Saira Henry is a Senior Associate in the Firm's Antitrust & Competition group in London.
Saira advises on EU and UK competition law matters, including merger control and anti-competitive conduct (cartels, abuse of dominance and other restrictions on competition).
She has acted for clients in a broad range of sectors, including in the technology, telecommunications, consumer goods, energy and financial sectors.
Client testimonials from Legal 500 UK's 2021 edition include the following: “Saira Henry excels in her command of legal analyses. Very good at handling complex and difficult legal issues and has a good oversight of all aspects of a case. Combines analytical skills and creativity with significant industry knowledge and is very solution oriented.” She has been referred to as a “true standout” and her work as “excellent.”
Saira undertook a secondment at the UK’s Competition and Markets Authority from December 2018 – May 2019.
Saira previously worked at Freshfields Bruckhaus Deringer LLP in their Brussels office as an associate.
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.
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.
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).
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
On 6 August 2019, the UK’s Competition and Markets Authority (the “CMA”) imposed an ‘Unwinding Order’ on a U.S. company, Bottomline Technologies (de), Inc (“Bottomline”), active in the business payment automation technology space, and its UK subsidiary (“Bottomline UK”), in connection with its investigation into Bottomline’s completed acquisition of Experian Limited’s Experian Payments Gateway business (the “EPG Business”). The acquisition was completed on 6 March 2019.
An ‘Initial Enforcement Order’ or ‘IEO’, preventing further integration, had already been imposed on Bottomline and Bottomline UK on 22 May 2019.
The Unwinding Order imposes obligations in relation to the handling of information:
- Bottomline must not use “EPG Confidential Information” (i.e. commercially sensitive information regarding the EPG business) to “solicit” any existing EPG customers in relation to any product or service that competes with the EPG business;
- Bottomline and Bottomline UK must “segregate” all EPG Confidential Information (including existing physical and electronic materials) and ensure that such information cannot be accessed by any Bottomline and Bottomline UK representatives or employees other than certain EPG staff, except where necessary to comply with regulatory and/or accounting obligations or with the prior written consent of the CMA;
- Bottomline and Bottomline UK must procure that EPG staff destroy or delete any “Bottomline Confidential Information” (i.e. any commercially sensitive information regarding the Bottomline business in respect of any products or services that compete with the EPG business) that they hold; and
- Bottomline and Bottomline UK must procure that no EPG staff have access to Bottomline Confidential Information, except with the prior written consent of the CMA.
The Unwinding Order remains in force until it is varied or revoked.
This matter reminds us of the risks inherent in proceeding to complete a transaction without having obtained CMA clearance, i.e. the risks of the CMA investigating a transaction (that has been legally completed) and imposing disruptive measures pending the outcome of its investigation. At a more general level, the difficulties of reversal are relative to the scale of implementation and would be far more difficult for instance if employee’ contracts have been terminated, or supply/customer contracts novated or terminated. A careful assessment of whether to voluntarily notify the CMA of a transaction prior to completion should therefore be conducted in respect of transactions involving overlapping businesses in the UK.
The UK government considers that transactions in the following sectors can raise national security concerns:
1. quantum technology;
2. computing hardware; and
3. the development or production of items for military or military and civilian use.
In order to allow the UK’s Secretary of State to intervene in transactions in these sectors, the UK government has proposed amendments to the Enterprise Act 2002 that would expand the Competition & Markets Authority’s (“CMA”) jurisdiction to review transactions in these sectors from a competition perspective. READ MORE
The possibility for a claim to be brought against the European Union (the “EU”) as a result of “damage” caused by its institutions is enshrined in Article 340 of the Treaty on the Functioning of the European Union (“TFEU”). In a General Court judgment of 10 January 2017, Case T-577/14 Gascogne Sack Deutschland and Gascogne v European Union (EU:T:2017:1), the appellants successfully brought a claim for material and non-material harm suffered as a result of the “excessive” length of the judicial proceedings in the context of an appeal against a European Commission (“Commission”) decision of 30 November 2005.
The timing of the process was as follows. On 23 February 2006, two entities from the Gascogne group filed appeals before the General Court against the Commission decision of 30 November 2005 finding the existence of a cartel in the plastic industrial bags sector in a number of Member States. The written procedure of the General Court proceedings in each of these cases ended in February 2007 and the oral procedure began in December 2010. The appeal was not dismissed by the General Court until 16 November 2011. READ MORE
Rightly considered to be a “once in a generation decision,” the UK electorate will on 23 June 2016 have a chance to vote on whether the UK should remain a member of the European Union (“EU”).
This upcoming referendum has resulted in emotional rhetoric and heated discussions in the media (and no doubt around dining tables throughout the UK and elsewhere) on which way to vote, and why. However, what is striking to us is the relative lack of focus on the legal implications of so-called “Brexit,” including on EU and UK competition law.