the collapse of construction firm Carillion in early 2018 and concerns over the quality of audits. The final report comes only six months after the market study was launched (and six months before the statutory deadline), and the CMA notes that it took account of the Secretary of State’s request to “move swiftly on this issue”. It sits alongside proposals earlier this month by a Parliamentary Committee which also recommended a split between audit and consultancy functions, and a report by John Kingman which found shortcomings within the accounting regulator. The UK Government has committed to respond to the report in 90 days – the outcome will be eagerly awaited.

Industrial & manufacturing

U.S. FTC approves Tronox/Cristal subject to asset divestments

Ending 16 months of litigation, Tronox and Cristal have agreed to settle FTC charges that their merger would significantly reduce competition in the North American market for chloride process titanium dioxide (TiO2), an ingredient in many consumer products including paper and paint. The FTC was concerned that Tronox’s acquisition of Cristal would increase the risk of anticompetitive coordination among the remaining chloride process TiO2 suppliers and increase the likelihood of Tronox implementing future anticompetitive output reductions. To address these concerns, the parties have agreed to divest Cristal’s North American titanium dioxide assets, including two plants and research and development equipment, to Ineos within 30 days of closing. The divestment package also includes provisions dealing with the transfer of customer contracts, granting Ineos the ability to hire relevant Cristal employees and giving Ineos the option to acquire rights to use licensed intellectual property to produce chloride process TiO2 products outside North America.
 
The case highlights how transactions subject to global merger control scrutiny have the potential to suffer from a complicated U.S. litigation process. This usually involves the FTC filing an administrative complaint to block an anticipated merger, as well as seeking a preliminary injunction in federal court. Often, if the FTC wins the preliminary injunction, the parties abandon the deal. But in this case they decided to continue to fight the administrative case. This meant that the parties were embroiled in U.S. litigation a number of months after other merger clearances were received (including conditional approval in the EU). Ultimately, after the FTC’s complaint was upheld, the parties surrendered and agreed to a remedy, getting approval over two years after the deal was originally proposed.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at: privacy@jdsupra.com.

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