Glory Days: Concurrences 2022 Antitrust Writing Award Readers’ Choice Winner

An article co-authored by Jay Jurata and Emily Luken of Orrick’s Antitrust and Competition practice group is the winner of Concurrences 2022 Antitrust Writing Awards Readers’ Choice Award in Intellectual Property Academic Articles.

First published in San Diego Law Review, their article, “Glory Days: Do the Anticompetitive Risks of Standards-Essential Patent Pools Outweigh their Procompetitive Benefits,” offers a new perspective in assessing the competition risks and benefits of using patent pools to resolve SEP licensing issues.

The Antitrust Writing Awards highlight a broad range of contributions from lawyers and scholars on competition law. Over 350 articles were submitted for nomination in 2022, and the Reader’s Choice award is given to the academic and business articles with the most reader votes. Congratulations to the winners!

The European Antitrust Enforcers’ Response to the Russia/Ukraine Crisis

EU flag

After the various measures taken by countries, international organizations and companies to pressure Russia to stop its aggression against Ukraine, it is now the turn of the antitrust enforcers of the European Competition Network (ECN) to make their contribution. They did so by publishing a joint statement on 22 March, in which they indicated that they would be pragmatic, if not flexible, in assessing the behaviour adopted by companies in response to the severe difficulties encountered in connection with the war. They emphasised that cooperation between companies to address war disruptions – for example to ensure the supply, purchase and fair distribution of scarce products and inputs, or to try to minimise the consequences of compliance with EU sanctions – would likely not be considered problematic under antitrust law. The European Antitrust Enforcers also added that they would not actively pursue those temporary and necessary cooperation measures, and that they would provide informal guidance to companies that had doubts about the compliance of such cooperation. However, the European Antitrust Enforcers pointed out that they would be ruthless with companies that take advantage of the crisis to collude at the expense of free competition. This initiative is reminiscent of the one they adopted in response to the COVID-19 crisis, which was perceived with some relief by companies placed under unprecedented constraints.

View the statement →

2022 Antitrust Writing Awards Nominations

Two articles authored by Orrick attorneys have been selected as nominees for a 2022 Antitrust Writing Award from Concurrences, a publication of The Institute of Competition Law.

The winners of the award are chosen in part by popular vote. You can view the articles and cast your vote(s) here:

• “The EU Commission Publishes Guidance and Expands its Jurisdiction by Capturing Transactions Below the Jurisdictional Thresholds of National and EU Merger Control Regimes,” by Marie-Laure Combet, Douglas Lahnborg, Saira Henry, and Matthew Rose; originally published in e-Competitions.

• “Glory Days: Do the Anticompetitive Risks of Standards-Essential Patent Pools Outweigh their Procompetitive Benefits?” by Jay Jurata and Emily Luken; originally published in San Diego Law Review.

Largest Ever Annual Adjustment to the HSR Premerger Notification Thresholds Announced

Takeaways

  • The new minimum HSR “Size of Transaction” threshold is increasing from $92 million to $101 million.
  • New thresholds apply to transactions closing on or after February 23, 2022.
  • This $9 million increase is the largest ever annual adjustment to the minimum HSR “Size of Transaction” threshold.
  • Failure to file may result in a fine of up to $46,517 per day of non-compliance.
  • The HSR Act casts a wide net, catching mergers and acquisitions, minority stock positions (including compensation equity and financing rounds), asset acquisitions, joint venture formations, and grants of exclusive licenses, among others.

The Federal Trade Commission announced revised Hart-Scott-Rodino (“HSR”) filing thresholds on January 24, 2022, as required by the HSR Act, based on the change in the US gross national product. The new minimum HSR “Size of Transaction” threshold is increasing to $101 million from the prior threshold of $92 million. The increase of $9 million, or 9.8%, is the largest annual adjustment to the minimum HSR filing threshold since the adjustments began in 2005. The new threshold will apply to transactions closing on or after February 23, 2022. The HSR Act and Rules require that parties to certain transactions submit an HSR filing and wait up to 30 days (or more, if additional information is formally requested) before closing, which gives the government time to review the transaction for potential antitrust concerns. The HSR Act applies to a wide variety of transactions, including those outside the usual M&A context. Potentially reportable transactions include mergers and acquisitions, minority stock positions (including compensation equity and financing rounds), asset acquisitions, joint venture formations, and grants of exclusive licenses, among others.

Determining HSR reportability: Does the transaction meet the Size of Transaction test?

An HSR filing may be required when, as a result of the transaction, the acquiring person will hold an aggregate amount of voting securities, non-corporate interests, and/or assets valued in excess of the HSR “Size of Transaction” threshold in place at the time of closing. Calculating the Size of Transaction may require aggregating voting securities, non-corporate interests, and assets previously acquired, with what will be acquired in the contemplated transaction. The Size of Transaction may also include contingent payments, earnouts, liabilities, and certain debt retired as consideration for the transaction. Talk to HSR counsel to determine your Size of Transaction.

Size of Transaction Test
2021 Threshold

Closing before February 23, 2022

2022 Threshold

Closing on or after February 23, 2022

>$92 million >$101 million

 

If the transaction will close before February 23, 2022, the $92 million threshold still applies; closings on or after February 23, 2022 will be subject to the higher $101 million threshold.

Determining HSR reportability: Do the parties to the transaction meet the Size of Person test?

Certain transactions that satisfy the Size of Transaction threshold must also satisfy the “Size of Person” thresholds to be HSR-reportable. These adjusted thresholds are also effective for all closings on or after February 23, 2022. While the general Size of Person test is set out below, an alternative test may apply to transactions where the Acquired Person is not engaged in manufacturing. Talk to HSR counsel to determine which entity’s sales and assets must be evaluated and which test applies.

Size of Person Test
Size of Transaction >$101 million, but ≤$403.9 million One party (or its Ultimate Parent Entity) has ≥$202 million in total assets or annual net sales, and
The other party (or its Ultimate Parent Entity) has ≥$20.2 million in total assets or annual net sales
Size of Transaction >$403.9 million Reportable regardless of the Size of Person test

 

Filing Fee

For all HSR filings, one filing fee is required per acquisition. The amount of the filing fee is based on the Size of Transaction. Below are the adjusted fee ranges for 2022.

Size of Transaction Filing Fee
More than $101 million, but less than $202 million $45,000
$202 million or greater, but less than $1.0098 billion $125,000
$1.0098 billion or greater $280,000

 

Failure to File Penalty

Failing to submit an HSR filing can carry a significant financial penalty for each day of non-compliance. The maximum civil penalty for HSR violations also adjusts annually and the adjusted maximum civil penalty as of January 10, 2022 is set out below.

Failure to File Penalty
Up to $46,517 per day in violation

 

Always consult HSR counsel to determine whether your transaction is HSR-reportable, especially before concluding that a filing is not required. Even if the Size of Transaction and Size of Person tests are met, the transaction may be exempt from the filing requirements. If you have any questions regarding HSR Act reporting requirements or the new thresholds, please contact the authors listed above or your usual Orrick contact.

2021 Antitrust Writing Awards Nominations

An article authored by Orrick attorneys has been nominated for a 2021 Antitrust Writing Award as a “Best Business Article” in the intellectual property category. The Awards Jury will select one winning article per category and the piece is also eligible for the “Reader Award” distinction, which is decided by popular vote.

You can view the article and cast your vote here:

“SEP Licensing in Supply Chains: ECJ Gets Opportunity for a Major Trend-Setting Decision,” by Lars Mesenbrink, Julius Schradin, and Jay Jurata

Voting closes on June 28, 2021.

No more ‘flying under the radar’: capturing transactions below the jurisdictional thresholds of national and EU merger control regimes

EU flag

The European Commission (“Commission”) is expanding its jurisdiction over transactions by encouraging national competition authorities (“NCAs”) of the EU Member States to ‘refer’ certain transactions to it that fall below the thresholds for mandatory notification at the EU and the national level. On 26 March 2021, the Commission published guidance (“Guidance”) setting out referrals that are ‘encouraged’ and how and when it will accept such referrals. This development has not required legislative changes (which would have taken some time and also required unanimity among EU Member States) but rather the Commission is resuscitating an existing provision, the so-called “Dutch clause”, namely Article 22 of the EU Merger Regulation (“EUMR”).

The Commission hopes to remedy what it perceives as an enforcement gap under the turnover-based thresholds for notification. In particular, this change in policy aims to catch transactions that would otherwise fall outside its jurisdiction as the turnover thresholds would not be met, but the parties otherwise have an important competitive position that is not reflected in their turnover, including so-called “killer acquisitions”. The Commission considers this to be a particular issue in the digital economy, pharmaceutical sector and other ‘innovation-driven’ sectors.

Only a couple of Member States (Austria and Germany) have implemented transaction value-based thresholds to catch acquisitions of companies with low turnover and high valuation. The Guidance allows the Commission to enable a more systematic EU-wide response.

The substantive test remains unchanged: the Commission will continue to assess whether there is a risk of significant impediment to effective competition (the “SIEC test”).

Transactions falling within the new policy

According to the Guidance, Article 22 referrals will be encouraged for transactions where the turnover of at least one party does not reflect its actual or future “competitive potential.” A non-exhaustive list of examples includes acquisitions of: (i) promising start-ups, (ii) “important innovators,” (iii) an “actual or potential important competitive force,” (iv) companies having access to key raw materials, infrastructure, data or IP rights, and (v) companies providing key inputs for other industries.

Whether a transaction is eligible for an Article 22 referral depends on two legal requirements: the transaction must (i) affect trade between Member States, and (ii) threaten to significantly affect competition within the territory of the Member State(s) making the request. The Commission provides examples of the relevant factors for the assessment of these criteria:

  • Trade between Member States could be considered affected, for example, based on the location of potential customers, data collection, or likely future commercialisation of IP rights.
  • The requirement of a threat to “significantly affect competition” within the relevant territory will be met if a preliminary assessment reveals a real risk that the transaction could result in the creation or strengthening of a dominant position, the elimination of an important competitive force (in particular, a new important innovator), the foreclosure from a market or supplies, and leveraging a strong market position from one market to another through exclusionary practices. The preliminary assessment conducted to verify this second criterion is without prejudice to the subsequent formal assessment of the transaction if the Commission accepts the referral.

Procedure/timing

The Commission intends to play an active role in the enforcement of the new policy. It is willing to “cooperate closely” with NCAs to identify transactions that would fall within the scope of this new policy, or even invite NCAs to invoke Article 22 in certain cases. Third parties are encouraged to contact the Commission or NCAs, if they consider a transaction appropriate for referral, provided they have sufficient evidence to enable a preliminary assessment.

The timing for referral is as follows:

  • In cases where there is no mandatory filing at a national level, NCAs have 15 working days to request referral, starting from the date on which the transaction is made known to them (according to the Guidance, this is when sufficient information is available to make a preliminary assessment);
  • The Commission will inform the other NCAs of the referral request “without delay”;
  • Other NCAs then have 15 working days to join the initial request (direct communication between NCAs is also encouraged by the Commission); and
  • After 10 additional working days, the Commission will be deemed to have adopted a decision to examine the transaction, if it has not already done so.

While the referral is subject to the deadlines set out above, the Commission is willing to accept Article 22 referrals up to six months after completion of the transaction or the transaction having become known in the EU (whichever is the later), or even later in “exceptional situations”.

Implications for parties to corporate transactions

Standstill effect and risk of gun jumping: The obligation not to close a transaction applies to transactions that have not completed at the date on which the Commission informs the parties that an Article 22 referral request has been made, after which the parties risk substantial gun jumping fines if they decide to close. The standstill obligation ceases if the Commission subsequently decides not to examine the concentration. The standstill obligation does not apply to transactions that have already completed before the Article 22 referral process is initiated such that no gun jumping fines can be incurred. The Commission will inform the parties as soon as possible if a referral is being considered to allow the parties to refrain from completing the transaction.

Duty to notify: Once the Commission has accepted Article 22 jurisdiction, the acquirer will be under a duty to notify the transaction under the standard notification procedure under the EUMR.

Potential effects on the transaction and risk of sanctions: Once the Commission has accepted jurisdiction, the transaction will be reviewed based on the standard substantive and procedural EUMR rules, which for transactions that raise concerns include the risk of remedies and in the worst-case scenario, a prohibition decision. If the transaction has not yet completed, there will be no real difference with the standard rules for notifiable transactions, although a decision to apply Article 22 adds to the timetable and may delay closing. However, effective remedies could prove difficult to implement for transactions that have already closed depending on the degree to which the acquired business has been integrated, particularly remedies requiring structural changes (e.g. full or partial divestment) to restore the situation pre-transaction.

The end of the “one stop shop” within the EU?: While under Article 22, the territorial jurisdiction is in theory limited to the EU Member States that have either referred the concentration to the Commission or joined the initial referral(s), the Commission takes into account the effects of a transaction in the rest of the EU whenever a relevant market has a geographic dimension larger than the referring Member State(s). This is likely to be the case in many digital and innovation markets potentially covered by the new policy and tech companies with global ambitions should assume that the Commission will investigate the effect of the transaction on an EU-wide basis.

The Guidance states that if a transaction has already been notified in one or more EU Member States that did not request a referral or join such referral request, this could be a factor against accepting a referral. However, for the purposes of legal certainty and considering potential for inconsistencies, in particular in relation to any remedies, we encourage the NCAs and the Commission to maintain a high level of cooperation to avoid overlapping investigations.

Our recommendations in light of the new policy

This is a major change to the Commission’s merger control policy. With this new policy, which is not limited to “Big Tech” or the digital economy (which has driven recent policy shifts or discourse relating to such shifts), EU merger control no longer provides for the legal certainty resulting from turnover-based notification thresholds. Several months of delay could be added between signing and closing, remedies could be imposed after the implementation of a transaction, and completed acquisitions might have to be unwound, all for transactions which prior to this policy change would not have faced any merger control review in the EU.

In light of this, transaction parties should consider:

Assessing the risk of falling within the scope of the new policy: Transaction parties should consider if a transaction falls within the categories of potential Article 22 referrals set out above. They should also consider if the transaction is likely to raise competition concerns – including through the strengthening of dominance/market power, access to advanced/innovative technology, R&D or data, or if the transaction involves a highly concentrated market, a target with a substantial user base or high projected growth, or meets merger control thresholds outside the EU. The rationale of the transaction and projected market developments will also be relevant factors in assessing if an Article 22 referral is likely.

Allocating risk and adapting transaction documents: Transaction agreements should be revised to take into account the risk of an Article 22 referral. In particular, agreements should allocate the risk of an Article 22 referral between buyers and sellers and include, or not include, as a condition precedent the absence of an Article 22 referral in the time period between signing and closing. If a transaction is likely to be referred, the acquirer may insist on having received from the Commission or NCAs confirmation that the transaction will not get referred under Article 22.

Strategically informing NCAs: At a national level, it might be beneficial to provide NCAs with enough information to allow a preliminary assessment of whether Article 22 referral is appropriate. Providing a sufficient level of detail should trigger the 15 working day deadline vis-à-vis the NCAs that have been provided with such information. It remains to be seen what level of cooperation will be achieved among NCAs; at this stage, it is not certain that informing one NCA would be regarded as informing all NCAs.

Reaching out to the Commission: While it is not yet clear what type of “comfort letter” the Commission is willing to provide, early communication with the Commission should help clarify whether a transaction is outside the scope of Article 22 referral, provided that sufficient information is made available to the Commission to make such assessment. This option should be particularly attractive in a competing bid scenario, or where competitors or other third parties otherwise may use the new Article 22 policy to scupper or delay a transaction.

New Enforcement Tool Against Abusive Market Conduct

New enforcement tool for the German Federal Cartel Office in the control of abusive behavior of companies with a paramount cross-market significance for competition

 

 

 

 

 

In a nutshell:

  • What’s new?
    • Introduction of the Concept of Intermediation Power: A dominant position can as of now also result from intermediation services of a company that is active in multisided markets.
    • The German competition authority now has a new tool for intervention aiming at some types of large platforms’ conduct and other companies for which the authority established a so-called “paramount cross-market significance for competition”.
  • Action items for our clients
    • Follow the Federal Cartel Office’s approach with the new tool closely – we will keep you posted.

In detail:

The 10th amendment carries the name “Act amending the Act against Restraints of Competition for a focused, proactive and digital Competition Law 4.0 and other provisions (ARC Digitization Act)” and, as the name suggests, comprises the legislature’s intent to adapt German competition regulation to the new competitive environment in digital markets, in particular with respect to the controversial behavior of “gatekeeper” companies with superior market power like Google and Amazon. Hence, a core element of the amendment is the modernization of regulations on the control of abusive practices, in particular, the introduction of a new section 19a ARC (Act against Restraints of Competition) on abusive conduct of companies with a paramount cross-market significance for competition.

For the first time, section 19a ARC enables the Federal Cartel Office to intervene at an early stage in the event of threats to competition from certain large companies by determining that a company, which is active to a considerable extent in multisided markets, is of paramount importance for competition across markets, i.e., companies whose strategic position and resources make them particularly important for competition across markets. Under specific circumstances, the Federal Cartel Office can preventively prohibit such companies from certain practices, including:

1. Prohibition of “self-preferencing”, i.e., prohibition of giving preferential treatment to the company’s own offerings over those of competitors, in particular in terms of presentation and pre-installing exclusively the company’s own offerings on devices (a situation prominently discussed in the “Google-Shopping” case of the EU Commission);

2. Prohibition of measures of the company that impede third companies in their activities in a buyer’s or seller’s market if the company’s activity is important for the access to these markets;

3. Prohibition of impeding competitors in a market in which the company may quickly expand its market position;

4. Prohibition to erect or appreciably raise barriers to market entry or otherwise hinder other companies by processing competitively sensitive data collected by the company, or to impose business conditions that permit such processing;

5. Prohibition to impede or deny interoperability with other services and data portability, and thereby hinder competition;

6. Prohibition to inadequately inform other companies about the scope, quality or success of the service provided or commissioned or to make it difficult for them to assess the value of this service in another way; and

7. Prohibition to request advantages for treating offers of another company that are not appropriate in relation to the reason for the request.

The legislature also underpins the effectiveness of the new provision by accelerating the appeal proceedings. Appeals against decisions of the Federal Cartel Office made on the basis of section 19a ARC will be decided directly by the Federal Court of Justice. Skipping the first competent instance for all other antitrust proceedings, the Düsseldorf Higher Regional Court, will result in considerable time savings in these fast-moving markets.

In addition, the legislature has specified the provisions for the traditional control of abusive practices and expanded them to include internet-specific criteria. When measuring market power, the law now also provides that access to competition-relevant data and the question of whether a platform has so-called intermediation power are to be taken into account. Such a key position in the intermediation of services can establish a dependency relevant under antitrust law.

With regard to the regulations for companies with relative or superior market power, the scope of protection is no longer limited to small and medium-sized enterprises. Another important innovation is that the Federal Cartel Office can, under certain conditions, order that data access is granted for an appropriate fee in favor of dependent companies. In addition, special intervention options are provided for the event that a platform market threatens to “tip” in the direction of a large provider (so-called “tipping” of a market).

Take-Aways

The resources of the Federal Cartel Office, which are freed up by the increase of the merger thresholds (see our blog post on New merger control thresholds in Germany), will likely be used to initiate more sector inquiries and, subsequently, will lead to more decisions under the new sections in 19a GWB.

It remains to be seen how the concept of addressing abusive conduct of companies with a paramount cross-market significance under section 19a GWB will influence the legislative process of the Digital Markets Act on the EU level (see our blog post New obligations and sanctions for digital ‘gatekeepers’: European Commission proposes Digital Market Act).

The UK’s New National Security and Investment Regime: Cutting Through the Noise – On Demand Video

The UK is introducing a new far-reaching national security regime which will impact M&A activity in Tech, Energy, Finance and other sectors. Orrick Partner Douglas Lahnborg, on 3 February 2021, hosted a webinar with panellists Niall Mackenzie (Department for Business, Energy & Industrial Strategy), Tim Riisager (Centrica), Alex van Someren (Amadeus Capital Partners) and Tom Tugendhat MP (Chairman of the Foreign Affairs Committee), who shared valuable insights for businesses and their advisors into the National Security and Investment Bill.

Watch a recording of the discussion here and listen to this experienced panel share their views on points such as what businesses should do now if they are concerned that a transaction may fall within the scope of the regime, the timing of the Bill, definition of “national security”, changes to the structuring of transactions, expectations on the newly-created Investment Security Unit and whether this is the first of a suite of legislation and policy that we will see from the government to address national security concerns in transactions involving entities or assets with links to the UK.

DECREASING HSR Premerger Notification Thresholds in 2021

Takeaways

  • The new minimum HSR threshold is DECREASING from $94 million to $92 million.
  • New thresholds apply to any transaction closing on or after March 4, 2021.
  • Failure to file may result in a fine of up to $43,792 per day of non-compliance.
  • The HSR Act casts a wide net, catching mergers and acquisitions, minority stock positions (including compensation equity and financing rounds), asset acquisitions, joint venture formations, and grants of exclusive licenses, among others.

The Federal Trade Commission has announced new HSR thresholds for 2021, which are lower than the existing thresholds. The thresholds typically increase year-over-year, but are decreasing in 2021 from $94 million to $92 million, potentially requiring HSR premerger notification filings to the U.S. antitrust agencies for smaller transactions. The new threshold will begin to apply to transactions closing on March 4, 2021. The HSR Act and Rules require that parties to certain transactions submit an HSR filing and wait up to 30 days (or more, if additional information is formally requested) before closing, which gives the government time to review the transaction for potential antitrust concerns. The HSR Act applies to a wide variety of transactions, including those outside the usual M&A context. Potentially reportable transactions include mergers and acquisitions, minority stock positions (including compensation equity and financing rounds), asset acquisitions, joint venture formations, and grants of exclusive licenses, among others.

Determining reportability: Does the transaction meet the Size of Transaction test?

The potential need for an HSR filing requires determining whether the acquiring person will hold an aggregate amount of voting securities, non-corporate interests, and/or assets valued in excess of the HSR “Size of Transaction” threshold that is in place at the time of closing. Calculating the Size of Transaction may require aggregating voting securities, non-corporate interests, and assets previously acquired, with what will be acquired in the contemplated transaction. It may also include more than the purchase price, such as earnouts and liabilities. Talk to your HSR counsel to determine what must be included in determining your Size of Transaction.

If the transaction will close before March 4, 2021, the $94 million threshold still applies; closings as of March 4, 2021 will be subject to the lower $92 million threshold.

Determining reportability: Do the parties to the transaction have to meet the Size of Person test?

Transactions that satisfy the Size of Transaction threshold may also have to satisfy the “Size of Person” thresholds to be HSR-reportable. These new thresholds are also effective for all closings on or after March 4, 2021. Talk to your HSR counsel to determine which entity’s sales and assets must be evaluated.

Filing Fee

For all HSR filings, one filing fee is required per transaction. The amount of the filing fee is based on the Size of Transaction.

Failure to File Penalty

Failing to submit an HSR filing can carry a significant financial penalty for each day of non-compliance.

Always consult with HSR counsel to determine if your transaction is HSR-reportable, especially before concluding that a filing is not required. Even if the Size of Transaction and Size of Person tests are met, the transaction may be exempt from the filing requirements.

Will (almost) every U.S. VC investment in German startups require FDI approval in the future?

The German Government is about to tighten the control of foreign direct investments (FDI) in German companies—again! The suggested changes might impede or at least delay non-EU (in reality mainly U.S.…) investments in German start-ups although such non-EU investments have in particular in the growth stage become vital for the developing German ecosystem over the last years…

 

 

 

In a nutshell:

  • What’s new?
    • German Ministry for Economics once again proposes to broaden the scope of FDI control.
    • This time, German FDI control faces a major overhaul: the latest draft covers more than 27 business areas in which an investment can trigger a mandatory notification and standstill obligation for non-EU investors.
    • Many more minority investments, including VC investments, could be subject to the proposed FDI control if an investor acquires at least 10% of the voting rights. Unlike merger control, there is no turnover threshold for the FDI regime.
  • The good
    • To be determined…
  • The ugly
    • The proposed amendment will possibly lead to significant delays for non-EU investors.
    • Investors that already hold at least 10% of the voting rights and acquire additional voting rights can also trigger such a mandatory notification and standstill obligation.
    • In the future, non-EU investors will likely face a competitive disadvantage compared to their EU competitors.
  • Action items for our clients
    • Check transactions that are currently being negotiated and determine if they can be completed before the proposed amendment becomes effective.
    • Review your plans for future acquisitions and investments to account for potential significant delays. Solid preparation will become even more critical.
    • Going forward: The Ministry has launched public consultations on the draft of the FDI amendment—keep an eye on this development! Of course, we will keep you posted.

In detail:

After the latest amendment of Foreign Trade and Payments Ordinance in October 2020, the now proposed amendment is the 4th amendment of the relevant German FDI regulation within the past 12 months. While prior amendments extended the review scope to specific business areas (e.g., companies active in the production of certain medical equipment due to the COVID pandemic), the proposed amendment specifies the requirements of the EU Screening Regulation. It will broaden the scope of German FDI control extensively, in particular with respect to critical technologies that are of (security) relevance.

Remember the good old times four amendments ago: While a year ago, the prohibition of an investment required a threat to the public order or security of the Federal Republic of Germany, it now suffices that public order or security of the Federal Republic of Germany or of another EU Member State is likely to be impaired as a result of the investment.

Investments in certain businesses in Germany that will result in the investor holding at least 10 percent of the voting rights can trigger a mandatory notification to the Ministry and a standstill obligation. This can include, among others, investments in companies that:

  • Provide cloud computing services and the infrastructures used for this purpose;
  • Develop or manufacture goods which solve specific application problems by means of artificial intelligence methods and are capable of independently optimizing their algorithm;
  • Develop or manufacture motor vehicles or unmanned aerial vehicles that have technical equipment for the control of highly automated, fully automated or autonomous driving or navigation functions, or the components essential for the control of such driving or navigation functions or software required for this purpose;
  • Develop or manufacture industrial robots, including software or technology therefor, or provides specific related IT services;
  • Develop, manufacture or refine certain types of semiconductors, optical circuits and manufacturing or processing tools for such products;
  • Develop or manufacture certain IT products or components of such products;
  • Operate, develop or manufacture certain dual-use goods;
  • Develop or manufacture goods used to produce components for industrial applications by means of additive manufacturing processes;
  • Extract, process or refine critical raw materials or their ores.

Since the Ministry launched a public consultation, interested parties have the opportunity until 26 February 2021 to provide detailed comments on the proposed amendment. In view of the technical complexity of the aspects to be regulated, the Ministry attributes particular importance to the results of this consultation. Even though this should not be regarded as an indication for the Ministry narrowing the scope, it could result in a more precise description of the relevant business areas which will facilitate a prior assessment of the notification obligations.

Good News for Clients From Germany: Increased German Merger Control Thresholds in Force

In a Nutshell

  • What’s new?
    • Significantly increased turnover thresholds for German merger control.
  • The good
    • Many transactions will no longer be subject to German merger control.
    • This will lead to a much smoother process for lots of transactions, specifically for our clients in the tech sector and start-up companies that have not generated more than 17.5 mn in Germany.
  • The ugly
    • Transactions can still be subject to German merger control even if the increased thresholds are not triggered.
    • The Federal Cartel Office can require filings from a company after having conducted a market inquiry.
    • The review period for so-called phase 2 proceedings was extended from four to five months.
    • In 2017, consideration of the transaction threshold with the requirement of the rather vague criterion “substantial domestic operations” was introduced and is still in effect.
  • Action items for our clients
    • Check transactions that are currently being negotiated or that have already been signed – they might benefit from the increased thresholds of not requiring merger clearance in Germany anymore.
    • Going forward: Have a look at the Federal Cartel Office’s approach on the “vague thresholds” and sector inquiries – we will keep you posted.

In Detail

The 10th amendment of the German Act against Restraints of Competition (ARC) does not only introduce a new enforcement tool concerning the control of abusive practices. The amendment also brings a significant increase of the turnover thresholds in merger control. This will lead to a significant reduction of merger control filing requirements – good news for transactions!

New Thresholds

Most transactions in Germany are only subject to a notification if the companies involved achieve certain minimum turnover worldwide and in Germany. With respect to the turnover threshold, from now on, transactions will only be subject to merger control if, among other things, one of the companies involved has annual sales of at least 50 million euros in Germany (instead of 25 million previously) and, in addition, another company involved has annual sales in Germany of at least 17.5 million euros (instead of five million previously). Officially, this increase is intended to ease the bureaucratic burden on companies. However, the fact that the Federal Cartel Office received around 1,200 merger notifications in 2020 and opened in-depth investigations (phase II) in only 7 cases indicates that the Federal Cartel Office intends to focus its resources more efficiently on problematic cases. This is accompanied by the extension from four to five months of the review period for in-depth investigations.

For our business clients dealing with unproblematic transactions from an antitrust perspective, this is certainly good news as there will be no delay due to a merger control filing. However, besides these mere turnover thresholds, there is another threshold that takes into account the value of the transaction and competitive potential that has been in force since 2017 and is particularly important to our tech clients. We will keep you posted if the Federal Cartel Office focuses on this threshold in the future.

Further, the Federal Cartel Office is now able to require companies in certain sectors of the economy to notify mergers even if the companies involved in the transaction do not meet turnover thresholds mentioned above. According to the newly introduced section 39a ARC, the Federal Cartel Office can request notifications from a company if the following conditions are met:

  1. The acquirer must generate a worldwide turnover of more than 500 million euros;
  2. There must be objectively verifiable indications demonstrating that future acquisitions by the acquirer may significantly impede effective competition in Germany in the specified sectors;
  3. The acquirer holds at least a 15% market share in Germany in the specified sector; and
  4. The Federal Cartel Office must have carried out a sector inquiry of the industry in question.

Once a company is subject to such a notification obligation, it is obliged to notify the Federal Cartel Office about any acquisition in the specified sector(s), provided that

  1. the target’s global turnover exceeded 2 million euros in its last fiscal year, and
  2. more than two-thirds of the target’s turnover were generated in Germany.

Sector inquiries are investigations by the Federal Cartel Office of a specific sector of the economy if certain circumstances give rise to the assumption that competition of such a specific sector may be restricted or distorted. In the course of a sector inquiry, the supply and demand structures as well as aspects of market activity which have an impact on competition are analyzed by the Federal Cartel Office. A sector inquiry is not a procedure against specific companies. However, proceedings by the Federal Cartel Office are often a follow-up to a sector inquiry if the sector inquiry raises sufficient initial suspicion of a violation of competition regulations.

Andreas Mundt, President of the Federal Cartel Office, indicated the ambivalence of the new thresholds from an enforcement point of view:

So far, we have controlled around 1,200 mergers year after year; including many cases that are not really relevant from a competition point of view. That is a considerable number, and one that is accompanied by a very heavy workload. In principle, we therefore welcome an increase in the thresholds. However, at the level now selected, one or two questionable cases are likely to disappear. With the resources freed up, we will be able to focus even better on the really critical cases.

This shows the shift in the way the Federal Cartel Office obtains information on critical cases and markets. The previous approach relied heavily on a large number of “unproblematic” merger notifications, which provided the Federal Cartel Office with the parties’ view on markets and competition.

In the future, the Federal Cartel Office will put an emphasis on gaining information through sector inquiries. This shift also results in the elimination of the obligation to inform the Federal Cartel Office about the successful closing of a transaction. Previously, such a notification had to be submitted to the Federal Cartel Office for statistical purposes.

Takeaways

From a company’s point of view, the significant increase of the thresholds is welcomed as it will relieve companies from “pro forma” notifications. This applies, in particular, to PE funds. The new thresholds refer to the last completed business year prior to closing. Thus, transactions that are currently being negotiated or have already been signed but not yet closed could benefit from these new thresholds as well.

The increased thresholds will also free resources at the Federal Cartel Office, which will likely be used to conduct more sector inquiries and, subsequently, to prepare decisions under the new sections 39a and 19a GWB. Companies that are affected by such a sector inquiry and interested third parties will have the opportunity to provide the Federal Cartel Office with their views and arguments on the competitive environment in their market(s) and may highlight potentially controversial market conduct of (rival) market participants. This might be seen as a good opportunity to shine the spotlight in the right direction.

Background

The 10th amendment became necessary due to the implementation of the ECNplus Directive. The implementation of the so-called ECNplus Directive will strengthen the effectiveness of antitrust prosecution. In conjunction with the system in place at the EU level, companies and their employees are now obliged to cooperate by clarifying these facts.

The amendment also contains various innovations in the area of fine regulations. For example, “reasonable and effective precautions taken in advance to avoid and detect infringements” (i.e., compliance measures) can be considered mitigating circumstances in the future assessment of fines. In addition, the leniency program has now been codified into law. The Federal Cartel Office will adapt its announcements in this regard. Leniency applications can of course still be submitted at any time.

New obligations and sanctions for digital ‘gatekeepers’: European Commission proposes Digital Markets Act

The debate about competition issues and unfair practices specific to online platforms and the appropriate tools to tackle them was taken a step further by the European Commission (‘Commission’), which presented two legislative proposals on 15 December 2020: The Digital Services Act (‘DSA’) and the Digital Markets Act (‘DMA’). While the former is intended to regulate online content and increase transparency and accountability, the latter is intended to ensure contestable and fair markets in the digital sector by imposing limits (and potentially sanctions) on so-called ‘gatekeepers’. This post focuses on the latter. The DMA is the confirmation that, from the Commission’s point of view, the competition law toolbox does not perfectly address the new challenges encountered in the digital sector. Designed more specifically at tackling unfair practices and closing (what is perceived by the Commission as) an enforcement gap, the DMA complements the competition law toolbox with new obligations for market players and new control and enforcement tools for the Commission.

Identifying the gatekeepers

The first potentially contentious issue concerns the determination of the subject-matter of the DMA.

Digital platforms will have to assess whether the DMA applies to them. During the press presentation, the two commissioners in charge, Margrethe Vestager, Executive Vice-President for a Europe fit for the Digital Age (and continued head of DG Competition), and Thierry Breton, Commissioner for Internal Market, refrained from naming any specific platform.

The DMA establishes a concept of ‘gatekeeper’, which refers to providers of ‘core platform services’. These services include online intermediation, search engines, social networks, video-sharing platforms, online-communication, operating systems, cloud computing, as well as related advertising.

More specifically, the proposal sets out three cumulative criteria for defining ‘gatekeepers’: the provider must (i) have a significant impact, (ii) act as an ‘important gateway for business users to reach end users’ and (iii) enjoy an ‘entrenched and durable position’ or will foreseeably do so in the near future.

The Commission will presume that these criteria are fulfilled above the following quantitative thresholds:

a) for criterion (i) above, where the provider has an annual turnover in the EEA of at least EUR 6.5 billion in the last three financial years or market capitalization or market value of at least EUR 65 billion in the last financial year and it provides a core platform service in at least three Member States; or

b) for criterion (ii) above, where, in the last financial year, the core platform service had more than 45 million monthly active EU end users and 10,000 yearly active EU business users; or

c) for criterion (iii) above, where the provider meets the two thresholds mentioned in b) for each of the last three financial years.

The gatekeeper status will result from a Commission assessment and subsequent decision, but providers will have an obligation to self-assess and report themselves to the Commission when they meet the thresholds for the presumption to apply.

The presumption is rebuttable: a provider meeting the thresholds can argue that it does not fulfil the gatekeeper criteria. The Commission can also identify a gatekeeper even when not all the thresholds are met. A list of gatekeepers will be published and maintained to take into account market developments.

Specific duties and prohibitions

Regarding behavior, the DMA contains a list of Do’s and Don’ts for gatekeepers.

A first set listed in Article 5 of the DMA applies per se and needs no further details for the gatekeepers to fully comply with and be held responsible if they do not. For the second set listed in Article 6 of the DMA, the Commission may impose specific, more precise measures on a gatekeeper.

Do’s

Don’ts

Obligations for gatekeepers
(art. 5 DMA)

  • Allow business users to offer the same products or services to end users at different prices or conditions via other platforms;
  • Allow business users to do business with end users acquired on a platform also outside that platform, and allow end users to access content via the platform even if it was acquired outside the platform;
  • Upon request by a client of advertising services, provide it with pricing and remuneration information in relation to a specific ad and for each relevant advertising service.
  • Refrain from combining personal data sourced from these core platform services with other personal data;
  • Refrain from preventing or restricting business users from raising issues with any relevant public authority relating to any practice of gatekeepers;
  • Refrain from imposing its own identification service on end users that want to access business users’ services on the gatekeeper’s platform;
  • Refrain from tying core platform services.

Obligations for gatekeepers susceptible of being further specified
(art. 6 DMA)

  • Allow end users to uninstall any preinstalled software applications (unless it is essential for the functioning of the operating system or of the device and cannot technically be offered on a standalone basis by third parties);
  • Allow use of or interaction with third party software applications or software application stores on the gatekeeper’s operating systems, and allow access to these outside the gatekeeper’s core platform services (but the gatekeeper can take proportionate measures to ensure that the integrity of its hardware or operating system is not endangered);
  • Allow business users providing ancillary services access to and interoperability with the same operating system, hardware or software features used for the gatekeeper’s ancillary services;
  • Provide advertisers and publishers, upon their request and free of charge, with access to the performance measuring tools of the gatekeeper and the information necessary for advertisers and publishers to carry out their own independent verification of the ad inventory;
  • Provide effective portability of data generated through the activity of a business user or end user;
  • Provide business users (or third parties authorised by them), with free, effective, high-quality, continuous and real-time access and use of data provided for or generated in the context of end users engaging with the products or services provided by those business users; however, for personal data, the end user must have opted in for such access, and the access must be limited to the data directly connected with the use of the relevant platform in respect of the products or services offered by the relevant business user;
  • If the gatekeeper offers an online search engine, provide any third-party providers of online search engines (upon their request) with access on FRAND terms to ranking, query, click and view data generated by end users, subject to anonymisation of personal data;
  • Apply fair and nondiscriminatory general conditions of access for business users to the gatekeeper’s software application store.
  • When the gatekeeper competes with business users, refrain from using relevant data not publicly available and generated or provided in relation to the use of the core platform services by these business users or their end users;
  • Refrain from ranking more favourably its own products and services compared to those of third parties (fair and nondiscriminatory conditions should apply);
  • Refrain from technically restricting the ability of end users to switch between and subscribe to different software applications and services to be accessed using the operating system of the gatekeeper, including as regards the choice of Internet access provider for end users.

 

Regarding acquisitions, the DMA introduces an obligation for gatekeepers to inform the Commission of any intended concentrations in the digital sector, even for transactions falling outside the scope of EU or national merger control regimes.

Enforcement powers for the Commission (EU level intervention)

The Commission will have several tools to monitor gatekeepers and sanction lack of compliance: market investigations, investigative proceedings (including requests for information, interviews, on-site inspections), interim measures in case of emergency, noncompliance decisions, and ultimately fines up to 10% of the gatekeeper’s worldwide annual turnover and periodic penalty payments up to 5% of the average daily turnover. A provider will be able to make commitments to avoid a noncompliance decision and sanctions.

Limited intervention at national level

For the sake of a uniform and coherent response to unfair practices implemented by gatekeepers within the EU, the proposed legislation takes the form of a Regulation, directly enforceable within the EU, meaning that it will apply without the need for Member States to adopt national rules. The DMA lays down harmonized rules and Member States must not impose further obligations specific to gatekeepers, be it by way of national legislation, administrative action or else. The only way for Member States to intervene is when at least three of them jointly request the Commission to open an investigation. Regarding public enforcement, no specific role is foreseen for national competition authorities.

However, private damages are still handled at national level. The DMA leaves room for business users and end-users of core platform services provided by gatekeepers to claim damages for the unfair behaviour of gatekeepers before national courts.

Not yet a reality – the legislative process ahead

The current version of the DMA is still likely to change as it will undergo the normal EU legislative process involving the European Parliament and national governments via the European Council. According to the Commission, the search for a broad political consensus was already part of the preparatory phase, so that the final legislative act is anticipated to be adopted rather rapidly, in about one and a half years. Add the proposed six-month delay between entry into force and application, and the DMA could apply beginning of 2023. Yet, the real pressure against the proposal will probably come from providers likely to be identified as gatekeepers and that had already made their objections known during the public consultation launched by the European Commission prior to the drafting of the DMA.

 

SEP licensing in supply chains: ECJ gets opportunity for a major trend-setting decision

Patent License agreement on a table Intellectual Ventures Wins Summary Judgment to Defeat Capital One’s Antitrust Counterclaims

In a decision of November 26, 2020 in a patent infringement case of Nokia Technologies Oy against Daimler AG, the Düsseldorf Regional Court (file number 4c O 17/19) referred several questions to the European Court of Justice (ECJ) regarding the licensing of standard essential patents (SEPs) within multi-level supply chains. The Düsseldorf Regional Court suspended the infringement action until the decision of the ECJ. These questions referred to the ECJ address whether SEP owners are obligated to make licenses available to upstream component suppliers and the implications for the failure to do so, which are some of the biggest unresolved disputes involving SEPs. The questions also seek clarification on some of the “safe harbour” requirements for seeking injunctions set forth in the ECJ’s decision in the Huawei./. ZTE case (judgment of July 16,2015, C170/13).

In the lawsuit, Nokia is seeking an injunction against Daimler for an infringement of the German part of its European patent EP 2 087 629 B1. The patent concerns a method for sending data in a telecommunications system, whereby the patent is essential for the LTE standard (4G). LTE-capable modules from various suppliers of automotive parts make use of this standard. These modules are installed in cars of the automobile manufacturer Daimler and enable mobile radio-based services such as music or data streaming and/or over-the-air updates of specific software in cars.

In September 2014, Nokia’s predecessor in title indicated that it considered its patent essential to the LTE standard and issued a statement committing to grant licenses to third parties on terms that are fair, reasonable and non-discriminatory (FRAND). Both Daimler and many of its suppliers have so far used the patent without paying royalties.

Nokia argues that, as the owner of an SEP, it is free to decide at which stage of a complex production and supply chain it grants licenses on FRAND terms.

In contrast, Daimler and its upstream component suppliers argue that, based on the rules of the EU internal market and the FRAND declaration of September 2014, Nokia, as the owner of the SEP, must offer every license seeker, who is willing to obtain a license for the SEP, an individual unlimited license for all patent-relevant types of use of the SEP. Therefore, priority should be given to the license-seeking suppliers, which would correspond to the standard procedure in the automotive industry.

In the referral decision, the Düsseldorf Regional Court assumed that Nokia has a claim for injunction against Daimler due to a patent infringement. However, the court raises the question whether Nokia’s assertion of its injunctive relief against Daimler can be regarded as an abuse of its undisputed dominant position in the licensing market. The decisive question would be whether and, if so, under which circumstances the owner of an SEP abuses his dominant position if he files an action for injunction on the grounds of a patent infringement against the seller of an end product without first having complied with the licensing request of the suppliers that use the SEP as well.

Specific questions referred to the ECJ

  1. May a company, that is active on a downstream economic level, raise the objection of an abuse of a dominant position within the meaning of Art. 102 TFEU against an action for injunction due to the infringement of an SEP, if the standard (or a part of the standard) is already implemented in an intermediate product purchased by the infringing party whose supplier are willing to obtain a license and the patent owner refuses to grant an unlimited license for all patent-relevant types of use under FRAND conditions for products implementing the standard?
  2. Does the prohibition of an abuse of a dominant position require that the supplier be granted its own unlimited license for all types of use on FRAND terms for products implementing the standard in the sense that the final seller (and possibly the upstream buyers) in turn no longer need a separate license from the SEP owner in order to avoid the infringement of the patent through the intended use of the relevant parts of the suppliers?
  3. If the question 1) is answered in the negative: Does Article 102 TFEU impose specific qualitative, quantitative and/or other requirements on the criteria according to which the owner of an SEP decides against which potential patent infringers at different levels of the same production and exploitation chain he takes action for injunction?
  4. Notwithstanding of the, fact that the duties of conduct to be performed by an SEP owner and an SEP user (notification of infringement, licensing request, FRAND license offer; license offer to the supplier to be licensed with priority) must be fulfilled prior to a court proceeding, is it possible to make up for duties of conduct that were missed prior to a court proceeding in the course of a court proceeding?
  5. Can a considerable licensing request by the patent user only be assumed if a comprehensive assessment of all accompanying circumstances clearly and unambiguously shows the intention and willingness of the SEP user to conclude a license agreement with the SEP owner on FRAND conditions, whatever these (in the absence of a license offer not foreseeable) FRAND conditions may look like?

Timing and Implications

It likely will take between one to two years until the questions are fully briefed and the ECJ rules on the questions.

Notwithstanding the delay, these questions will provide the ECJ with an important opportunity to make a decision that will have a major impact on supply chains around the globe. They also will reduce the likelihood, pending the ECJ’s decision, that courts in Europe will issue injunctions against automotive manufacturers for cellular SEPs when upstream telematic component manufacturers are willing to enter FRAND licenses. Finally, they likely will influence ongoing efforts by the European Commission to provide policy guidance to improve transparency and predictability in SEP licensing.

The answers of the ECJ will give guidance and can be expected to have a tremendous effect not only in the automotive industry, but for any industry that relies on SEPs. The further proceedings will, thus, need to be followed closely.

Foreign subsidies: The European Commission goes extraterritorial

The EU State Aid regime has long protected the EU internal market from anti-competitive subsidies granted by EU Member States. On 17 June 2020, the European Commission published a White Paper that proposes a new set of tools designed to address distortive effects in the internal market caused by subsidies granted by states outside the EU.

The White Paper outlines three complementary tools, or “modules”, intended to tackle the distortive competitive effects arising from foreign subsidies. These modules would be implemented by “supervisory authorities”, possibly at EU-level (most likely by the Commission itself) and/or at national level by an authority chosen by the Member State. For each of the three modules, the existence of a foreign subsidy with an actual or potential disruptive effect in the EU would be assessed in a “preliminary review”, potentially followed by an “in-depth investigation”. Undertakings under investigation could face “redressive measures” including the prohibition or even unwinding of certain transactions, or else make commitments to avoid prohibition. Failure to comply with procedural obligations would be subject to fines and periodic penalty payments.

Module 1 – General instrument to capture distortive effects of foreign subsidies

This largely mirrors the existing EU State Aid regime that applies to states in the European Economic Area (EEA). It proposes a general instrument that could capture all distortive effects of foreign subsidies exceeding a certain threshold, currently proposed at EUR 200,000 over three consecutive years. The Commission lists several categories of distortive subsidies, i.e. foreign subsidies that would distort the EU’s internal market: export financing, debt relief to the benefit of ailing undertakings, unlimited government guarantees, individual tax reliefs and foreign subsidies directly facilitating an acquisition.

For all other forms of subsidies, a more detailed assessment would be necessary, based on indicators such as the size of the subsidy, the size of the beneficiary and the utilisation of production capacity, the market situation, specific behaviour such as outbidding in acquisitions or distortive bidding in procurement procedures, and the level of activity of the beneficiary in the EU. If a distortive effect is established, it would be weighed up against any positive impact (the “EU interest test”), taking into account EU objectives such as job creation, climate neutrality goals, digital transformation, security, public order, public safety and resilience. Redressive measures could range from structural remedies and behavioural measures, to redressive payments to the EU, or the Member States, and could be subject to a limitation period of ten years.

Module 2 – Control of acquisitions facilitated by foreign subsidies

This proposes to tackle subsidised acquisitions of EU businesses by introducing an ex ante notification system, separate from and complementary to EU merger control and foreign direct investment screening. This module would investigate direct facilitation of acquisitions by foreign subsidies, as well as indirect de facto facilitation when foreign subsidies increase the acquirer’s financial strength. The regime would be subject to certain quantitative and qualitative thresholds and cover not only the acquisition of control over EU targets, but also the acquisition of significant – but possibly non-controlling – minority rights or shareholdings. The time period for the benefit of foreign subsidies would be limited, e.g. from three years prior to the notification until one year after closing. To avoid a prohibition of the planned transaction the acquirer could offer commitments, which would likely have to include structural remedies.

The proposals also envisage an ex officio review process to scrutinise acquisitions that should have been notified by the acquirer but were not, including after they have completed. The module includes the right to order the unwinding of completed transactions.

Module 3 – Control of unfair advantages in public procurement due to foreign subsidies

This complements the public procurement regime by introducing an additional notification obligation when submitting a bid, where the bidding party has received a “financial contribution” in the last three years. This module would address direct distortion of a procurement procedure by operation-specific foreign subsidies, as well as indirect de facto distortion by increasing the financial strength of the operator. The Commission aims to avoid situations where artificially low public procurement bids are facilitated by foreign subsidies. If a bidder is found to benefit from foreign subsidies, it could be excluded from public procurement in the EU.

The White Paper also identifies a risk that foreign subsidies create unfairness in the context of EU funding. The proposals are less developed, but the solution could be similar to Module 3 where EU funding is distributed through public tenders.

Hurdles and next steps

A first obstacle might be resistance by national governments that will scrutinise the proposal – the outcome of this process will influence the distribution of powers between the Commission and the Member States. For the general instrument (Module 1) as well as the public procurement instrument (Module 3), it is proposed that the Commission and the relevant national authorities would have concurrent authority for the initial stages. However, the Commission proposes to be exclusively competent to apply the EU interest test. Similar to its “one-stop shop” role in EU merger control, the Commission envisages exclusive responsibility for the enforcement of the ex ante control of acquisitions facilitated by foreign subsidies (Module 2).

In any event, enforcement outside the EEA will largely depend on third countries’ willingness to co-operate, which is not a given. State aid is highly political – foreign countries are unlikely to give the EU access to detailed information, unless the benefit of achieving EU approval outweighs the intrusion in the foreign state’s autonomy and political process. While the White Paper proposes an obligation to provide information, as well as powers to impose a fine or to order parties to unwind a transaction, the lack of effective enforcement outside the EEA could jeopardize the new regime(s). Even providing the supervisory authorities with the possibility to make decisions based on the facts available would not fully address this fundamental and intrinsic weakness.

Conversely, foreign companies benefiting from subsidies may lack information that would enable them to argue either the absence of a distortive effect, or the benefits outweighing such distortive effects. These dynamics could cause a stalemate between the EU and foreign countries, with increased trade barriers as a result.

The Commission acknowledges that there might be overlaps with existing legal tools, including international law such as the WTO Agreement on Subsidies and Countervailing Measures (for goods), as well as bilateral free trade agreements with third states, which may contain relevant dispute settlement or consultation provisions. In case of overlapping actions, the White Paper merely suggests the ability to suspend the proceedings under the proposed new instruments and to conditionally resume those if the distortion persists.

A public consultation is open for stakeholders to comment on the White Paper until 23 September 2020, with proposed legislation scheduled for 2021. Legislation is unlikely to come into force before 2022.

State Attorneys General Ramping up Merger Enforcement

AttorneyGeneralDefinition

Last month, Colorado Governor Jared Polis signed a law repealing a provision of the Colorado Antitrust Act that prohibited challenging a merger under state law where the federal antitrust agencies did not also challenge the merger. This action is another sign that state Attorneys General are prepared to more aggressively enforce state antitrust laws, increasing the likelihood of divergent federal and state merger enforcement priorities and outcomes.

There are two complementary merger enforcement regimes. The federal regime, enforced by the Department of Justice (DOJ) and Federal Trade Commission (FTC), and the state regime which the state Attorneys General enforce. The Hart-Scott-Rodino Act’s pre-merger notification and waiting period requirements apply to the federal merger enforcement regime but do not apply to a state merger challenge. Generally, states may investigate a merger at any time, even after it has been consummated.

Historically, federal and state antitrust authorities have taken a cooperative approach to merger enforcement, working together to investigate and litigate proposed mergers. Playing more of a supporting role, the states typically deferred to the federal agencies’ enforcement decisions. For example, the DOJ and various states jointly investigated and successfully litigated the Anthem/Cigna merger. More recently, however, federal and state merger enforcement has diverged, most notably when several states filed an action challenging the T-Mobile/Sprint merger before the DOJ had completed its investigation. Anecdotally, line attorneys in state antitrust units have reported rising tensions with DOJ.

This recent divergence has been driven in part by a perception among many state AGs that DOJ and FTC have been under-enforcing federal antitrust law, particularly in the high-tech sector. Colorado and other states that have a record of more aggressive antitrust enforcement include New York, California, Texas and Washington. They and other states may be more willing to fill the void when they believe federal agencies have failed to act.

Given the increasing independence and assertiveness of state Attorneys General, merging parties cannot ignore their concerns. The strategic and practical considerations of state antitrust review should be on every checklist for a merger or major acquisition.

The European Antitrust Enforcers’ response to the Covid-19 outbreak: Antitrust rules will bend, but will not break

SupplyDemandScales

In a welcomed attempt to align their approaches, the antitrust enforcers of the European Competition Network (ECN)1 have published a brief joint statement on the application of competition law during the Covid-19 crisis.

If one may regret that its content remains too high-level, it is an important step, which comes just shortly after the European Commission adopted a specific temporary State Aid framework in order to offer Member States the flexibility required in this exceptional context to support businesses impacted by the critical disruptions caused by the Covid-19 outbreak (commented here).

In addition to flexible public support measures, businesses need more clarity as to whether they can similarly benefit from a flexible enforcement of antitrust rules. At a time where businesses are put under considerable pressure, no one seems to question the fact that increased cooperation between them may be necessary, not to say indispensable for some economic sectors to continue to address basic consumers’ needs; likewise, there are reasons to believe that the traditional special responsibility of dominant firms may be harder to assume in the current circumstances.

Here and there, voices have rapidly been raised about the need to explicitly relax competition laws or their enforcement to allow companies to continue to meet European consumers’ vital needs while not dreading subsequent antitrust investigations (see for instance: the public statement issued by EuroCommerce, a trade association of European retail and wholesale companies, advocating for a waiver of normal competition rules to allow retailers to “share information on supplies and arrang[e] deliveries to the homes of people who cannot get out”).

At the same time, faced with the risk of a generalization of inflated prices for products or services in high demand due to the pandemic, antitrust enforcers naturally feel the need to be extra-vigilant and ensure that adequate safeguards remain in place, despite their own challenges of having (at least for some of them) their personnel working from home. It explains why some enforcers (such as the German Federal Cartel Office) have been vocal about the fact that existing competition law rules already provided sufficient flexibility and that they would continue to crack down on those who would unduly take advantage of the crisis to adopt anticompetitive conducts.

The guidance offered in the ECN’s joint statement strikes a balance between encouraging good-faith solutions and preventing abuses. It combines different approaches that have previously been supported by some European antitrust enforcers. But let’s make no mistake: the underlying message is clear: antitrust rules may bend but will not break, meaning that companies shall not lower their guard and ensure that they take adequate steps to mitigate the antitrust risks.

Flexible antitrust to ensure continued supply

In its joint statement, after acknowledging that “this extraordinary situation may trigger the need for companies to cooperate in order to ensure the supply and fair distribution of scarce products to all consumers”, the ECN assures that it “will not actively intervene against necessary and temporary measures put in place in order to avoid a shortage of supply”.

The ECN statement yet continues by stressing that “such measures” are likely to already comply with existing competition law, since they would either not be caught by the antitrust prohibitions or would fall under the existing exemptions. In other words, the message is that businesses will benefit from flexibility where this is justified by the Covid-19 pandemic, mostly because this flexibility is already an inherent part of the existing antitrust regime.

While nothing is said about what would be accepted as “necessary measures” or what is meant by “temporary” measures, some illustrations may already be found in decisions concerning topical sectors taken by some national enforcers. For instance, the Norwegian antitrust enforcer recently approved a three-month cooperation between Norwegian airlines in order to allow them to continue to ensure critical activities for citizens. Likewise, the German Cartel Office seems to have taken a softened approach to cooperation in the retail sector to the extent it is necessary to ensure continuous supply.

If useful, these precedents, however, leave numerous questions unaddressed.

To help companies navigate these issues, the members of the ECN seem willing to provide “informal guidance” to companies, which is a good thing in theory but clearly does not provide the same level of comfort as proper formal decisions. One may also have some doubts as to the enforcers’ ability to respond adequately in a timely manner to consultations considering that many of them have already made it clear that stakeholders needed to be prepared to face significant delays in the handling of pending investigations and merger control reviews.

It is hence to be hoped for that the members of the ECN will take inspiration from the UK CMA and will shortly, individually or jointly, follow-up with more detailed guidance.

Flexible antitrust to avoid excessive price increases

To tackle the other main issue, the risk of exaggerated inflation, the ECN joint statement contains a warning to companies that prices of “products considered essential to protect the health of consumers in the current situation (e.g., face masks and sanitising gel)” should “remain available at competitive prices” and that antitrust enforcement will continue to fight against antitrust infringements such as cartels or abuses of dominance. To the same end, the ECN joint statement also explicitly recalls that manufacturers can continue to use their right to set maximum prices.

This position is in line with the messages sent previously by several European antitrust enforcers. For instance, the Latvian Competition Council warned against price cartels resulting in overpayment for consumers. The Greek Competition Authority has communicated that it would indulge vertical agreements tending to maintain prices at a low level (maximum or recommended prices), which otherwise could be deemed anticompetitive in certain circumstances; conversely, resale price management (minimum prices) would still be examined and prosecuted.

However, one may wonder whether antitrust (flexible or not) is the appropriate tool to tackle excessive pricing problems in the current context. Why? Because, it may not offer a timely remedy (as a prior investigation will still be needed); because, the concept of exploitative abuse to address excessive prices traditionally raises several complex legal questions, and even more if we are to speak about temporary dominance resulting from the current context.

One may therefore not exclude that, in the most critical situations, European Governments will prefer ex-ante regulation over ex-post regulation, like in France where the price of hydroalcoholic gel was eventually fixed by decree.

 

1 ECN is the network for coordination between the national competition authorities (NCAs) within the EU/EEA, the European Commission (DG Comp) and the EFTA Surveillance Authority.

The implications of Brexit on the competition law landscape: Key takeaways from the CMA’s ‘Guidance on the functions of the CMA under the Withdrawal Agreement’

The UK will no longer be a Member State of the European Union (the “EU”) as of 11 p.m. on 31 January 2020 (“Exit Day”). A ‘transition period’ will run from Exit Day until 11 p.m. on 31 December 2020 (the “Transition Period”).

The Competition and Markets Authority (“CMA”) has published a guidance document explaining how Brexit, or “EU Exit,” will affect its ‘powers and processes’ for competition law enforcement (antitrust, including cartels), merger control and consumer protection law enforcement during, towards the end of and after the Transition Period (the “Guidance”). The Guidance also explains how ‘live’ mergers and ‘live’ antitrust cases being reviewed by the European Commission (the “Commission”) or the CMA during and at the end of the Transition Period will be treated.

In this post, we provide an overview of the key takeaways in relation to merger control and antitrust.

Merger control

The implications of EU Exit on merger control need to be considered during three different periods: (i) during the Transition Period; (ii) towards the end of the Transition Period; and (iii) after the end of the Transition Period.

  • During the Transition Period: The ‘one-stop shop’ principle will continue to apply. When considering whether the merger control thresholds under the EU Merger Regulation (“EUMR”) are met, the turnover generated by an undertaking in the UK will still need to be included. The CMA will not open an investigation into a transaction unless jurisdiction has been transferred to it under the EUMR’s referral mechanisms. The UK courts and the Competition Appeal Tribunal will not have jurisdiction to review decisions of the Commission or the UK-related aspects of these decisions.
  • Towards the end of the Transition Period: The Commission will retain jurisdiction over transactions that have been formally notified to it before the end of the Transition Period or if it has accepted referral requests under the EUMR (or the deadline for Member States to disagree to the request has expired (Article 4(5) of the EUMR)). If the Commission’s clearance decision in a particular case is subject to commitments, the Commission will continue to be responsible for monitoring and enforcing all aspects of these commitments, including any aspects relating to the UK, irrespective of whether the commitments have been agreed before the end of the Transition Period. However, the Commission and the CMA can agree to transfer responsibility for the monitoring and enforcement of the UK aspects of any commitments to the CMA.
  • Following the end of Transition Period: The ‘one-stop shop’ principle will no longer apply. The turnover generated in the UK will no longer be relevant for determining whether the jurisdictional thresholds under the EUMR are met. Parallel investigations (i.e. investigations by the Commission and the CMA) can take place with regards to transactions that meet the thresholds under the EUMR and the Enterprise Act 2002. The Commission will continue to be able to investigate the effects in the UK of transactions over which it had already exercised jurisdiction (i.e. because the transaction had been notified during the Transition Period or referral requests were accepted).

Antitrust

As with merger control, the implications for antitrust enforcement should be considered during three different periods: (i) during the Transition Period; (ii) towards the end of the Transition Period; and (iii) after the end of the Transition Period.

  • During the Transition Period: Articles 101 and 102 of the Treaty on the Functioning of the European Union (“TFEU”) will have full force and effect in the UK in addition to the domestic Chapter I and Chapter II prohibitions. Regulation 1/2003, the EU block exemption Regulations and EU guidance will also continue to be applicable. The Commission will continue to have the power to enforce and investigate suspected infringements of Articles 101 and 102 TFEU in relation to the UK. If the Commission has initiated an investigation into a suspected breach of either Article 101 or Article 102, the CMA and concurrent (sector) regulators in the UK will not be able to launch a parallel investigation. In the event that commitments have been accepted by the Commission before or during the Transition Period, the Commission will continue to have the responsibility for monitoring and enforcement of the UK-related aspects of these commitments. Infringements of EU law are relevant to the disqualification of directors for competition law infringements. This will continue to be the case during the Transition Period.
  • Towards the end of the Transition Period: The Commission will retain jurisdiction over cases in relation to which it has formally initiated proceedings before the end of the Transition Period. However, the CMA and the concurrent regulators may be able to obtain jurisdiction over such cases. For instance, if the agreement or conduct under investigation affects trade within the UK and are ongoing at the end of the Transition Period, the CMA or concurrent regulators may investigate facts post-dating the Transition Period. Further guidance will be issued concerning the applicable procedure. If the CMA and the concurrent regulators are investigating conduct that may affect trade between EU Member States and have not issued a decision before the end of the Transition Period and the case is ongoing, Articles 101 and 102 TFEU will no longer be applied.
  • Following the end of Transition Period: After the end of the Transition Period, the CMA and the concurrent regulators will only investigate suspected infringements of the Chapter I and Chapter II prohibitions. The Commission will continue to have responsibility for monitoring and enforcing the UK aspects of commitments given or remedies imposed; however, there is an option under the Withdrawal Agreement for this responsibility to be transferred to the CMA and concurrent regulators by ‘mutual agreement.’ Further guidance will be issued concerning the applicable procedure. It is expected that company director disqualification orders will also concern conduct found to have infringed Articles 101 and 102 TFEU during the Transition Period. The EU block exemption Regulations are ‘retained exemptions.’ As such, after the Transition Period, exemptions will operate as exemptions from domestic prohibitions. The Secretary of State, acting in consultation with the CMA, will have the power to vary or revoke the application of the retained exemptions. Businesses entering into agreements after the end of the Transition Period will be able to benefit from the retained exemptions provided they meet the relevant criteria.

The CMA considers the Guidance to be a ‘live’ document subject to change “in light of further political and legal developments.”

The Guidance is available here: https://www.gov.uk/government/publications/uk-exit-from-the-eu-guidance-on-the-functions-of-the-cma-under-the-withdrawal-agreement

M&A HSR Premerger Notification Thresholds Increase in 2020

Chinese: 美国提高2020年HSR法案并购前申报门槛

Takeaways

  • The new minimum HSR threshold is $94 million and applies to transactions closing on or after February 27, 2020.
  • The current threshold of $90 million is in effect for all transactions that will close through February 26, 2020.
  • Failure to file may result in a fine of up to $43,280 per day of non-compliance.
  • The HSR Act casts a wide net, catching mergers and acquisitions, minority stock positions (including compensation equity and financing rounds), asset acquisitions, joint venture formations, and grants of exclusive licenses, among others.

The Federal Trade Commission has announced new HSR thresholds for 2020. Transactions closing on or after February 27, 2020 that are valued in excess of $94 million potentially require an HSR premerger notification filing to the U.S. antitrust agencies. The HSR Act and Rules require that parties to certain transactions submit an HSR filing and wait up to 30 days (or more, if additional information is formally requested) before closing, which gives the government time to review the transaction for potential antitrust concerns. The HSR Act applies to a wide variety of transactions, including those outside the usual M&A context. Potentially reportable transactions include mergers and acquisitions, minority stock positions (including compensation equity and financing rounds), asset acquisitions, joint venture formations, and grants of exclusive licenses, among others.

Determining reportability: Does the transaction meet the Size of Transaction test?

The potential need for an HSR filing requires determining whether the acquiring person will hold an aggregate amount of voting securities, non-corporate interests, and/or assets valued in excess of the HSR “Size of Transaction” threshold that is in place at the time of closing. Calculating the Size of Transaction may require aggregating voting securities, non-corporate interests, and assets previously acquired, with what will be acquired in the contemplated transaction. It may also include more than the purchase price, such as earnouts and liabilities. Talk to your HSR counsel to determine what must be included in determining your Size of Transaction.

If the transaction will close before February 27, 2020, the $90 million threshold still applies; closings as of February 27, 2020 will be subject to the new $94 million threshold.

Determining reportability: Do the parties to the transaction have to meet the Size of Person test?

Transactions that satisfy the Size of Transaction threshold may also have to satisfy the “Size of Person” thresholds to be HSR-reportable. These new thresholds are also effective for all closings on or after February 27, 2020. Talk to your HSR counsel to determine which entity’s sales and assets must be evaluated.

Filing Fee

For all HSR filings, one filing fee is required per transaction. The amount of the filing fee is based on the Size of Transaction.

Failure to File Penalty

Failing to submit an HSR filing can carry a significant financial penalty for each day of non-compliance.

Always consult with HSR counsel to determine if your transaction is HSR-reportable, especially before concluding that a filing is not required. Even if the Size of Transaction and Size of Person tests are met, the transaction may be exempt from the filing requirements.

No HSR Filing Means No Antitrust Issues? Think Again!

My transaction does not require an HSR filing. That means we don’t have to worry about potential antitrust issues, right? WRONG.

The HSR Act requires that parties to certain transactions submit a premerger notification filing to the Department of Justice Antitrust Division (DOJ) and Federal Trade Commission (FTC), and then observe a waiting period before closing. Any transaction valued in excess of the HSR threshold – currently $90 million – may require an HSR filing and expiration of the HSR waiting period as conditions to closing. An HSR filing may not be required where the transaction does not meet the minimum jurisdictional thresholds or an exemption to filing is available. Parties, however, should not equate “no HSR filing” with “no antitrust issues.”

The FTC just ordered the unwinding of a 2017 merger that was not HSR-reportable. German company Otto Bock HealthCare acquired private equity-backed Freedom Innovations; both companies supplied prosthetics and were the #1 and #3 manufacturers of microprocessor-equipped prosthetic knees. Otto Bock and Freedom confused “no HSR filing” with “no antitrust issues,” stating in the press release that “Anti-trust matters have already been clarified and a ‘simultaneous signing and closing’ was carried out.”

DOJ and FTC History of Investigating HSR Non-Reportable Deals – Even Very Small Deals

The DOJ and FTC have a history of launching investigations into transactions that did not require an HSR filing – including very small deals. Two examples are the DOJ’s post-consummation challenge of George’s $3 million acquisition of a chicken plant from Tyson Foods Inc., and the FTC’s challenge of American Renal’s $4.4 million acquisition of Fresenius dialysis clinics.

Even HSR-Cleared Deals Can Be Challenged Later

Parties also should not confuse HSR “clearance” with substantive “antitrust clearance.” While rarely used, the DOJ and FTC have the ability to later challenge transactions that were HSR-reportable and cleared. Recently, DOJ allowed the HSR waiting period to expire for Parker-Hannifin’s $4.3 billion acquisition of CLARCOR, Inc., and then challenged the consummated merger nine months later.

When the Federal Antitrust Agencies Pass, Others May Step Up to Investigate

The DOJ and FTC are not the only antitrust enforcers who can investigate a deal, and State Attorneys General (AGs) are becoming more active in merger investigations. For example, when the FTC decided against challenging Valero’s proposed acquisition of two Plains All American petroleum terminals in California, the California AG filed suit to block the deal.

All Deals Can Raise Concerns about Sharing Competitively Sensitive Information

Even after Valero abandoned the Plains All American terminal acquisition, the FTC continued to investigate if Plains improperly shared competitively sensitive information with prospective bidders, which could have been used to harm competition during or after the sale process.

Takeaways

Regardless of whether an HSR filing will be required:

  • Parties should always consider the antitrust risk of a transaction, no matter how big or small the deal or competitive overlap. Antitrust concerns can emerge from potential competition, too, in which case there may be no directly competing sales at the time the deal documents are executed. Before or after closing, filing HSR or not, the deal could face questions or a challenge from the federal antitrust agencies, State AGs or others.
  • Parties should always practice good document hygiene, bearing in mind that anything could be produced to the government or come to their attention. For example, Freedom’s own press release flagged that the merger combined the “number one and the number three” players.
  • Parties should implement practices to safeguard any competitively sensitive information that is shared through due diligence or otherwise during the bid/sale process. They also should ensure they do not violate anti-gun jumping laws that prohibit a buyer from taking control of a target or its operations pre-close.

 

U.S. v. Sabre: Putting the Innovation Theory of Harm to the Test?

In its recent complaint challenging the $360 million acquisition of Farelogix by Sabre, the Department of Justice (“DOJ”) appears to have left the door open to offering proof that harm to innovation in the market for airline bookings is a separate and independent basis to block the merger. When the case goes to trial in January 2020, watch to see if DOJ uses this case to provide a roadmap for the evidence and analytical tools to analyze innovation effects in a technology merger.

The Sabre/Farelogix Lawsuit

The DOJ complaint alleges that Sabre’s acquisition of Farelogix is a “dominant firm’s attempt to eliminate a disruptive competitor after years of trying to stamp it out.” Sabre operates the largest global distribution system (“GDS”) in the United States. A GDS is a computerized system that allows brick-and-mortar and online travel agents to search for fares and schedules and book flights across multiple airlines. The complaint alleges Farelogix is a disruptive competitor that has eroded Sabre’s dominance in airline bookings. Farelogix offers an innovative booking service that allows airlines to bypass GDSs and connect directly to travel agencies. Farelogix has also pioneered the next-generation technology standard, called “New Distribution Capability” (“NDC”). NDC offers more advanced communications between airlines and travel agents and gives airlines greater flexibility to offer travelers ancillary products and services, such as priority boarding and Wi-Fi.

The complaint alleges that over the years Sabre has used its dominant position to engage in a broad range of anticompetitive conduct to delay adoption of NDC and to impede Farelogix’s ability to compete . Despite Sabre’s efforts, Farelogix has loosened Sabre’s grip on the market for airline bookings which has given the airlines leverage to negotiate lower fees from the GDSs. In addition, competition from Farelogix has pushed Sabre to update its own outdated airline booking technology. In spite of Sabre’s efforts to hobble Farelogix, demand for NDC has steadily grown and Sabre has recognized Farelogix as an existential threat to its business model. According to DOJ, “[i]nstead of innovating to compete with Farelogix, Sabre has resorted to eliminating the competitive threat by acquiring Farelogix” and the “acquisition would wipe out this competition and innovation, harming airlines and American travelers.”

In a press statement released the same day the complaint was filed, Sabre wrote that the “DOJ’s claims lack a basis in reality and reflect a fundamental misunderstanding” of the airline booking market. In its answer, Sabre argues the transaction is procompetitive because it will accelerate the delivery of new technology to the airline booking market by combining Farelogix’s NDC technology and retailing capabilities with Sabre’s travel agent network and global footprint. Sabre challenges DOJ’s conclusion that Farelogix is a particularly disruptive and innovative competitor. Sabre contends Farelogix is “not disruptive today and will not become so in the future.” Farelogix’s booking service earned only $7 million in revenues in 2018 and has close to a zero percent share of the airline booking markets alleged in the complaint. Sabre further contends Farelogix is not poised to disrupt the market because there is nothing unique about Farelogix’s technology. NDC is an open standard that is freely available and at least 39 other firms are certified to provide NDC solutions.

Harm to Innovation

Traditional merger analysis has focused on price competition—the merged firm’s ability to raise price or reduce output. In recent decades, nonprice competition—the merged firm’s ability to reduce quality and innovation—has become an important dimension of merger analysis. The emphasis on innovation is nothing new. Section 6.4 of the DOJ/FTC 2010 Horizontal Merger Guidelines makes clear that competition may be harmed if a merger reduces the merged firm’s incentives to innovate:

The Agencies may consider whether a merger is likely to diminish innovation competition by encouraging the merged firm to curtail its innovative efforts below the level that would prevail in the absence of the merger.

Alleging harm to innovation is a well-accepted theory and many DOJ and the Federal Trade Commission (“FTC”) complaints have alleged technology mergers will reduce incentives to innovate. For example, in U.S. v. Bazaarvoice, a litigated case involving the consummated merger of the two leading ratings and review platforms, the DOJ introduced substantial evidence that competition between the parties was the primary driver of innovation in the market. In another recent DOJ case, the proposed acquisition of Tokyo Electron by Applied Materials, the parties abandoned the merger when they were unable to address the DOJ’s innovation concerns. Similarly, the FTC has challenged mergers to protect innovation in high-tech markets. For example, in Nielsen/Arbitron, the FTC required divestitures to protect future competition in the market for cross-platform audience-measurement services and in NXP/Freescale the FTC required divestitures to protect future competition in the semiconductor industry. FTC Chairman Maureen Ohlhausen explained the importance of innovation in the review of high-tech mergers:

Higher prices are obviously a fundamental concern in reviewing mergers of close competitors. The loss of competition to innovate and to develop better, faster, more efficient products, however can be just as concerning – particularly in the technology area, where essential competition often is not on price, but rather on product features.

Assessing Harm to Innovation

Most of these enforcement actions were resolved by consent where the agencies did not go into detail regarding the evidence considered and the analytic tools used to assess harm to innovation. In Bazaarvoice, the one litigated case, DOJ alleged harm to innovation along with effects on price and quality. DOJ did not ask, and the court did not find, that harm to innovation was a separate and independent basis to find the merger substantially reduced competition in the ratings and review market.

The Sabre complaint alleges two separate and distinct theories of competitive harm: (i) higher prices due to the elimination of head-to-head competition between Sabre and Farelogix, and (ii) reduced incentives to invest and innovate next-generation technology. The structure of the Sabre complaint and the extensive references to innovation competition suggests that DOJ may ask the court to make a separate finding that the merger should be blocked based on an innovation theory of harm.

The DOJ’s focus on innovation effects is likely a response to criticism that the agencies have placed excessive focus on price effects and failed to intervene when dominant firms acquire smaller, disruptive competitors. DOJ may seek to use the Sabre case to put harm to innovation on equal footing with price effects. Discovering whether DOJ intends to allege harm to innovation as a separate and independent basis to block the merger will have to wait until DOJ files its pretrial brief and presents expert and other testimony at trial. But if this is DOJ’s intention, the trial may very well answer some open questions about how the agencies approach the elimination of small, innovative competitors. For example, will DOJ articulate a clear standard for blocking a dominant firm’s acquisition of a smaller, innovative competitor? Even if Farelogix has been an aggressive and innovative competitor, will DOJ be able to prove Farelogix is uniquely positioned to push the airline booking industry forward? Expect Sabre to offer evidence that the GDSs have been a source of innovation and that there are many other similarly situated competitors that can match Farelogix’s NDC technology. Will DOJ be able to prove how Farelogix would have developed without the merger? Expect Sabre to argue that Farelogix is a weak competitor that does not have the resources to implement NDC technology at scale. What weight will DOJ give to any integration efficiencies of combining Sabre’s and Farelogix’s respective technologies? Expect Sabre to argue that the merger will lead to better products that will enhance, rather than stifle, innovation. Finally, what, if any, economic tools will DOJ use to measure any potential reduction in innovation in the airline booking market?