European Court of Justice decides that below-threshold mergers may be investigated by national competition authorities
In July 2021, the Paris Court of Appeal asked the ECJ for clarification on whether national competition authorities are only entitled to review transactions under EU and national merger control rules, or if they can also apply an abuse of dominance assessment and block transactions retrospectively. The ECJ’s preliminary ruling of 23 March 2023 states that antitrust enforcers can investigate whether a completed merger or acquisition results in an abuse of dominance, even if the transaction was not subject to merger control approval.
Switzerland overrides merger control rules for UBS’s acquisition of Credit Suisse
The Swiss government has approved UBS’s acquisition of Credit Suisse by overriding national merger control rules using emergency powers. Following a significant outflow of funds from Credit Suisse, the Swiss government utilised its powers to prevent the bank from running out of cash and to avoid causing serious damage to local and international financial markets. The Swiss Financial Market Supervisory Authority (“FINMA”) has the authority to bypass the Competition Commission and approve a bank merger if it deems it necessary in the interest of lenders within the scope of the Cartel Act of Switzerland. FINMA’s chair, Marlene Amstad, stated that “Regulatory law gives us the power to override the competitive situation in the interests of financial stability, and we have made use of that here.”
Belgium approves banana supply chain sustainability initiative
The Belgian Competition Authority has granted approval for a collaboration between a sustainable trade association and five supermarkets aimed at improving wages in the banana supply chain. This is the first time that the regulator has approved such an agreement based on sustainability reasons. In addition, the association has committed to oversee the execution of the initiative throughout the supply chain and to notify the Competition Authority of any significant updates or modifications. The objective of the sustainability initiative is to eliminate the gap in living wages for bananas sold in Belgium by the 2027.
TikTok could be banned in the USA
The Committee on Foreign Investment in the United States (“CFIUS”), an inter-agency committee of the US government, has requested the Chinese company ByteDance, the owner of the short video hosting service TikTok, to ensure the security of user data in the United States. For this purpose, ByteDance must sell its majority stake in TikTok. If ByteDance will not establish a partnership with a US company to manage TikTok’s US operations, TikTok is expected to be banned in the US. In response to CFIUS, ByteDance announced plans to partner with Oracle to manage TikTok’s US operations. However, by claiming that the US aims to exert commercial pressure and political manipulation over China, the Chinese government announced that it will “firmly oppose” the forced sale of TikTok and that any sale involving the export of technology must be in accordance with Chinese laws.
Latest developments in the Microsoft/Activision Blizzard deal
The UK’s Competition and Markets Authority (“CMA”) announced its updated evaluations regarding Microsoft’s acquisition of Activision Blizzard on 24 March 2023. Based on newly obtained evidence, the CMA reduced its concerns about the supply of gaming consoles in the UK. Furthermore, the CMA did not change its preliminary view that the transaction would strengthen Microsoft’s already strong position in the cloud gaming market in the UK, thereby restricting competition. While the evaluations of the CMA and other authorities regarding this transaction are on-going, Japan’s Fair Trade Commission announced on 28 March that it approved the transaction.
Heineken’s EUR 2.2 billion deal approved in South Africa on conditions including Strongbow divestment
In November 2021, Heineken announced plans to create a new business, in which it would hold a majority stake, by merging Distell and Namibia Breweries with Heineken South Africa in a deal valued at EUR 2.2 billion. The Competition Tribunal of South Africa has now approved Heineken’s planned purchase of Distell with the conditions that Heineken sell off its Strongbow cider brand and implement a set of corrective measures to address issues related to employment and public interest. Heineken announced that it anticipates finalising the deal in the near term.
AG Rantos states non-compete clauses between potential competitors can be considered market sharing
The Court of Appeal of Lisbon had previously asked European Court of Justice Advovate General Athanasios Rantos for his opinion regarding a partnership agreement between electricity distributor Energias de Portugal (“EDP”) and retailer Sonae for agreeing to not enter each other’s market for two years, for which the Portuguese Competition Authority imposed a fine on both parties in 2017. AG Rantos has now given his opinion, stating that a non-compete clause among potential competitors would constitute an infringement by object unless it is an ancillary restriction. AG Rantos also noted that the agreement was made a few months before the liberalisation of the Portuguese electricity supply market, and that as the market incumbent, EDP had an interest in preventing the entry of new potential competitors.
For further information please contact Bulut Girgin, Counsel, Head of Competition & Compliance, at firstname.lastname@example.org, Simru Tayfun, Associate, at email@example.com, Orçun Horozoğlu, Associate, at firstname.lastname@example.org, or Efe Utku Çal, Student Intern, at email@example.com.