News

United Kingdom: Common merger application form

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As an attempt to simplify procedures, the move to a uniformly recognised questionnaire should be welcomed. As a practical matter, however, the benefits of the new system are limited. The new form reflects the difficulties involved in achieving effective simplification.

France: Multi-merger notification form

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The new common form may give rise (perhaps unintentionally) to an increase in pre-notifications and possibly full notification in France. It will also formalise the pre-notification contact with the DGCCRF.

WorldCom/ MCI

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US telecommunications company WorldCom finally put an end to speculation about the future owner of fellow telecoms company MCI with a US$37 billion bid, which included a US$7 billion bid for BT’s stake in MCI.

Italy: Judicial review

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The bottle-manufacturer case shows the need to find a system involving proportionality, in terms of the consideration of the issues, in the process of judicial review of the Autorità Garante’s decisions. This would allow a smooth enforcement of competition law. On the other hand the absence of judicial review would deprive companies subject to an investigation of their right of defence. These cases show that this delicate balance is still under review, allowing plenty of opportunity for successful appeal or delay, although in many cases TAR has upheld the decisions of the Italian competition authority.

Denmark: Group exemptions under new Act

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The Danish competition authority is in the process of issuing group exemptions and has published a draft group exemption for business chains within the daily consumer goods area.

United States: Resale price maintenance

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In Khan, the Supreme Court received briefs supporting the rule of reason approach from a wide variety of sources, including the Justice Department and the Federal Trade Commission, automakers, beer distributors and newspaper publishers. In contrast, a group of approximately 30 state attorneys-general opposed the overruling of the per se rule enunciated in Albrecht. In finding for State Oil, the Court implicitly rejected the argument of the Attorneys General that maximum price fixing 'displaces the free play of market forces'.

Ireland: Competition Authority Guidelines

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The publication of this series of Guidelines is further evidence of the Authority’s intention to use its new enforcement powers in a proactive way. Since it was given these powers in the 1996 Act, it has taken effective action in relation to a number of complaints from a variety of sources. The issues involved have related to matters such as resale price maintenance, collective boycotts and industrywide price-fixing arrangements.

Austria: Merger control turnover rules

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The Austrian Cartel Court’s decision to interpret the turnover calculation rules of Austrian merger control somewhat restrictively is very welcome news for all companies engaging in mergers and acquisitions. The court’s interpretation, albeit as yet unconfirmed by the Austrian Supreme Court, will go some way towards making the inclusion of turnover for the purpose of merger control, which is almost open-ended according to the letter of the law, more manageable. In effect, as long as there are no spillover effects to other partners of a joint venture concerned, the decision would seem to exclude the turnover of joint venture partners (and not of the joint venture as such).

Belgium: Conditional clearance

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The previous case law of the Council suggested that it had adopted the EU Commission’s approach that undertakings could be accepted in both stage I and stage II decisions. (The amended EU merger regulation, which comes into effect on 1 March 1998, incorporates a new provision confirming that the EU Commission may make stage I (and stage II) clearance decisions conditional on undertakings.)

European Union: More cooperation

Premium 01 December 1997

It remains to be seen whether a significant caseload is transferred by the Commission to national authorities following the adoption of this Notice. If this does result in a considerable reallocation of cases, there will inevitably be increased pressure on the resources of national competition authorities. Of particular interest in this context is that the UK Competition Bill is due to implement an EU-style competition regime in the UK in 1998. In conjunction with this, the Bill contains specific provisions authorising the Director General of Fair Trading to obtain a warrant to enter premises by force when undertaking an investigation at the request of the European Commission in connection with an Article 85 or 86 investigation which has been commenced at the EU level.