Antitrust Alert - Merger control in Europe - What changes in 2017

The European Union (“EU") merger control regime coexists with national merger control regimes in almost all of the 28 EU Member States. Depending on the parties’ turnover and market shares, the filing and clearance of transactions by one or more national competition authorities or the EU Commission may be required. This Alert summarizes recent changes in merger control rules in Europe.

On May 30th, 2017, the Bundeskartellamt published its Guidance on remedies in merger control. This guide is intended to increase transparency of the procedure by enabling companies to evaluate and better prepare their offer of commitments. For this purpose, the German authority recalls the general criteria for the validity of commitments and highlights the guiding principles for the appraisal of commitments :

• Clear preference for divesture remedies ;
• Non-acceptance of behavioral remedies which requires a continued control ;
• Preference for divestment remedies in the form of up-front buyer solutions.

Furthermore, the ninth amendment of the German Act against Restraints of Competition entered into force on June 9th, 2017, and introduces new notification thresholds in order to cover acquisitions of start-up companies active in the digital economy or in innovative markets.

Turnover thresholds are not appropriate for business of the digital economy which do not necessarily have a high turnover, frequently offer their services for free, are able to quickly increase their customer base and so gain significant market shares.

Previously, a transaction was only subject to notification if (i) the combined worldwide turnover of the parties to the concentration exceeded € 500 million; (ii) the turnover of at least one of the parties exceeded € 25 million in Germany; and (iii) another party had a turnover exceeding € 5 million in Germany.

Now, concentrations involving a target company with a domestic turnover of less than € 5 million but having significant activities in Germany no longer falls out of the German merger control.

Under the new rules, transactions meeting the following conditions may also be subject to merger control filing :

• Combined worldwide turnover of all the parties to the concentration exceeding € 500 million;
• Turnover in Germany of at least one party exceeding € 25 million;
• The “value of the consideration” received from the acquirer exceeds € 400 million; and
• The target is “substantially active” in Germany.

On November 1st, 2017, Austria introduced alternative thresholds which are very similar to the German ones. Now, a pre-merger filing obligation is also triggered if :

• The combined worldwide turnover of the parties to the concentration exceeds € 300 million;
• The combined domestic turnover of the parties is more than € 15 million;
• The value of the consideration for the acquisition is more than € 200 million; and
• The target is substantially active in Austria.

The current thresholds are still applicable. Accordingly, a concentration is also subject to merger control by the Austrian competition authority (Wettbewerbsbehörde) if the parties have (i) a worldwide combined turnover of more than € 300 million and (ii) a combined turnover in Austria of more than € 30 million  and (iii) if the domestic turnover of two or more parties concerned is at least of € 5 million, except if (iv) only one party has a turnover in Austria exceeding € 5 million and (v) the other parties do not achieve a combined turnover of more than € 30 million worldwide.

Previously, notification was required only for concentrations where the combined domestic turnover of all the undertakings concerned exceeded € 499 million and the turnover of the target in Italy exceeded € 50 million.

The new thresholds applicable as of August 29^th, 2017 are the following :

• The combined domestic turnover of all the parties exceeds € 492 million; and
• The individual turnover achieved by at least two parties in Italy exceeds €30 million.

These thresholds are subject to an annual up-date by the Italian competition authority (Autorità Garante della Concorrenza e del Mercato).

On June 16th, 2017, the Competition and Markets Authority ("CMA") published its updated guidance on the de minimis exception, following a consultation launched in January 2017.
 
The CMA is supposed to refer a concentration for an in-depth investigation (Phase 2) if it is likely to result in a substantial lessening of competition. However, there are certain discretionary exceptions which allow the CMA to avoid a Phase 2 referral if the costs of the investigation are disproportionate considering the size of the market concerned.
 
The threshold above which the CMA considers that the market is sufficiently important to justify an in-depth investigation was raised from £ 10 million to £ 15 million. The threshold below which a referral in Phase 2 is generally not considered as justified was increased from £ 3 million to £ 5 million. Where the size of the market ranges between these two thresholds, the CMA will assess whether a Phase 2 referral is justified with regard to the cost of an investigation.

On January 15th, 2017, a major amendment of the Competition Act came into force.

The review fees have been reduced by 75% and the Hungarian competition authority (Gazdasági Versenyhivatal) was granted with the power to carry out dawn raids when there is reason to suspect that a Company has violated its obligation to notify a concentration or provided false information in the notification process.

In addition, notification thresholds were partially modified. A concentration needs to be filed if :

• The combined worldwide turnover of all the parties is more than HUF 15 billon (approximately € 48 million); and
• The individual turnover achieved by at least two parties in Hungary is more than HUF 1 billion (approximately € 3.2 million), previously HUF 500 million.

A new alternative threshold was introduced, allowing the authority to investigate mergers even if the thresholds above are not met, but

• The combined worldwide turnover of the parties exceeds HUF 5 billion (approximately € 16 million); and
• The concentration is likely to significantly impede competition on the relevant market.