Antitrust in focus - April 2023

General

German antitrust authority to gain radical powers to remedy market-wide concerns

In October 2022, the German Federal Ministry of Economics and Climate Action published a proposed 11th amendment to the German Competition Act. Our alert considered the likely impact of the far-reaching proposals.

In April, the reform came a step closer to fruition. The German government approved a more detailed and in part softened version of the draft law and sent it to the national parliament for debate and enactment. This will likely take some time, as the bill is debated between the three coalition parties (Social democrats and Greens vs. Liberal democrats), and stringently opposed by the Christian democrats.

Significantly, the new law would hand sweeping new powers to the Federal Cartel Office (FCO) to intervene following sector inquiries. Currently, the FCO can only issue recommendations after a sector inquiry. If the proposals are adopted, the FCO will have the power to impose behavioural and/or structural measures to address competition distortions, irrespective of whether it finds a breach of antitrust rules.

This will include, as a last resort, divestments and breaking up companies. However, this remedy, which drew most of the heat, has now been enshrined in complex procedural rules. It requires a minimum sales price of 50% of fair market value (FMV) and a compensation of 50% of the difference between sales price and FMV by the government, yielding a minimum of 75% of FMV, as determined by an outside expert. This will make the remedy difficult to handle.

While the new rules would amount to a radical change to the German sector inquiry regime, they are not unprecedented. In the UK, for example, the Competition and Markets Authority (CMA) has long held similar powers following the completion of a market investigation. The German proposals bear many resemblances to the UK rules. The EC had also envisaged the adoption of a “new competition tool” in 2020. In the end this was not realised and the Digital Markets Act was adopted instead. More recently, however, there have been calls from some EU antitrust authorities for the proposal to be revived and, from a harmonisation standpoint, the German amendment may support such a turn of events.

Unsurprisingly, this aspect of the 11th amendment has been criticised by industry players, industry associations (Germany’s powerful BDI) and certain academics as being too far-reaching. In contrast, FCO head Andreas Mundt has attempted to alleviate these concerns. He has noted repeatedly that before imposing remedies the authority must carry out an extensive and lengthy investigation into the distortion of competition, a first step subject to separate court review, and must prove, in a second step, that the remedial measures proposed are a necessary, effective and proportionate means of addressing its concerns, which again can be challenged before the courts.

In addition to sector inquiries, the proposed reforms cover other important aspects of the German antitrust rules. The new law would enable the FCO to require certain companies to notify it of all future mergers that meet new (lower) national turnover thresholds (EUR50 million for acquirer and EUR500,000 for target), although only following a sector inquiry. It would also reduce the FCO’s burden of proof when seeking to recoup profits obtained by companies as a result of antitrust violations.

With respect to the EU’s Digital Markets Act, the new law would empower the FCO to investigate gatekeeper non-compliance and facilitate private enforcement.

Although the German parliament may propose further changes on substantive or procedural grounds, we anticipate that it will adopt many as they are currently proposed, including the remedial powers post-sector inquiries. We will keep you updated on the progress of the legislation.

European Commission streamlines merger review process

In late April, the European Commission (EC) adopted a package of revised merger control materials, including an amended implementing regulation and updated notification forms.

The revised rules aim to streamline and simplify the EU merger control review process. They will enter into force on 1 September 2023 and follow a period of consultation with stakeholders (see our May 2022 edition of Antitrust in focus).

The package introduces a number of welcome changes. It extends the category of cases which can benefit from the simplified procedure, meaning more cases will benefit from a streamlined notification form and quicker review period.

The amendments also grant the EC discretion (under so-called “flexibility clauses”) to treat certain cases under the simplified procedure even if they do not fall under the relevant “simplified” categories. On the flip side, the package provides a more detailed list of circumstances in which the EC may investigate a case that qualifies for simplified treatment under the normal review procedure.

“Super-simplified” treatment will be introduced for certain categories of cases. Parties will be able to notify these transactions directly, without pre-notification discussions with the EC, and will not have to complete all the sections of the notification form.

More generally, revised notification forms will establish a “tick-the-box” format for some types of information, particularly in the form for simplified procedure cases, with multiple-choice questions and tables and streamlined questions on both the jurisdictional and substantive assessment of cases.

Finally, the EC will make permanent its system – introduced during the pandemic – for the electronic transmission of documents and for signing documents.

Read our alert for more details on the changes, including a discussion of whether the changes might in practice trigger additional information requests and raise further issues for the EC to consider.

UK government unveils digital markets regime and revamped competition and consumer rules

The UK government has published is hotly-anticipated Digital Markets, Competition and Consumers Bill (Bill).

Front and centre are the provisions to establish a digital markets regime in the UK.

Overseen by the Digital Markets Unit (DMU), which sits within the Competition and Markets Authority (CMA), digital firms designated as having “strategic market status” will be required to comply with binding obligations in relation to their conduct. They will also be required to report certain transactions to the DMU before completion. The DMU will have the additional power to carry out “pro-competition interventions” to tackle the root causes of competition issues in digital markets.

In addition there are amendments to the existing merger control, markets and antitrust rules. A number of these are significant, including:

• Revised merger control notification thresholds, such as a new threshold aimed at capturing more non-horizontal deals and “killer acquisitions”.
• An expansion of the scope of the prohibition on anti-competitive agreements to catch agreements implemented outside the UK but with effects inside UK borders.
• A suite of amendments aimed at speeding up all types of investigation, including imposing on the CMA an overarching “duty of expedition”.
• Giving the CMA greater evidence gathering and information powers, and the ability to impose much heavier fines for breaches of investigations.
• Amended provisions on remedies during market inquiries, including giving the CMA the ability to accept remedies at any stage of the process and to conduct trials of remedy measures to ensure effectiveness.

Finally, radical reforms give more teeth to the UK consumer protection regime. The CMA will be able to decide itself when consumer rules have been breached, and impose fines of up to 10% of turnover. The Bill also gives the CMA new powers to tackle practices such as fake reviews, subscription traps and consumer savings schemes.

Our alerts on the each of the digital markets regime and competition and consumer reforms tell you what you need to know about the Bill.

Australia’s ACCC proposes major shift to mandatory merger regime

For a number of years the Australian Competition and Consumer Commission (ACCC) has advocated for amendments to the country’s merger control rules. The current regime is voluntary, and the ACCC cannot itself prohibit a transaction – it must apply to the courts to do so.

Since taking office last year, ACCC chair Gina Cass-Gottlieb has been vocal in her criticism of the regime. She says the authority often finds that filings in mandatory jurisdictions are prioritised over the Australian regime, which has hampered its ability to assess deals and prevent potentially anti-competitive mergers (see our Global trends in merger control enforcement report for more on this).

Now, in an important speech, Cass-Gottlieb has outlined the ACCC’s case for reform to the merger control rules. Significantly, the proposals will drop a number of the more controversial provisions initially put forward by her predecessor in 2021. Nevertheless they will, if adopted, amount to a major change.

The ACCC will propose a formal clearance model based on overseas merger regimes:

• A mandatory, suspensory notification requirement for mergers above specified thresholds. The exact thresholds are still to be determined, but could be based on “the size of the proposed transaction, the size of the business being acquired globally and/or within Australia, or a combination of these factors”. The ACCC will also be able to “call in” below-threshold deals for review.
• An expedited process for non-contentious transactions (similar to the EU’s simplified procedure).
• The ACCC will itself take the final decision, which will be appealable to the Australian Competition Tribunal.
• A “second-stage” review will clear a merger if it is in the public interest. Parties will only be able to apply for clearance on this basis if they have had their initial application denied on competition grounds.

The ACCC will also propose reforms to the substantive assessment and test.

First, it will recommend amending the legislation to make it clear that the substantial lessening of competition test includes “entrenching, materially increasing or materially extending a position of substantial market power”. This is similar to the test in the EU, and would ensure that there is a focus on the enhancement of market power by dominant firms.

Secondly, it will propose that the rules explicitly set out factors that must be taken into account when reviewing a transaction. Notably, these include the loss of actual or potential competitive rivalry, and whether the deal will result in increased access to or control of data, technology or other significant assets. This aligns the ACCC with the approach of many antitrust authorities across the globe, which are increasingly focused on similar factors.

We expect the ACCC will continue to consult with government and the legal and business communities about its merger reform proposals. What the government will make of them remains to be seen. However, in watering down the 2021 proposals – a welcome move showing that the ACCC has listened to the concerns of stakeholders – it seems more likely that these changes will gain traction with the government than their previous iteration.

So far, the government response has been measured. The treasurer has acknowledged the proposals, noting that the government will carefully consider them, but at the same time recognising that “there are a range of perspectives” on the current merger control regime. Watch this space.

Beyond merger control, Cass-Gottlieb also set out the ACCC’s position on sustainability measures and the digital economy. You can find out more on these points in our upcoming alert.

Sydney partner Peter McDonald has been quoted in The Australian Financial Review commenting on the merger control proposals.

Antitrust authorities continue to deepen inter-agency relationships through cooperation initiatives

In our latest Global antitrust enforcement report we discuss the ongoing trend for antitrust authorities to cooperate with each other on both antitrust policy and in individual cases.

Over the past few weeks we have seen several examples of these collaboration initiatives in action.

In Central and Eastern Europe, the heads of ten antitrust authorities (Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Romania, Slovakia, and two EU candidate Member States: Moldova and Ukraine) signed an agreement on regional cooperation. The aim is to coordinate efforts on policy and enforcement, sharing experiences and best practices through working groups, training and shadowing, and to support Ukraine and Moldova in their accession to the EU.

South American authorities have reached similar arrangements. Brazilian and Paraguayan agencies, and those in Argentina and Chile, have entered into two separate cooperation agreements.

Initiatives to collaborate on particular issues/sectors are also continuing. At the end of March, for example, the U.S. antitrust agencies and the European Commission (EC) held their third U.S.-EU Joint Technology Competition Policy Dialogue (TCPD).

The TCPD was set up in 2021 as a forum for the authorities to discuss antitrust issues and challenges faced in the digital economy and to exchange ideas and experiences. At this latest meeting they covered “the reasons mergers between digital players may lead to competition concerns” and shared policy reflections on abuse of dominance in the digital sector.

Interestingly, the authorities also announced that each U.S. agency would send an official to assist the EC with the implementation of the Digital Markets Act, once in force.

According to authorities, international cooperation is crucial. U.S. and EU agency heads have described their collaboration efforts as “fruitful” and “invaluable”. The head of the UK Competition and Markets Authority has said that “international cooperation is of growing importance and urgency”. But not everyone agrees. The U.S. Chamber of Commerce, for example, is advocating for reduced inter-agency coordination.

What does all this mean for businesses? Increased cooperation between antitrust authorities can lead to greater harmonisation of regimes and approaches to enforcement, reducing the need to navigate a complex patchwork of rules. In specific cases, a harmonised approach to remedies may also be beneficial. Recently, Sika’s acquisition of MBCC was cleared in Australia and New Zealand following the acceptance of a global remedy package involving divestments in Australia and New Zealand, as well as the EEA, Switzerland, the UK, the U.S. and Canada.

It can, however, also lead to increased risk. If authorities are talking to each other and sharing information on their enforcement activities, multinational businesses may be more likely to face antitrust scrutiny across multiple jurisdictions. In this situation, maintaining a consistent dialogue with authorities across the globe will be crucial.

China Anti-Monopoly Law regulations bring welcome clarity but some questions remain

In our March edition of Antitrust in focus, we commented that China’s State Administration for Market Regulation (SAMR) had published final versions of four important implementing regulations.

These regulations have now taken effect. They supplement the substantial changes to China’s Anti-Monopoly Law (AML) that came into force in 2022. In particular, they clarify various aspects of the AML, setting out how key concepts in merger control, anti-competitive agreements and abuse of dominance should be interpreted, particularly in the digital sector.

However, the final regulations leave a number of questions unanswered. For example, the regulation dealing with anti-competitive agreements does not specify the market share threshold applicable to the safe harbour rules. And a number of practical issues in the merger control review process are unresolved.

Businesses trying to navigate the revised rules will, therefore, face uncertainty in significant areas.

Our alert takes you through the key elements of the regulations, discussing their impact in practice and highlighting the issues that remain unsettled.

Belgium close to implementing national foreign investment screening mechanism

A Belgian draft cooperation agreement on foreign direct investment screening was lodged with the federal, regional and community legislatures for approval in Q1 2023. It will put in place a cooperative framework between the federal state, the regions and the communities.

It is anticipated that the new law will start to apply to transactions that are signed on or after 1 July 2023.

The screening mechanism will catch investments by non-EU investors in a number of broadly defined strategic areas. These include: vital infrastructure (eg for energy, transport, water, heath, electronic communication, digital data processing and storage, defence and finance); technology or resources of essential importance for security; the supply of critical inputs; media freedom and plurality; and biotechnology of strategic importance.

In-scope transactions will need to be notified to a newly established screening commission ahead of completion. An initial assessment will take around one month and any subsequent screening procedure will add another month, with multiple extensions possible.

Members of the screening commission will consider whether the investment could have an impact on public order, national security or strategic interests.

Our alert takes you through the main features of the screening mechanism, and provides practical guidance on how to prepare for the new regime.

EU Foreign Subsidies Regulation set to impact public procurement procedures

The EU Foreign Subsidies Regulation will take effect on 12 July 2023, and provides for mandatory notification requirements to the European Commission (EC) from 12 October 2023.

We have reported on the new regime, and on the draft rules and forms setting out arrangements for notifying transactions and public tenders in the EU that have received certain levels of foreign financial contributions.

Our latest alert sets out our initial thoughts on the impact of the new rules on public procurement procedures. We look at, for example, the notification threshold, timing issues for the award of public contracts, possible outcomes of an EC review, potential litigation and EC-initiated reviews. We also detail other recent notable public procurement developments.

In separate public procurement news, in early April a new Italian public procurement code entered into force. It will apply to new public tenders from 1 July 2023, introducing significant new measures to speed up tenders. Read our alert to find out more.

Digital & TMT

European Commission adopts Digital Markets Act implementing rules

In mid-April, the European Commission (EC) adopted an implementing regulation for the Digital Markets Act (DMA). The regulation lays down rules concerning the procedural aspects of the DMA, including in relation to notification forms and content requirements, exercising the right to be heard, and time limits. Overall, the final version of the implementing regulation contains only a few, mostly cosmetic, changes compared to the draft version the EC consulted on in December 2022 (see our January edition of Antitrust in focus).

However, there are some notable exceptions.

For example, access to file has been broadened. It will not be conditional on exercising the right to be heard. An addressee of preliminary findings will receive access to all documents mentioned in those preliminary findings (subject to redactions).

In addition, access will cover non-confidential versions of all documents included in the EC’s file, without any redactions. This more general access to the EC’s file will only be granted to a limited number of external legal and economic counsel and technical experts engaged by the addressee (and subject to certain disclosure requirements). However, access to file will be wider than the position under the draft rules, whereby parties would have had to request that the EC disclose specific items from a list of documents included in its file.

Further significant changes concern confidentiality rules. A person who has submitted information to the EC will be given an opportunity to object if the EC decides to disclose certain information claimed as confidential. If the EC continues to disagree, it will issue a reasoned decision specifying the date the information will be disclosed.

Other amendments include an extension of the page limit (from 25 to 30 pages) for providing substantiated arguments to rebut the quantitative presumption, and clarifications regarding formatting requirements.

The implementing regulation and the DMA apply from 2 May 2023. Find out more about the new rules and how they will impact the digital sector in our updated alert.

Semiconductor supply chain disruptions and geopolitical competition complicate sector M&A

Semiconductors are designed and manufactured in a highly interdependent global supply chain spanning many regions. The fragmented nature of this supply chain and the disruptions to it caused by the Covid-19 pandemic have led to critical shortfalls in supply.

In response, many jurisdictions have legislated to incentivise domestic investment and capability in the sector.

At the same time, these industry conditions have combined to feed an active M&A market.

However, the sensitive nature of the semiconductor supply chain means that there has been a corresponding increase in regulatory scrutiny of semiconductor M&A.

In the U.S. and Europe, national security screening authorities – including CFIUS and the UK’s Investment Security Unit – are reviewing, and intervening in, a growing number of transactions. A number of deals in the semiconductor industry have been blocked on national security grounds.

In addition, transactions involving semiconductor firms are coming under heightened merger control scrutiny.

Our alert analyses the unique aspects of the semiconductor value chain as well as recent trends in, and outcomes of, regulatory activity impacting semiconductor-related M&A in the U.S. and Europe. We identify key risks in cross-border transactions and provide guidance on how to ensure successful deal making.

Transport

Electric vehicle charging markets subject to increased antitrust scrutiny

As jurisdictions focus on achieving Net Zero goals and the electric vehicle (EV) rollout gains momentum, antitrust authorities are taking a growing interest in the EV sector. EV charging infrastructure is under particular scrutiny, with authorities keen to ensure that the market is competitive and that barriers to entry and innovation are minimised.

With these issues in mind, the European Commission (EC) has published a report (prepared by economic consultants CRA) which provides a competition analysis of the EV recharging market across EU Member States and the UK. It looks at market developments in these jurisdictions, including infrastructure funding, regulatory frameworks and public support.

EC Executive Vice President Margrethe Vestager notes that the aim of the report is to help the EC identify potential antitrust concerns early on.

Importantly, the study concludes that “no evidence was uncovered of major competitive concerns in the current state of the sector”. However, it does highlight a number of areas of possible concern that could be relevant as the sector evolves.

These include exploitative conduct (such as price discrimination or higher fees) due to firms having local market power, the potential for market “tipping” and its impact on interoperability, and coordinated conduct (and information sharing) through horizontal agreements between charge point operators.

Armed with the report’s findings, we can expect the EC to keep a close eye on how competition is faring in this emerging market. Vestager is clear that the EC will continue to discuss with Member State antitrust authorities (via the European Competition Network) how best to cooperate.

It is not only the EC that is focusing attention on the EV charging market.

Earlier this month, the Italian Competition Authority (ICA) carried out dawn raids at the premises of various Enel group companies over concerns it abused an alleged dominant position in the markets for installing and managing EV charging points in Italy. The investigation – launched in response to a complaint from a rival – is looking at whether Enel engaged in “margin squeeze”, ie setting the wholesale prices for competitors to access its infrastructure, and its own charges to end users, at such levels that rivals cannot compete.

Some antitrust authorities are carrying out inquiries into EV charging markets as a whole. The Japan Fair Trade Commission is reportedly planning to conduct a fact-finding survey to check for potential entry barriers. Other sector inquiries have been recently launched in France and Sweden.

Outcomes may be varied. In the UK, a Competition and Markets Authority (CMA) market study which identified competition concerns in relation to motorway and on-street charging informed the government’s 2022 EV infrastructure strategy. It also prompted an antitrust investigation which resulted in a charge point operator committing not to enforce certain exclusive rights in contracts with motorway service area operators, as well as the CMA issuing an open letter reminding the sector of its obligation to comply with competition law in relation to EV charging arrangements.

More investigations are expected as EV markets continue to develop.

European Commission prolongs Motor Vehicle Block Exemption Regulation and amends related guidelines

The European Commission (EC) has prolonged the Motor Vehicle Block Exemption Regulation (MVBER) for five years, until 31 May 2028. It has also amended the accompanying guidelines on vertical restraints in agreements for the sale and repair of motor vehicles and for the distribution of spare parts (Supplementary Guidelines).

The MVBER and Supplementary Guidelines help companies to self-assess whether their vertical agreements in the automotive sector are in line with EU antitrust rules. In particular, the MVBER provides exemptions for certain categories of agreements related to the purchase, sale and resale of spare parts for motor vehicles, as well as the provision of repair and maintenance services.

The MVBER was set to expire on 31 May 2023. In 2018, the EC launched an evaluation of the motor vehicle regime. It concluded that, while no major revisions were required, there was a need to reflect issues related to access to vehicle-generated data (see our July 2022 edition of Antitrust in focus).

The Supplementary Guidelines have therefore been amended to:

• clarify that data generated by vehicle sensors may be an essential input for the provision of repair and maintenance services – the existing principles for the provision of technical information, tools and training necessary for repair and maintenance services have been extended to explicitly cover vehicle generated data
• specify that suppliers considering withholding – on security grounds – inputs essential for the provision of repair and maintenance services must assess whether this would be proportionate, or whether less restrictive measures would suffice
• explain that it could amount to an abuse of dominance for a dominant supplier to unilaterally withhold essential inputs such as vehicle-generated data from independent operators
• reflect the provisions of the new EU Vertical Block Exemption Regulation

In parallel, the UK rules in this area are taking shape. Earlier in 2023 the UK government consulted on a draft order – its version of the motor vehicle block exemption – taking into account recommendations made by the Competition and Markets Authority (CMA). Now, the CMA is seeking comments on draft guidance to accompany the draft UK order.

The draft UK order and guidance are in line with the EU rules in many respects. However they do propose some divergences from the MVBER and Supplementary Guidelines.

In particular, the draft UK order contains a new “excluded restriction”. This provides that any agreement that contains a restriction of the ability of an independent operator to access technical or vehicle information, or tools or training, which is necessary for the repair and maintenance of motor vehicles of a particular make will not fully benefit from the block exemption, and may even not benefit at all. The draft guidance provides more detail on this provision.

The final UK order will come into force on 1 June 2023. The final CMA guidance is expected around the same time.

Turning back to the EU, in other block exemption regulation news, the EC has started the next phase in its evaluation of the Technology Transfer Block Exemption Regulation (TTBER) and related guidelines. The TTBER exempts technology transfer agreements meeting certain conditions from the EU’s general antitrust rules. It is due to expire on 30 April 2026. The EC is seeking views on the effectiveness, efficiency, relevance, coherence and added value of the TTBER and guidelines. The deadline to submit feedback is 24 July 2023.

A&O Antitrust Team in publication

Recent publications/initiatives by members of our global team include:

• The Complaint Crusher: How the Revision of Regulation 1/2003 Can Advance Rights of Complainants, EU Law Live, 3 April 2023, Jacek Mainardi (associate, Warsaw) and Dr Malgorzata Kozak (Assistant Professor of European Law at Utrecht University School of Law)

About your editor

Ellen co-heads our German antitrust practice. She specialises in EU and German antitrust law. Her practice covers the full range of antitrust law issues, including merger control, the structuring of cooperation, joint venture and distribution agreements, horizontal and vertical compliance risks (including forensic audits and compliance programmes), and strategies to prevent or defend abuse complaints.

In recent years, Ellen has developed a particular focus on defending clients in EU and German investigations, including court scrutiny of agency decisions, and in private enforcement cases in court. She also advises digital sector clients on the new antitrust rules including the DMA and DSA.

Her client relationships encompass all industry sectors, including digital/tech, consumer products, pharma and life sciences, chemicals, general industry, construction, infrastructure and energy, media and entertainment.

Ellen regularly speaks and publishes on EU and German antitrust law issues. Her publications include the horizontal cooperation chapters in the leading German/EU antitrust commentary Bunte, and articles relevant to pharma antitrust. She also sits on the German Federal Union of Attorneys (BRAK) antitrust committee that comments on all German and EU legislative proposals on their behalf. 

Ellen holds an LL.M from UC Berkeley and a doctorate in antitrust law from the University of Hamburg. She is also admitted to the New York Bar.

Spotlight on Ellen

A typical working day in Hamburg involves… an early client call (usually at 6.30 or 7.00 am), picking up client emails and checking in with the team in the office, followed by desk work and calls, some input in (and inspiration through) our DE&I initiatives – and at least once a month ending with Hamburg’s renowned Jour fixe: dinner and drinks shared by all fee earners.

If I hadn’t become an antitrust lawyer, I would be… a strategy consultant or, in my later years, maybe a managing director of a non-profit organisation.

The best career advice I’ve been given is… to follow your heart and speak your mind (within reason).

The most interesting matter I’ve recently worked on is… a pan-European series of patent litigation cases, in which our antitrust advice established a forceful second line of defence and eventually led to a walk-away settlement.

For me, being a good lawyer/adviser means… to be able to listen to and walk in the client’s shoes.

Something I’d like to do but haven’t yet done is… take a sabbatical.

My ideal start to a weekend… sees me participating in a yoga session on Saturday morning, following by a visit to our local foods market, then going out for coffee and taking the dog for a walk, finally preparing dinner for family and friends and, most certainly, opening a good bottle of wine.

Something that might surprise you about me is… my love of the French language, which I am immersing myself in, slowly, step by step – although it’ll never be as elegant as that of my A&O Paris colleagues (or my husband’s), who I will forever envy for their eloquence.

My top tip for visitors to Hamburg is… visiting the huge market below the tube on stilts in Eppendorf, walking around the big lake in the midst of Hamburg, and listening to music at the new concert hall atop an old storage space with amazing views over the port, the Elbphilharmonie.