Our Insights into Antitrust Trends


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In this inaugural publication, we look at the current key antitrust trends, focusing not only on established regions for antitrust such as the EU and the US but also growth regions such as Asia Pacific, Africa and the Middle East – looking at both merger control and antitrust enforcement. We highlight the main merger control risks for businesses contemplating an M&A transaction and consider practical ways of avoiding or minimising those risks. We also shine a spotlight on three sectors that have experienced particular scrutiny from the authorities of late: financial services, information technology and pharmaceuticals.

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Our Insights into Antitrust Trends

  1. 1. Our Insights into Antitrust Trends
  2. 2. November 2013 Contents 1 2 Introduction 3 Trends overview 4 The proliferation of global merger control Merger control: the new global order Antitrust enforcement: on the up across the globe The spread of private enforcement Merger control risks 5 6 7 8 9 Merger control: process risk Protecting the national interest Risk-shifting Deal structuring for timely closing 3 Key regions 14 Sector spotlight 24 4 2 Clifford Chance Our Insights into Antitrust Trends Europe United States Asia Pacific Africa and the Middle East Financial Services Information Technology Pharmaceuticals 10 11 12 13 15 17 18 22 25 27 28
  3. 3. Introduction Getting antitrust right has never mattered more. For both companies and individuals, the consequences of breaching antitrust rules are potentially eye watering. In an M&A context, a well-executed merger control strategy can be the difference between success or failure for a transaction. In this inaugural publication, we look at the current key antitrust trends, focusing not only on established regions for antitrust such as the EU and the US but also growth regions such as Asia Pacific, Africa and the Middle East – looking at both merger control and antitrust enforcement. We highlight the main merger control risks for businesses contemplating an M&A transaction and consider practical ways of avoiding or minimising those risks. We also shine a spotlight on three sectors that have experienced particular scrutiny from the authorities of late: financial services, information technology and pharmaceuticals. The world of merger control has changed almost beyond recognition compared to a decade or so ago. Today, transactions are subject not only to a growing number of merger control reviews around the world but also a rising number of foreign investment and national security reviews. This increases the risk of delay to deals and also the possibility of divergent outcomes. Beyond merger control, antitrust enforcement is on the up globally. Fining levels are rising and enforcement is becoming ever more global as authorities increasingly cooperate and coordinate with each other and new authorities are established. Thomas Vinje Chairman of the Global Antitrust Practice Oliver Bretz Head of the Global Antitrust Practice Visit our online resource: The Clifford Chance Global M&A Toolkit www.cliffordchance.com/GlobalM&AToolkit Clifford Chance Our Insights into Antitrust Trends 3
  4. 4. Trends overview 4 1 Clifford Chance Our Insights into Antitrust Trends n ncreasing numbers of merger I control regimes n ew regimes such as China growing N in importance n ncreasing globalization of antitrust I enforcement n ore antitrust enforcement M through litigation
  5. 5. The proliferation of global merger control International MA transactions are subject to an ever-increasing number of merger control, foreign investment and national security reviews. Procedural and substantive divergences create risks for deal execution and value realisation. More than 100 jurisdictions worldwide now have merger control laws. Here are some recent examples of new or reformed antitrust regimes. United Kingdom n April 2014, the UK will have a new In regulator, the Competition and Markets Authority, with sweeping new powers to freeze integration by imposing hold separate obligations Germany n The German merger control law was significantly changed on 30 June 2013 n While the turnover thresholds remain low, the presumption for market dominance was increased to 40% n The German FCO now has the right to stop the clock in Phase II proceedings if the parties fail to provide data in time Brazil n new suspensory regime came into force A in May 2012 n Acquisitions of as little as 5% shareholding may now be notifiable n Market share filing thresholds have been abolished; turnover thresholds still require the turnover of the seller to be taken into account n The maximum period of review is unusually long (330 days), but most simple transactions are processed relatively quickly (4-6 weeks) India n India’s merger control regime came into force in June 2011. Filings are mandatory and suspensory n The thresholds are complex. A de minimis exception applies where the target does not have sufficient assets or turnover in India. However, for asset sales, seller’s turnover and assets are taken into account n Only two cases have been subject to remedies, the rest have been cleared unconditionally n Fines have already been imposed for late notification COMESA n Merger control regime came into force in the Common Market for Eastern and Southern Africa in January 2013 n supranational merger control regime, A covering 19 African countries. Only eight of these have implemented a national merger control regime United Arab Emirates n merger control regime entered into force A in February 2013 N ational merger control regimes introduced since 2000 Existing national merger control regimes Clifford Chance Our Insights into Antitrust Trends 5
  6. 6. Merger control: the new global order China now reviews almost as many deals as the EU. US and EU filing volumes are still far lower than their 2007 peak. n Since China introduced a merger control regime in 2008, over 650 cases have been reviewed Although the US antitrust agencies review many more deals than their EU and Chinese n counterparts, the filing volumes are still well below pre-financial crisis levels Enforcement rates dropped in major jurisdictions post-financial crisis – likely reflecting n dealmakers’ reduced appetite for antitrust risk, rather than increased permissiveness of agencies. Recent years appear to show appetite for risk returning n The EU has been consistently the most interventionist of the three major regimes, with two prohibition decisions so far in 2013 (Ryanair/Aer Lingus and UPS/TNT) China has so far blocked only one deal, but has imposed remedies in a further 20 cases n n enforcement rates are on an upward turn, with the focus being on high value transactions US Enforcement rate: prohibitions, remedies and withdrawals as % of filings Volume of filings 2500 12% 10% 1500 8% 500 6% 4% 250 2% 0 2007 EU US 2008 2009 2010 China Figures include full-year forecast for 2013 2011 2012 2013 0% 2007 EU US 2008 2009 2010 2011 China Increasing convergence or divergence? “Post GE/Honeywell, the focus was on the divergent approach of the US and EU. We are now seeing increased transatlantic convergence but divergence elsewhere – for example, Google/Motorola Mobility and Seagate/Samsung were cleared in US and EU but required remedies in China.” Alex Nourry, Partner, London 6 Clifford Chance Our Insights into Antitrust Trends 2012 2013
  7. 7. Antitrust enforcement and cooperation on the up across the globe Increasing international cooperation Record breaking fines n China has MoUs with authorities in the EU, US and Korea China: n China’s fining record has been broken three times in 2013 (LCD Panels, Chinese Liquor and Infant Formula) – a total of around 1.5 billion yuan US: n 2013, the DoJ has continued to obtain increased fines with over $1.25 billion in criminal In fines obtained in the first 9 months alone EU: Enforcement in the EU is “lumpy” reflecting a relatively low number of cases attracting n high fines (€1.88 billion in 2012 vs. €142 million so far in 2013; although a number of cases currently in the pipeline.) Antitrust enforcement fines for cartel activity n EU/Switzerland Cooperation Agreement (subject to ratification) allows exchange of confidential information without investigated party’s consent and may serve as model for other jurisdictions n last 12 months, US cooperation agreements with India and Ireland have included a model In waiver of confidential information for coordinated investigations n Coordinated investigations becoming more common – simultaneous dawn raids in automotive parts (EU, US, Japan) and refrigeration equipment (EU, US, Brazil) Increased criminalisation of cartel or bid rigging offense n Jurisdictions with a criminal cartel offence now include: Australia, Austria, Brazil, Cyprus, Denmark, France, Germany, Hong Kong, Indonesia, Italy, Japan, Mexico, Norway, New Zealand, Romania, Russia, South Korea, Switzerland, UK and US Proliferation of leniency regimes Fines (€ million) n Leniency programs now almost globally available 3500 n Approximately 75% of all criminal cartel cases initiated by the US DoJ since 2005 were commenced as a result of information received from a leniency applicant 3000 2500 2000 1500 1000 500 0 2005 2006 2007 2008 2009 2010 2011 2012 2013 “Increasing cooperation between antitrust agencies and increasing numbers of leniency programs have contributed to an increase in antitrust enforcement.” Patrick Hubert, Partner, Paris EU US China Clifford Chance Our Insights into Antitrust Trends 7
  8. 8. The spread of private enforcement The US and the UK remain the most active jurisdictions in terms of antitrust litigation. However, private enforcement has been steadily increasing in other regions and this trend looks set to continue. EU – long-awaited proposed Directive on antitrust damages claims n The proposed Directive seeks to coordinate public and private enforcement of competition law and ensure effective compensation for victims of antitrust infringements. The proposals include the introduction of disclosure rules in antitrust claims while protecting leniency corporate statements from disclosure in damages claims Rest of Asia – little consistency in approach Different approaches to private enforcement across Asia mean this can be difficult territory for companies to navigate. Some jurisdictions, like Japan, allow stand-alone private actions. Others such as Singapore and Hong Kong under its new competition law restrict private claims to follow-on actions. There are also differences in the remedies that private litigants can claim and the recognition of legal privilege n draft Recommendation published by the European Commission (EC) urges all Member A States to have collective redress mechanisms for both injunctive relief and compensation caused by violation of EU rights Class actions are taking off in some jurisdictions – in South Korea for example, at least 1,500 consumers have joined a class-action suit following fines totalling 365.3bn won (US$315 million) imposed on seven life insurance companies by the Korea Fair Trade Commission in 2011 for price fixing China – private litigation on the increase but few successful claims In Australia, follow on class actions are important matters to consider in relation to cartel leniency applications, particularly given the existence of litigation funders n China has seen a steady up-tick in private enforcement, with more than 100 cases filed in 2012. To date, all private actions have been stand-alone claims, with the majority related to abuse of dominance n However, most litigation has either failed or been withdrawn, with plaintiffs encountering difficulties in establishing their case. For example, Qihoo 360’s claim against Tencent was rejected on the grounds that it had failed to prove Tencent’s instant messaging platform held a dominant position n Individual courts enjoy considerable discretion in their approach to antitrust litigation. This raises the prospect of diverging outcomes in relation to the same anti-competitive conduct in different courts as well as potential inconsistencies in approach between private and public enforcement 8 Clifford Chance Our Insights into Antitrust Trends
  9. 9. Merger control risks 2 n erger control – process risk M n rotecting the national interest P n Deal structuring for timely closing n isk-shifting R Clifford Chance Our Insights into Anti-trust Trends 9
  10. 10. Merger control – process risk Jurisdiction n Never underestimate timeframes • Information demands by regulators increasing, resulting in longer review processes and extended pre-notification – MOFCOM’s Glencore/Xstrata review took 12 months n Managing stakeholders • Manage the documents your team (and advisers) produce or statements they make • EU and UK authorities introducing increased disclosure requirements Strategic considerations n Remedies: often a critical part of the process • Failure to produce a convincing buyer can be fatal (UPS/TNT) • Some jurisdictions (such as UK) routinely insist on an up-front buyer, so extending antitrust risk • MOFCOM has imposed long-term hold separate remedies in several cases (Marubeni/ Gavilon, Western Digital/Hitachi) – requiring buyer to ring fence part of target’s business which sells into China 10 EU Electrabel fined €20 million for failure to file acquisition of de facto control China New maximum fines of RMB 500,000 (US$ 80,000) and new “whistle blowing” mechanism for unnotified transactions Germany Since 2008 the FCO has imposed total fines of approximately €10 million France Fine of €392,000 on supermarket group Colruyt in May 2012 for failure to notify a 2009 acquisition Norway Four companies received penalties totalling 1.3 million kroner (€170,000) in July 2012 South Korea Doubled potential fines to 15-40m won (US$13-34,000); fined 21 companies for failure to notify in July 2012 India Fine of Rs 50 lakh (US$80,000) in August 2013 for late filing Ukraine Antimonopoly Committee announced it intends to impose maximum fines permissible (5% worldwide turnover) Indonesia n Proliferation of merger regimes • Imposing significant financial/time costs in terms of merger planning • Different standards and unclear procedures Risks of failing to file – gun jumping recent developments KPPU issued first fine for failure to notify in May 2012 of IDR 25 billion (US$ 2.6 million) Preparation and consistency Timing Wider context n Ensure a consistent narrative across jurisdictions n ave a timing strategy – consider if beneficial H to file in one jurisdiction first or do parallel review n nderstand how countries may exercise U sovereignty over deals n Be disciplined on timing and deadlines n ore regimes are taking non-competition factors M into account (via ‘public interest’ and ‘national security’ tests or other means) n repare early – regimes may request pre-notification P (such as EU) and/or more economic/data intensive input n ngage public/government relations teams where E necessary Clifford Chance Our Insights into Antitrust Trends
  11. 11. Protecting the national interest Protectionism is increasing. Acquisitions by foreign State-owned entities are facing intense scrutiny in North America. Protectionism ranges from prohibitions of foreign ownership of rural land to the application of merger control rules. Canada Russia n Mandatory filing for all foreign investments over certain thresholds n Russia has a separate regime for foreign investments in so called “strategic entities” (broadly, entities performing designated activities in the fields of natural resources, defence, media, pharmaceuticals and monopolies) n Tougher requirements for State-controlled buyers introduced in December 2012, including more scrutiny of corporate governance and reporting and whether Canadian target will operate on a commercial basis EU n Most investment restrictions operate nationally n law limits possibilities for national EU governments to object to large deals on non-competition grounds USA CFIUS regime – broad scope and lengthy timetable n Particular concerns around “China Inc.” n • two Huawei transactions blocked in 2011 n Foreign investments in certain energy infrastructure subject to a security of supply test • Chinese acquirer of Oregon windfarm forced to unwind deal due to proximity to military base CFIUS annual report refers to foreign governments’ “coordinated n strategy” to acquire critical US technology n BUT recent examples of clearance – A123/Wanxiang, CNOOC/Nexen and Shuanghui/Smithfield Brazil n Restrictions on acquisitions of rural property may apply even for indirect investment South Africa n Public interest test requires consideration of issues such as unemployment and competitiveness of firms owned by historically disadvantaged persons n Conditions imposed on Glencore/Xstrata included a cap on permitted retrenchments and provision of training n The procedure can be lengthy and burdensome, with approval granted by a Governmental Committee headed by the Prime Minister China n Merger control reviews consider the effect of a deal on national economic development Foreign investments also subject to reviews n on the basis of national security and sectorspecific considerations Conditions can be imposed even where n market share is low – 20% in Glencore/ Xstrata and Marubeni/Gavilon Australia Foreign investment filing regime more n rigorous than voluntary competition regime – filings are suspensory and mandatory n Any direct or indirect sovereign interest of 15% or more is notifiable, regardless of value Clifford Chance Our Insights into Antitrust Trends 11
  12. 12. Risk-shifting A deal that is conditional on antitrust clearance effectively leaves antitrust risk with the seller because if approval is not obtained the deal falls away. We are seeing a range of innovative contractual and structural solutions that mitigate antitrust risk or shift it to the buyer. Drop dead dates n f there is a material antitrust risk, timing I will depend on jurisdictions where the transaction has to be filed n ontrolling timing can allow parties to C negotiate remedies, but terminate the transaction before it is challenged n ften linked with requirement to file within O a set timeframe Litigation provisions Risk shifting mechanisms Impact on antitrust risk Deal examples Unconditional closing Shifts all risk to buyer, as transaction must close regardless of whether conditions obtained; not usually possible in jurisdictons that enforce standstill obligations Ryanair/Aer Lingus minority stake Shifts risk to buyer, as buyer is required to use its best efforts to obtain clearances, including offering divestments and remedies; risk of outright ban by authorities remains First Niagra/HSBC Buyer compensates seller if deal does not close by long stop date as a result of antitrust issues. Break fee/compensation may be capped by national regulation ATT/T-Mobile Shifts financial risk to the buyer as buyer pays seller full price for the target, even if clearances not obtained by the longstop date. Needs to be structured so as to avoid gun-jumping concerns EMI/Universal Hell or high water Reverse break fee Take or pay 12 n sed in some jurisdictions such as US U where agencies must oppose deals through courts – EU timeframes make this impractical in Europe Clifford Chance Our Insights into Antitrust Trends Some other considerations n nformation exchange during due diligence I process n se of confidentiality agreements/clean U teams n rovisions regulating pre-completion P conduct n eed to balance buyer’s interest to protect N value against gun-jumping concerns
  13. 13. Deal structuring for timely closing “With careful planning, trade buyers can sometimes structure their deal to delay or divert more in-depth review processes, thereby allowing them to compete on an equal footing with non-trade buyers in the context of a sales auction process.” Marc Besen, Partner, Düsseldorf and Brussels n Third party (normally a bank) acquires target while ultimate buyer secures antitrust approval. If ultimate buyer not approved, third party sells target to another buyer. Ultimate buyer typically indemnifies third party against any losses during ownership or upon resale Warehousing n Allows trade buyers to compete in auctions on equal footing with non-trade buyers and allows sellers to make risk-free sale n But the EC may look through structure to ultimate buyer from the outset n Allocation of economic risk is key – for third party to be treated as real buyer, it has to assume real risk n Alternative backstop structure may get around warehousing problem and offers sellers deal certainty, but does not address timing concerns Backstop • Real buyer contracts directly with seller to buy target • Backstop buyer (bank) steps in only if antitrust approval not secured • Total return swap transfers economic risk from bank to buyer n Trialled in Liberty Global/Kabel BW but backstop not ultimately required Carve-out and close n Usually unlawful for most major jurisdictions (EU, US and China) even if hold separate arrangements in place n However, in some jurisdictions (such as South Africa) it may be permissible to complete a share or asset transfer in another jurisdiction provided the local businesses are held separate pending outcome of the review Clifford Chance Our Insights into Antitrust Trends 13
  14. 14. Key regions 14 3 Clifford Chance Our Insights into Antitrust Trends n Europe n United States n Asia Pacific n Africa and the Middle East
  15. 15. EUROPE EU merger control: more flexibility? Are Phase II investigations on the wane? Watch out – minority shareholdings may soon be notifiable n While the number of initiated Phase II cases increased between 2010 and 2012 (from 4 to 10) there have been only 4 so far in 2013 The EC is considering closing the “enforcement gap” regarding acquisitions of minority shareholdings by amending the EU Merger Regulation to catch non-controlling minority stakes. The proposal comes at the same time as the UK Competition Commission requiring Ryanair to reduce its minority shareholding in Aer Lingus from 29.8% to 5% n The increase in prohibition decisions in recent years (4 in the past 3 years, following a period between 2008 and 2010 when there were none) reflects the difficulty in reaching satisfactory remedies in cases where the competition effects are significant and pervasive n Nevertheless, the current lower number of Phase II cases may reflect a greater willingness by the EC to resolve cases at Phase I through the use of remedies 16 450 Procedural enhancements – good news for business? 14 400 The EC is considering simplifying its filing regime by increasing market share thresholds below which simplified procedure applies (20% for horizontal overlaps and 30% for vertical links); but proposed simplified form requires more information. The EC is also considering streamlining the system of referrals between itself and national authorities Rise of the counterfactual? In two recent cases, EC cleared on basis that the merger would have led to no worse an outcome than absent the merger. In Shell/Nynas, the EC accepted that the seller would have closed the target business absent the transaction, so cleared its sale to a close rival 350 12 300 10 250 8 200 6 150 4 100 2 50 0 0 2005 2006 2007 2008 2009 2010 2011 2012 2013 n Phase II initiated n Phase II unconditional clearances n Phase II conditional clearance n Phase II prohibition “A greater willingness to resolve issues at Phase I, an increase in the scope of the simplified procedure and a pragmatic approach to the counterfactual are all encouraging signs.” n Phase II abandoned Filings Miguel Odriozola, Partner, Madrid and Brussels Clifford Chance Our Insights into Antitrust Trends 15
  16. 16. EUROPE EU antitrust enforcement: targeted approach? The EC has continued to focus its enforcement efforts on cartels and has been managing its resources through an increased use of commitment and settlement procedures. Cartels: still a key focus In 2012 and the year to 30 September 2013, the EC issued decisions in 6 cases involving 42 undertakings. The EC has also issued 5 Statements of Objections in cartel cases and conducted 9 dawn raids. The EC has also made increasing use of its settlement procedure – which incentivises companies to admit the infringement in exchange for a lower fine and a shorter decision. 7 cases have so far settled with more expected. Beyond cartels, the IT sector has been a priority The EC also devoted significant resource to various abuse of dominance cases in the technology sector, in particular the high-profile Google “search” case and Samsung “essential patent” case as well as a number of noncartel anticompetitive agreement cases across several sectors, including pharmaceuticals, online markets, airlines and energy. Increasing use of commitments? T he EC has accepted commitments in a number of recent cases, including in relation to ebooks where book publishers and Apple agreed to terminate existing agency agreements that included most favored nation clauses and retail price restrictions. Unlike the settlement procedure, companies entering into a commitment decision are not required to admit to any infringement. Evolving dawn raid practice Increasing IT focus: The EC’s dawn raid practice has evolved in parallel with technological developments. The EC now uses advanced methods for identifying and capturing data in electronic form (such as the use of built-in keyword search tools and forensic IT tools). Recent court judgments have strengthened the EC’s hand in dawn raids, confirming: The EC’s ability to fine companies for obstruction/failing to cooperate fully – the n General Court upheld the EC’s decision to increase KWS’s cartel fine by 10% for denying entry to dawn raid inspectors for 47 minutes pending arrival of external lawyers. The court said officials should have been able to enter the premises to serve the inspection notice and ensure no destruction of evidence or communication with other raided companies n The EC’s broad powers of inspection – the General Court recently confirmed (in the Deutsche Bahn case) that the EC has authority to search exhaustively the content of offices or workbooks, even if there is no clear indication that they contain relevant material “The European Union remains one of the key antitrust enforcers in the world. Cartels remain a focus of enforcement and sanctioning with extremely high fines. We also see a lot of customers introducing follow-on damages claims – and we expect this to increase following the new legislative framework for private enforcement under discussion. Finally, the replacement of Vice-President Almunia towards the end of 2014 could be a catalyst for further change and a shift in focus.” Johan Ysewyn, Partner, Brussels 16 Clifford Chance Our Insights into Antitrust Trends
  17. 17. UNITED STATES Antitrust enforcement has continued to focus on financial institutions and the prosecution of non-US companies Enforcement Trends “Antitrust activity in the US continues to trend upward. Recent staff changes and a continued emphasis on investigations into financial institutions signal that this trend is unlikely to change. As the economy rebounds and MA activity returns, we will also see increased merger control activity.” Tim Cornell, Counsel, Washington D.C. n With the RBS settlement in LIBOR, the DoJ issued its first Deferred Prosecution Agreement (DPA) (by which companies and individuals agree to take specified actions in exchange for charges being dismissed or not filed), indicating a trend toward alignment of the Antitrust Division’s prosecution with that of the rest of the DoJ, which has been a frequent employer of DPAs n While the number of criminal investigations is trending downward, the number of criminal cases filed is increasing, meaning the DoJ is pursuing more convictions per case than previously 2013 is likely to see some type of movement toward n clarifying the FTC’s Section 5 (unfair methods of competition) authority. Both Commissioners Olhausen and Wright have been outspoken on the issue n The FTC is undertaking a review of loyalty discounts and is seeking an appropriate case in which to test its theories n Where the US antitrust authorities deem a significant absence of compliance, they may seek to impose a third party, at the company’s expense, to monitor the company’s efforts to undertake compliance training and implement a compliance policy Merger enforcement has remained steady n Marginally fewer cases were notified in FY 2012 than the previous year, but the proportion of cases meriting a more detailed second request remained broadly constant at 3-4% n The trend towards the use of a more effects-based analysis continues, with the FTC moving away from a more traditional market share based approach n The DoJ has recently emphasized its willingness to examine consummated mergers and mergers not meeting the filing thresholds. It has also been more vigorous in pursuing failure to notify – with two cases in 2012 and two more in the first half of 2013 n Recent HSR reform brings certain pharmaceutical patent transfers within the scope of merger control US staff changes expected to result in increased enforcement n Baer took over the Antitrust Division and Debbie Bill Feinstein took over the FTC’s Bureau of Competition n Both are likely to bring a pragmatic, but aggressive approach to enforcement to their respective agencies n The appointment of Edith Ramirez as Chairperson of the FTC is likely to yield an increased focus on consumer protection Clifford Chance Our Insights into Antitrust Trends 17
  18. 18. ASIA PACIFIC Growing antitrust enforcement across the region Japan The Japanese Fair Trade Commission (JFTC) is a well resourced and active regulator and is a regular participant in regional capacity building initiatives. Thailand The Thai Competition Act came into force in April 1999 and is enforced by the Trade Competition Commission (TCC), chaired by the Minister of Commerce. The TCC has issued guidelines concerning cartels and abuse of a dominant position although there are very few reported cases. No detailed regulation on merger control has yet been issued. Malaysia The Malaysia Competition Commission (MyCC) has received 40 complaints since its inception in January 2012. As of September 2013, MyCC was working on 26 ongoing cases, while another 14 had been dismissed. “2012 marked a significant year for Japanese cartel enforcement with the largest fine ever imposed on an individual company – JPY 9.6 billion (USD 97 million) to Yazaki, a participant in the Wire Harness cartel.” MyCC recently imposed a proposed fine of around US$ 6m on Malaysia Airlines and AirAsia for entering into an agreement for market allocation. Miho Mizuguchi, Partner, Tokyo Vietnam Vietnam’s Competition Law prohibits cartel conduct if the cartel concerns at least 30 percent of the relevant market. In 2010, 19 insurance companies were fined a total of 0.025 percent of their total turnover. To date, there is no leniency policy. A major ongoing investigation in Vietnam relates the cinema market. Six Vietnamese cinema operators have accused Megastar of abusing its market dominance by imposing a margin squeeze. Singapore “Singapore has a well-respected competition authority in the Competition Commission of Singapore that is astutely tackling competition issues in Singapore and is a good model for the region. Recent activity included sanctioning two ferry operators for exchanging competitively sensitive information, including the prices of tickets sold to travel agencies.” Harpreet Singh, Partner, Singapore Australia “Increasing trade between Australia and the rest of Asia makes it essential to coordinate Australian foreign investment filings with the merger control notifications in China and other Asian countries. To service clients in this environment you need to provide a well connected and seamless network which is in front of the wave.” Dave Poddar, Partner, Sydney 18 Clifford Chance Our Insights into Antitrust Trends
  19. 19. ASIA PACIFIC South Korea China “2013 has seen antitrust enforcement in Asia really take off with China’s fining record being broken three times this year alone.” Richard Blewett, London and Beijing The Korean Fair Trade Commission (KFTC) is a highly active regulator, accounting for a significant volume of the enforcement action in Asia. Of the 27 detected cartels operating within Asia in 1990-2007, 15 were investigated by the KFTC. Hong Kong Hong Kong’s competition policy is currently focused on the telecoms and broadcasting sectors. Taiwan The Taiwan Fair Trade Commission (TFTC) has been active since 1992. In March 2011, the TFTC imposed fines totaling NT$31 million (US$1 million) on 31 distributors of tobacco for fixing the price of cigarettes. Philippines “A new cross-sector competition law is expected to come into force by early 2015. Given that the new law does not contain a merger control regime, it can be expected there will be a heavy focus on enforcement actions (which must be taken by way of litigation in the High Court) and follow-on litigation.” Stephen Crosswell, Consultant, Hong Kong There remains no dedicated, economy-wide competition authority in the Philippines. However, general criminal and civil laws, and certain industry-specific laws, outlaw cartel conduct and proposed antitrust laws have been debated in Congress. Indonesia Indonesian competition law is enforced by the Supervisory Commission for Business Competition (KPPU), which also has powers to undertake market studies and review government policies to determine whether they are consistent with fair competition. The KPPU is active in enforcement with a consistently high volume of reported cases each year. A large number of these relate to bid rigging, but a significant portion also concern cartels, abuse of dominance and mergers. A recent example is the announced probe of the country’s soybean market. Clifford Chance Our Insights into Antitrust Trends 19
  20. 20. ASIA PACIFIC China has cemented its position as a key merger control regime and is now extending its antitrust enforcement China’s merger regime is now indisputably one of the big three along with the EU and the US, although concerns persist over timing and predictability: n The review process is slow and cases routinely go into Phase II or even have to be refiled n Non-competition factors play a role as MOFCOM is required to take into account a transaction’s impact on national economic development n The intervention threshold is low – around 20% market share in the recent Glencore/Xstrata case This year has also really seen Chinese antitrust enforcement take off with a number of high profile cases brought against domestic and international businesses: Spotlight on China – future trends n Initiatives to shorten MOFCOM’s review period are being examined. A simplified procedure with clear and predictable parameters will facilitate review processes. In piloting the new procedure, MOFCOM has suggested around 50% of cases were cleared within 30 days n Increasing consolidation globally may lead to more cases giving rise to concerns, including in China. This may lead to increasing levels of intervention in sensitive sectors, and increasing reliance on national economic development as a basis for intervention More procedural guidance on antitrust enforcement is expected. Chinese antitrust n investigations typically take only a few months (two months in the Chinese liquor case) compared to years in Europe. This can place companies under severe pressure n Increasing sophistication of decision-making is expected. This is likely to lead to reliance on robust economic analyses in notifications n January 2013, the National Development and Reform Commission (NDRC) reported In that it had investigated a total of 49 price-related cases since the enactment of China’s Anti-Monopoly Law. The investigations covered a broad range of industries, including pharmaceuticals, paper-making, LCD panels, cement, insurance and shipping n December 2012, the State Administration for Industry and Commerce (SAIC) reported that In it commenced investigations in at least 17 cases. The investigations covered a similar broad range of industries, including construction, gas, tourism, electronics and used cars   n Recent press reports suggest that investigations are likely in the IT and retail banking sectors “China’s merger regime continues to pose unique challenges. In particular, remedies need to be tailored to the specific requirements of the Chinese market.” Emma Davies, Partner, Hong Kong and Shanghai 20 Clifford Chance Our Insights into Antitrust Trends
  21. 21. ASIA PACIFIC Australia The incoming new Australian Government is preparing a “root and branch” review of the Competition and Consumer Act 2010 (CCA). Merger control – guidelines released In late September 2013, the Australian Competition and Consumer Commission (ACCC) issued its revised Merger Process Guidelines. This has highlighted the increased length of time taken in reviewing mergers in Australia, particularly those in industry sectors such as grocery, petrol and food. For companies engaged in MA in Australia it emphasizes the importance of being well prepared for merger control matters so as to ensure a timely and focused review process. Antitrust enforcement The ACCC released its Compliance and Enforcement Policy in February 2013 and is refining it as the year progresses. The ACCC has indicated that it is currently prioritising its work on: n competition and consumer issues in highly concentrated sectors, in particular in the supermarket and fuel sectors n online competition and consumer issues, including conduct which may impede emerging competition between online traders or limit the ability of small businesses to compete online effectively n credence claims (for example “organic”), which have the potential to have a significant impact on consumers and therefore the competitive process if those claims are inaccurate and disadvantage a competitor n misleading carbon pricing representations Interaction of competition regulation, foreign investment regulation and other competition regimes in Asia As a significant exporter of mineral and agricultural commodities as well as energy (LNG) to Asia, the interaction of Australia’s merger regime with other antitrust law regimes in the Asia-Pacific region is increasing. This interaction is increasingly important to companies and their advisers, due to the growing number of antitrust regimes in Asia. Separately, inbound investments by foreign persons over certain thresholds are subject to mandatory review by the Foreign Investment Review Board (FIRB) and are assessed against a foreign interest test. The interaction between the ACCC and FIRB is an important consideration to take into account in transaction planning. Spotlight on Archer Daniels Midland/GrainCorp n 26 April 2013, US food giant Archer Daniels Midland (ADM) proposed a A$3.0 billion On takeover of GrainCorp, Australia’s only independent listed grain handler n There has been clearance of the ADM/GrainCorp takeover from the regulators in Europe, South Africa, Canada and Japan n ADM is still working with regulators in Australia and China. In Australia, the ACCC considered the takeover and elected not to oppose it, but, as at November 2013, ADM is still waiting for foreign investment approval from FIRB and the Australian Treasurer “It is important for businesses to carefully consider the terms of reference for the ‘root and branch’ review, especially with respect to any submissions they would like to make and how best to be prepared for any changes.” Dave Poddar, Partner, Sydney Clifford Chance Our Insights into Antitrust Trends 21
  22. 22. AFRICA AND THE MIDDLE EAST Growing significance of antitrust in Africa and the Middle East New regimes, many with low (or non-existent) filing thresholds and long review periods, need to be factored into deal planning. Behavioral antitrust prohibitions also exist in a number of countries, but with varying levels of enforcement. UAE n New regime in February 2013 although several excluded sectors (such as telecoms, financial services, oil and gas, sea and air transport, electricity, water) and no implementing regulations Zambia n August 2013, the Authority carried out first-ever dawn raids since new In competition law introduced in 2010 Namibia n Large number of notifiable transactions as filing thresholds are very low n July 2013, the Competition Commission rejected a proposed merger In between Puma Energy’s liquid petroleum gas business and rival Namox South Africa n Most developed/active regime in Africa. Recently acquired new powers to conduct market inquiries – private healthcare first sector to be reviewed Current focus on information exchange between competitors n (minority investments or JVs) by prohibiting common staff/directors or imposing limits on information flows “The UAE’s new regime outlines significant sanctions for failure to notify mergers. It is unclear whether the Ministry of Economy would assert authority in the absence of implementing regulations. No clear market practice has yet developed.” Nigel Wellings, Partner, Dubai 22 Clifford Chance Our Insights into Antitrust Trends High levels of enforcement Competition regimes N o competition law or limited enforcement
  23. 23. AFRICA AND THE MIDDLE EAST Common Market for Eastern and Southern Africa (COMESA) Background Key issues n Second supra-national merger control regime in Africa – first to impose mandatory filing obligations n Lack of turnover/asset thresholds 19 n COMESA member states: Burundi; Comoros; Democratic Republic of the Congo; Djibouti; Egypt; Eritrea; Ethiopia; Kenya; Libya; Madagascar; Malawi; Mauritius; Rwanda; Seychelles; Sudan; Swaziland; Uganda; Zambia and Zimbabwe n COMESA Competition Commission (CCC) based in Malawi, operational since January 2013 Filing obligation n Purchaser or target has sales in two or more COMESA member states n turnover/asset thresholds No n Mandatory filing within 30 days of “decision to merge” n Non-suspensory regime, but CCC considers closing prior to filing is prohibited n Fines of up to 10% of parties’ COMESA turnover for failure to file n Limited local nexus requirement: purchaser OR target can satisfy the two member state test n High filing fee: up to a maximum of US$ 500,000 n Long review period (maximum 120 days/ 6 months), but fast track procedure under consideration n Exclusive jurisdiction? Ongoing disputes about whether parallel national filings required in some jurisdictions n Public interest considerations may be taken into account n Changes on the horizon? CCC is understood to be considering making enhancements to the regime but not expected before 2014 Conclusions n New regime has major implications for companies considering making acquisitions or disposals of assets in COMESA states n Despite recognition of need for transparency, significant uncertainty remains as to interpretation of provisions and how merger regime will operate in practice Clifford Chance Our Insights into Antitrust Trends 23
  24. 24. Sector spotlight 24 4 Clifford Chance Our Insights into Antitrust Trends n Financial Services n Information Technology n Pharmaceuticals
  25. 25. FINANCIAL SERVICES The financial services sector continues to be subject to numerous investigations by antitrust authorities across the globe Focus on the wholesale markets – tackling the perceived failings from the financial crisis n Reflecting the international scope of markets, multiple investigations around the world, often with parallel regulatory investigations: • Inter-bank interest rates: involving competition and financial regulators in Europe, the US, Switzerland, Canada, Singapore and Japan • Competition and regulatory investigations in relation to oil pricing and benchmarks n Antitrust investigations in Hungary (mortgage market – ongoing), Turkey (fined 12 banks in relation to deposits, credit and credit card services), Portugal (information exchange – ongoing), Germany (ATM prices for non-bank customers – ongoing), and EC (recently-closed case against the European Payments Council in relation to e-payments standardisation) Access to data • Previous “light touch” approach to financial regulation leading to series of new regulations – for example, EC proposed a Regulation on benchmark indices in financial instruments/ contracts n Tension between need for greater transparency to facilitate financial stability and risk of collusion arising from too much transparency Procedural differences in timing and approach of investigations: whereas EC typically n concludes investigations with all parties at the same time, other authorities (such as US and Canada) have often announced settlement of cases with individual participants Continuing interest in retail markets, particularly in EU countries n Focus on practices that may impede access to market data and decrease market transparency: • Thomson Reuters (TR): EC concerned that TR was locking in customers by preventing them from using Reuters Instrument Codes (RICs) to access other providers’ data and switch. EC accepted commitments which allow TR customers to use RICs to switch provider • tandard Poor’s (SP): EC concerned SP’s fees for distribution of US International S Securities Identification Numbers (ISINs) were unfairly high. EC accepted commitments to abolish some licensing fees and to cap others • redit Default Swaps: EC and US investigating whether some investment banks and C Markit (and, in the EU, ISDA) colluded to prevent exchanges from entering the credit derivatives business between 2006 and 2009 by restricting the inputs allegedly necessary for such entry n Worldwide focus on payment cards: EC’s 2007 Mastercard prohibition decision currently on appeal to European Court of Justice, and ongoing/recent cases in EU, Australia, Mexico and Singapore, as well as the numerous ongoing class actions in US n Retail banking and financial markets remain priority in many countries with particular focus on transparency, switching and high concentration levels – such as Sweden and the UK Clifford Chance Our Insights into Antitrust Trends 25
  26. 26. FINANCIAL SERVICES EC has used State aid tool to re-shape Europe’s retail banking sector EC recently updated its State aid framework for “rescued” banks. The framework aims to maintain financial stability, safeguard Europe’s internal market and protect the interests of taxpayers. EC has worked on 67 bank restructurings – equivalent to around 25% of EU’s banking sector (in terms of assets). Many cases resulted in banks having to make significant disposals (such as major Lloyds Banking Group and RBS branch disposals – neither completed at this time) and agree to various behavioral commitments (such as price leadership bans, acquisition bans). EC is also introducing a number of other measures to bring about the EU Banking Union and avoid further banking crises – CRD IV package, Basel III etc. Mergers in financial services – consolidation in trading and posttrading services Significant recent MA activity in relation to clearing and exchange-trading due to prolonged downturn in trading volumes together with increased regulation following the financial crisis (Dodd-Frank Wall Street Reform Act in the US and the European Markets Infrastructure Regulation in EU). Antitrust authorities have adopted a cautious approach when considering post-merger market positions and have not readily given the green light to notified deals. Transaction NYSE/Deutsche Börse (2011) Tokyo Stock Exchange/Osaka Securities Exchange (2012) Cleared in Japan (subject to conditions) Maple Group/TMX (2012) Cleared in Canada (commitments to financial regulator deemed sufficient) NYSE/ICE (2013) Cleared in US, EU Cleared in UK BATS/Direct Edge (2013) Clifford Chance Our Insights into Antitrust Trends Cleared in UK, Portugal, Spain EMCF/EuroCCP (2013) 26 Cleared in UK London Stock Exchange/LCH.Clearnet (2012) Greg Olsen, Partner, London Cleared in US (with conditions) and blocked in EU BATS/Chi-X (2011) “Scrutiny from competition authorities and financial regulators has intensified since the financial crisis, and shows no signs of abating.” Outcome Cleared in US
  27. 27. INFORMATION TECHNOLOGY The information technology sector has been a real focus of antitrust authorities around the world, in particular in relation to the provision of internet services, digital distribution and patent enforcement. Tensions between the enforcement of IP rights and antitrust laws are set to continue for some time. Global spotlight on information technology n Focus of antitrust authorities around the world, in particular in Europe: • EC’s cases against Intel, Microsoft and Google • French, UK, Italian and German authorities have investigated Apple (in relation to distribution contracts, app store practices), Google, Oracle (database support), Amazon (pricing policies), and Expedia (agreements with hotels) n Also interest from outside EU, including US (Apple’s ebook distribution practices and Google’s search practices), Japan (HP’s complaint against Oracle), India (Google), China (NDRC imposed its heaviest fine yet and behavioral commitments on six participants in LCD cartel) n Focus on internet services likely to shift over time from home to mobile platforms n also investigating Apple’s iphone distribution EC practices in Europe and Google’s distribution practices and related applications on its Android platform Major themes in IT antitrust enforcement, particularly in Europe, include: Safeguarding interoperability. Various cases since EC’s landmark Microsoft decision in 2004: n investigating complaint by National Instruments EC against Mathworks for refusing to license software that would allow interoperability HP versus Oracle HP complained that Oracle should “port” its Oracle Database to HP’s Itanium platform. Complaint rejected by French and Spanish authorities and withdrawn before EC by HP. Suggests authorities not (yet) willing to find positive obligation on firms with market power to develop software for benefit of competitors so as to facilitate competition. n Cisco gave interoperability commitments to secure EC clearance for Tandberg acquisition in 2010; by contrast, EC cleared Microsoft/Skype unconditionally (currently under appeal by Cisco) Use of IP rights in standardised technology. Several investigations including IPCOM, Rambus, Qualcomm, Samsung, Rockstar and Google. Highlights difficult relationship between IP rights and competition law. In Samsung, the EC alleged Samsung’s injunction request (which it was fully entitled to pursue under national IP law) constituted an abuse of dominance, on basis that the request could force its potential licensee, Apple, to accept higherthan FRAND royalties IT cartel enforcement. Cartel enforcement on the rise since turn of the millennium, for example: LCD screens and DRAM chips (both EC decisions in 2010), and investigations ongoing in optical disc drives, batteries and smartcards “IT is hot from an enforcement perspective, and regulators are becoming increasingly sophisticated and knowledgeable about the sector. As the role of IT in our lives increases, so does the scrutiny from regulators across the globe. These regulators are proving willing to test the boundaries of traditional antitrust theories as applied to new technologies. Companies in the IT sector have to anticipate that to avoid costly, burdensome investigations, or even fines.” Dieter Paemen, Counsel, Brussels Clifford Chance Our Insights into Antitrust Trends 27
  28. 28. PHARMACEUTICALS The US and EU antitrust authorities have continued their enforcement focus on “pay for delay” cases in the pharmaceutical sector with major decisions on this area in both jurisdictions in 2013. The EU’s Pharmaceutical Sector Inquiry, which ended nearly half a decade ago, continues to have far-reaching effects. Patent litigation settlements Ground-breaking decisions from US Supreme Court and EC into patent litigation settlements – but with a slight difference in approach n Supreme Court’s judgment in FTC v Actavis US underscored need for an “effects” review when it held that agreements which include transfers of value to the generic company should be assessed on a rule of reason basis n contrast, EC treated Lundbeck’s agreement with By several generic companies to delay entry of several generic antidepressant medicines as an antitrust infringement “by object”, with no need for an “effects” review n continues to investigate a number of similar EC cases, including: the Servier case regarding Perindopril; Johnson Johnson and Novartis regarding Fentanyl; and Cephalon and Teva regarding Modafinil n UK, Office of Fair Trading continues its In investigation into GSK and a number of generic companies in connection with patent settlement arrangements concerning Paroxetine Aftermath of the EU pharmaceutical sector inquiry While the 2008/2009 Sector Inquiry was widely criticized, it nonetheless continues to have far-reaching effects, including on legislative proposals to introduce a single “European Patent” to replace national patents. It has also influenced EC proposals for legislative changes to pharmaceutical pricing and reimbursement At EU level: n harmaceutical cases continue to represent a P significant proportion of all open EC antitrust cases, the majority being “pay for delay” cases n C continues its annual review of patent settlement E agreements n C’s March 2012 proposal to revise the E Transparency Directive includes some key components drawn from the Sector Inquiry results, going to pricing and reimbursement of pharmaceuticals At the national level: n n France, competition authority has begun I investigation into the distribution and supply chain n Romania, second review of the sector in two years In (2011 and 2013) opened I n taly and Spain have open cases against Pfizer alleging attempts to exclude generic competition to Xalatan 28 Clifford Chance Our Insights into Antitrust Trends What is pay for delay? – Pay for delay is said to occur if an originator company settles patent litigation with a generic, and makes a transfer of value to the generic in return for a delayed entry to the market. The US Supreme Court decision in FTC v Actavis qualifies the theory by noting that value transfers cannot always and automatically be said to be in return for delayed entry, even if delayed entry also results. “We expect a continued antitrust focus on healthcare in both the US and EU, in particular in relation to patent settlements. Asia continues to build up antitrust capabilities - China in particular has had multiple investigations and merger decisions in the sector, although its current focus is in the context of other regulatory laws prohibiting bribery or other irregular business practices.” Tony Reeves, Partner, Brussels
  29. 29. Clifford Chance and Thomson Reuters eLearning Compliance training in multiple languages Discover more and request a trial Clifford Chance and Thomson Reuters have launched a suite of eLearning courses in the areas of competition and anti-bribery. The training enables compliance, legal and HR officers to provide enterprise-wide learning and insights that mitigate the risk of employee activity exposing companies to liability. For more information on the competition or the anti-bribery courses, and to request a free eLearning trial, please contact: Helping businesses comply with competition/antitrust laws The competition/antitrust eLearning courses focus on helping business to adapt an organisationwide approach to generating awareness of and familiarity with what comprises anticompetitive behaviour. Available in 20 languages, the training sets out the fundamental principles of legal compliance with competition/antitrust laws and illustrates these using common business scenarios. The courses cover law in the EU, the US, Japan, China, India, Russia and Canada and are written and regularly reviewed by Clifford Chance lawyers with both local knowledge and cross-border experience on high profile competition/antitrust cases. Aleks Czerwinski Marketing Executive, Clifford Chance T: +44 (0)20 7006 4553 E: aleks.czerwinski@cliffordchance.com Stephen Fitzmaurice Marketing Manager, Clifford Chance T: +44 (0)20 7006 1109 E: stephen.fitzmaurice@cliffordchance.com Clifford Chance Our Insights into Antitrust Trends 29
  30. 30. Global MA Toolkit Clifford Chance Global MA Toolkit The essential interactive resource for anyone involved in MA transactions. The Clifford Chance Global MA Toolkit comprises a growing collection of web-based transaction tools and in-depth analysis of the most important market and regulatory developments in MA regimes across the globe. Simple and effective. Available 24/7. Easy to access. Visit: www.cliffordchance.com/GlobalMAToolkit Global MA Trends: Interactive investment flow maps Our new interactive maps show current MA flows into and out of each major investment region of the globe giving you insights into the latest trends in cross-regional MA. The maps are easy to use, simple and effective. Available through the Global MA Toolkit at www.cliffordchance.com/GlobalMATrends European MA: On the road to recovery? This is a multi-regional survey conducted in 2013 into how large corporates view Europe as an investment destination. The findings confirm that Europe remains very much on the radar for investors – including those from the US and Asia Pacific as well as from within Europe itself – and identifies specifically what makes Europe attractive www.cliffordchance.com/EuropeanMAReport Editors for this publication Alastair Mordaunt T: +44 20 7000 4966 E: alastair.mordaunt@cliffordchance.com 30 Clifford Chance Our Insights into Antitrust Trends Richard Blewett T: +44 20 7000 8211 E: richard.blewett@cliffordchance.com
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