European Union: M&A slowdown coincides with new regulations and substantive revisions to merger control procedures

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In summary

This article discusses key jurisdictional, procedural and substantive developments regarding EU merger control from May 2022 to April 2023.


Discussion points

  • Jurisdictional developments
  • Procedural developments
  • Substantive developments

Referenced in this article

  • Council Regulation (EC) No. 139/2004 of 20 January 2004
  • Commission Notice on a simplified treatment for certain concentrations under Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings
  • Commission Implementing Regulation (EU) 2023/914
  • Regulation (EU) No. 2022/2560 of 14 December 2022
  • Illumina/GRAIL
  • Towercast
  • Viasat/Inmarsat
  • CK Telecoms UK Investments Ltd v European Commission
  • European Commission v CK Telecoms UK Investments Ltd
  • Wieland-Werke AG v European Commission
  • Microsoft/Activision Blizzard
  • Booking Holdings/Etraveli Group
  • Broadcom/VMware

Introduction[1]

EU merger statistics

Owing to various factors, there was a significant slowdown in mergers and acquisitions (M&A) in 2022. In line with the global M&A transactions by value decreasing by 37 per cent, European M&A saw a steep drop of 27 per cent.[2]

Nonetheless, the European Commission (the Commission) remained busy throughout 2022: 371 concentrations were notified (including 291 under the simplified procedure), representing an 8.4 per cent decrease in comparison to the record-breaking 2021.[3] However, with only 78 transactions notified to the Commission in the first quarter of 2023, a greater decrease in notifications might be expected in 2023.

The Commission issued two prohibition decisions in 2022 compared to none in 2021 and conducted an in-depth Phase II examination of eight cases compared to seven in 2021. In terms of remedies, the Commission cleared 12 transactions subject to remedies (10 at Phase I and two at Phase II), one more than in 2021. As in 2021, 12 deals were withdrawn prior to a decision, eight at Phase I and four at Phase II.

Key highlights

Key developments in EU merger control during the period of May 2022 to April 2023 include the following.

In a significant procedural development, in April 2023, the Commission adopted a new implementing regulation that will come into effect on 1 September 2023 in place of Commission Regulation (EC) No. 802/2004 (the Implementing Regulation). The Commission further introduced a new notice on simplified procedure (the Notice on Simplified Procedure) and a communication on the transmission of documents. The Commission has expanded the scope of review under the simplified procedure of unproblematic mergers and limited the amount of information required for a merger notification. To streamline the merger notification process, the Commission has also introduced an electronic notification system. These developments are aimed at reducing preparatory work and the costs associated with notifying mergers to the Commission. The Commission expects that these changes will contribute to its recently announced goal to streamline EU regulatory reporting obligations in general and to reduce these burdens by 25 per cent.

Review of below-threshold mergers continued to be a focus with the Court of Justice of the European Union’s (CJEU) ruling in Towercast in March 2023. The CJEU held that below-threshold transactions can be reviewed by national competition authorities (NCAs) under the rules prohibiting the abuse of a dominant position (article 102 of the Treaty on the Functioning of the European Union) following the completion of the transaction. Subsequently, the Belgian Competition Authority, merely a week after the Towercast CJEU ruling, initiated a review of a completed acquisition on the basis of the Towercast ruling. NCAs now have additional means (ie, other than the article 22 EU Merger Regulation (EUMR) referral mechanism) to review below-threshold transactions.

With a view to levelling the playing field between EU operators and their non-EU competitors who are not subject to the EU state aid rules, the EU in December 2022 established a new Foreign Subsidies Regulation (FSR) regime. This regime is expected to apply as a notification-based system that will operate in parallel to the merger control regime and will apply to concentrations signed after 12 July 2023.

In line with greater scrutiny of transactions, gun-jumping-related cases remain a focus, with the Commission issuing a statement of objections to Illumina/GRAIL, the EU General Court (the General Court) upholding the gun-jumping penalty imposed by the Commission on Canon for deploying a two-step warehousing structure and AG Collins suggesting that Altice’s appeal in relation to the General Court’s endorsement of its record penalty be dismissed in its entirety.

The Commission is expected to publish an updated Market Definition Notice later this year. This Notice is expected to codify various principles that have emerged from the Commission’s decisions, and the General Court and CJEU’s case law, as well as to provide guidance on defining markets and the supporting evidence for digital and zero-price markets.

The standard of proof required for the Commission to establish a significant impediment to effective competition (SIEC) and, therefore, to block a merger has been the subject matter of debate since the General Court’s decision in CK Telecoms in 2020. In that case, the General Court applied a strong probability test to overrule the Commission’s prohibition decision. The case is now before the CJEU. In October 2022, AG Kokott recommended overruling the General Court on the basis that the correct standard of proof for the Commission is that of the balance of probabilities. The ambiguity surrounding the standard of proof in merger cases was further increased by the General Court’s ruling in Tata Steel/Thyssenkrupp, where the General Court upheld the Commission’s prohibition decision, finding that the Commission satisfied the sufficient degree of probability standard of proof. In this context, the CJEU’s decision in CK Telecoms is keenly awaited and will be a landmark decision in EU merger control.

In this article, we consider the above in more detail and discuss additional jurisdictional, procedural and substantive developments.

Jurisdictional developments

Article 22 EUMR: the Illumina/GRAIL saga continues

In previous editions, we reported on an article 22 EUMR referral request for the acquisition by Illumina of GRAIL,[4] initiated by the French Competition Authority and several other member states,[5] and accepted by the Commission in the light of its new Guidance on the referral mechanism set out in article 22 EUMR.[6] After appealing to the General Court arguing the Commission’s lack of competence to examine the transaction,[7] Illumina announced it had completed its acquisition of GRAIL, notwithstanding the pending merger control investigation. The Commission then opened a gun-jumping investigation[8] and adopted interim measures aimed at keeping the operations of the two companies separate,[9] which the parties subsequently challenged before the General Court.[10]

In July 2022, the General Court delivered a judgment on Illumina’s jurisdictional challenge endorsing the Commission’s revised approach to article 22 EUMR.[11] It clarified that, while it might have been the Commission’s previous practice to discourage national authorities from referring transactions that did not meet the national merger control thresholds, there was nothing in the wording of article 22 or in the history of the legislation that restricted the Commission from accepting these referrals.[12] On the contrary, the General Court described the referral mechanisms as ‘an instrument intended to remedy control deficiencies inherent in a system based principally on turnover threshold which, because of its rigid nature, is not capable of covering all concentrations which merit examination at European level’.[13]

Having conducted an in-depth investigation into the concentration in parallel, the Commission adopted a prohibition decision in September 2022.[14] It found that GRAIL and its rivals were engaged in an innovation race to develop and commercialise early cancer detection tests, for which they relied on Illumina’s next-generation sequencing systems (NGS). Rejecting the proposed remedies, the Commission identified vertical foreclosure concerns premised on a prediction that NGS-based cancer detection systems market would reach a value of €40 billion by 2035.[15] In November 2022, Illumina filed an appeal against the Commission’s prohibition decision. [16]

Following the decision, the Commission decided to renew and adjust the interim measures imposed to ensure the continued separation of Illumina and GRAIL. Illumina challenged the Commission’s order in January 2023, arguing, inter alia, that the decision is disproportionate, erroneous and vitiated by lack of reason and motivation.[17]

Beyond Illumina/GRAIL

Although Illumina/GRAIL became a flagship case for the Commission’s updated article 22 referral policy, there have been a few other referrals under the referral mechanism (however, these were not cases falling below the thresholds of all national merger control regimes – they fell within the jurisdiction of at least one member state).

We have previously reported on the acquisition by Meta of Kustomer, which, after the case had been referred to it by the Austrian competition authority, the Commission cleared with conditions in Phase II.[18]

More recently, the Commission accepted the referral requests to assess the acquisition of Inmarsat by Viasat.[19] The parties compete as operators of satellite networks and are global providers of two-way satellite communication for commercial customers and governments. Fearing that the transaction may allow Viasat to reduce competition in the market for the supply of broadband in-flight connectivity services to commercial airlines, the Commission opened an in-depth investigation into the deal, which is currently ongoing at the time of writing.[20]

In addition, the Commission also accepted article 22 requests submitted by a number of member states in relation to the proposed acquisition of Oticon Medical by Cochlear Limited, both manufacturers and suppliers of hearing implants.[21]

Notwithstanding the above examples, Illumina/GRAIL remains the only transaction referred under article 22 EUMR that did not meet the national thresholds in any member state. It therefore seems that, despite the initial fears that the Commission’s revised referral policy would be used widely and unpredictably, the circumstances in which below threshold transactions are called in seem to remain rare. Aiming to reduce uncertainty, the Commission has also recently clarified the ways in which parties can benefit from early indications on whether a particular transaction appears to be a suitable candidate for an article 22 EUMR referral.[22]

Article 102 as a new route for below-thresholds review

On 16 March 2023, the CJEU issued its ruling in Towercast following a request for a preliminary ruling by the Paris Court of Appeal. In this ruling, the CJEU clarified that acquisitions by dominant companies that do not meet the EU or national merger control thresholds and were not reviewed under the merger control rules (following referral) can still be reviewed by NCAs following completion under the rules prohibiting the abuse of a dominant position.[23] As a result, NCAs now have an additional means of exercising jurisdiction over non-notifiable deals. This follows a broader trend of stricter regulatory scrutiny of M&A transactions by competition authorities. The ruling follows the adoption of the article 22 EUMR referral mechanism, which also catches M&A transactions that do not meet merger notification thresholds.

As a result of this ruling, M&A transactions contemplated by dominant companies will now require additional consideration and planning to consider the potential effect of the transaction. Competitors or parties affected by a completed M&A transaction can also strategically complain to the NCAs to initiate an investigation under the rules prohibiting an abuse of a dominant position, which was the course of action taken by Towercast that ultimately resulted in this ruling by the CJEU. Indeed, on 22 March 2023, the Belgian Competition Authority launched an investigation under the rules prohibiting the abuse of a dominant position against a below-the-thresholds acquisition by a telecommunications company, citing the Towercast ruling as a basis for its probe. It will be interesting to see if this is a rare occurrence or a trend that other NCAs will follow.

FSR and interplay with the EUMR

In December 2022, the EU adopted the FSR,[24] which is intended to level the playing field between EU operators and their competitors from non-EU member states that are not subject to the EU state aid rules.[25] The FSR seeks to do this by creating new control instruments that allow the Commission to address foreign subsidies, including through a notification-based tool applicable in relation to potentially subsidised M&A.

The FSR establishes a mandatory suspensory notification-based regime for concentrations signed after 12 July 2023 that satisfy the following cumulative notification thresholds:

  1. the undertaking to be acquired, one of the merging undertakings (in a scenario of a legal merger, i.e. not an acquisition or joint venture scenario), or the created joint venture, is established in the EU and has aggregate EU turnover of EUR 500 million or more; and
  2. the aggregate amount of the foreign “financial contributions” received by the undertakings concerned is more than EUR 50 million over the three years prior to notification.[26]

Transactions that meet these thresholds cannot be closed before clearance is granted. As is the case under the EU merger control regime, a failure to notify or respect the standstill obligation may result in the Commission imposing fines of up to 10 per cent of the undertakings’ aggregate worldwide turnover.[27] In addition, transactions below the thresholds could still be reviewed ex officio, even after completion has taken place.

The FSR notification regime will run in parallel with the EU merger control regime and, thus, adds an additional level of potential scrutiny for M&A deals. Similar to the merger control regime, the FSR procedure is split into a preliminary review and an in-depth investigation. The time period for the review is, in line with that under the EUMR, 25 and 90 working days respectively.[28]

The Commission has further clarified that the substantive focus of the two instruments will be different. While the EUMR investigations focus on the distortion of competition within the relevant markets, the FSR seems to focus on the potential distortions to the acquisition process itself. Similarly, it seems that under the FSR, transactions will risk being prohibited when the foreign subsidy played an instrumental role in the acquisition, even if it did not necessarily lead to an SIEC in the relevant markets.[29] Given the differences in the substantive assessment, it is possible that the parallel investigations may lead to different outcomes, which will undoubtedly increase uncertainty.

Given the overwhelmingly negative feedback received by respondents to the Commission’s public consultation on the draft implementing the Regulation, emphasising the unreasonably broad scope of information required in the notification form, it remains to be seen whether the Commission will introduce further amendments to the draft text, and if so, what their impact will be.

Procedural developments

Revised merger implementing regulation and notice on simplified procedure

In April 2023, the Commission published its revised Implementing Regulation and revised the Notice on Simplified Procedure. These will be applicable from 1 September 2023.

The key amendments are as follows.

Offshore joint ventures

Offshore joint ventures with no or negligible current or expected turnover within the EEA remain suitable for treatment under the simplified procedure. However, the Notice on Simplified Procedure introduces two additional factors.

Expected turnover

The Notice on Simplified Procedure defines ‘expected turnover’ as the turnover expected to be generated in the three years following the notification.[30] In other words, the offshore joint venture’s EEA turnover should not only be less than €100 million in the previous financial year but should also be expected to remain below €100 million in the three following financial years, for the transaction to benefit from the simplified procedure. While a new addition that in principle narrows the scope of the simplified procedure, in practice, this amendment codifies what has often been a query raised by the case team during pre-notification and, therefore, should not add any additional burden on the notifying parties.

Asset transfer

The Notice on Simplified Procedure provides that all assets (subject to the €100 million threshold), transferred or planned to be transferred by the parents at the time of the joint venture, should be considered regardless of the date when the asset will be transferred to the joint venture.[31] Therefore, the parties must consider the value of any planned asset transfer to the joint venture that they have contemplated at the time of the merger notification when concluding on the suitability of notifying the transaction under the simplified procedure.

Market share between 20 and 50 per cent (horizontal overlap) and 30 and 50 per cent (vertical overlap)

The Notice on Simplified Procedure retains the prior market share thresholds of below 20 per cent for horizontal overlap markets and below 30 per cent for vertical overlap markets for the simplified procedure to apply. In addition, it expands the scope of the simplified procedure by introducing an Herfindahl-Hirschman Index (HHI)-based criterion (for vertical overlaps as well). Concentrations with horizontal overlaps where the market shares are between 20 and 50 per cent will benefit from the simplified procedure if the increment of the HHI is below 150.[32] Similarly, concentrations with vertical overlaps will benefit from the simplified procedure[33] where market shares are between 30 and 50 per cent in both upstream and downstream markets, the increment of the HHI is below 150 on both markets, and the smaller undertaking in terms of market share is the same in both markets.

Additional vertical category eligible for simplified treatment

The Notice on Simplified Procedure has introduced an additional vertical category for simplified treatment. Where, on vertically related markets, the parties’ individual or combined market shares are less than 30 per cent on the upstream market and the parties on the downstream market hold a purchasing share of less than 30 per cent regarding the upstream input, the transaction can benefit from the simplified procedure.[34]

Flexibility clause

The Notice on Simplified Procedure introduces a flexibility clause, which allows the Commission, at the parties’ request, to treat transactions under the simplified procedure even if they do not meet the thresholds under the Notice. In particular this will apply in the following cases:

  • horizontal overlap: where the combined market share of the parties is between 20 and 25 per cent;[35]
  • vertical overlap: where the individual and combined market shares are below 35 per cent; or the combined market shares are below 50 per cent in one market while the individual and combined market shares of the parties in the other vertically related market is below 10 per cent;[36] and
  • joint ventures: the annual EEA turnover of the joint venture and the total value of asset transfers to the joint venture in the EEA (including planned transfers) at the time of the notification is, in each case, below €150 million.[37]

New format for Short Form CO

The Notice on Simplified Procedure will adopt a new tick-the-box format notification form for simplified cases, with multiple choice questions and tables. This should make the simplified merger notifications (Short Form CO) quicker and more cost-efficient to prepare.

Super-simplified procedure

The super-simplified procedure allowing the parties to avoid completing some sections of the Short Form CO will apply where the concentration does not lead to any assets or turnover in the EEA and, where there are no vertical or horizontal overlaps between the parties. In these cases, the parties need not engage in pre-notification and can directly notify the concentration to the Commission.

Fully electronic merger notifications

The Commission is encouraging the use of digital filings and has introduced an electronic notification system that specifies the format for submitting notifications and sets out the requirements for electronic signatures.

Continued enforcement of the rules on gun-jumping

Gun-jumping has remained a focus in the past year particularly owing to:

  • the ongoing proceedings by the Commission against Illumina/GRAIL;
  • the General Court’s decision in Canon, upholding the Commission’s decision to penalise Canon for gun-jumping by deploying a two-step warehousing structure; and
  • Altice appealing the General Court’s decision that materially upheld the Commission’s finding of gun-jumping by Altice to the CJEU.

Illumina/GRAIL

As noted above, the Commission has initiated gun-jumping proceedings against Illumina and GRAIL. In July 2022, it issued a statement of objections to Illumina and GRAIL stating that ‘Illumina and GRAIL actually implemented the acquisition prior to the conclusion of the Commission’s in-depth investigation into the transaction’.[38] The Commission’s decision is awaited.

Canon

In June 2019, the Commission imposed a €28 million fine on Canon for implementing its acquisition of Toshiba Medical Systems Corporation (TMSC) prior to notification and clearance by the Commission. In making this acquisition, Canon deployed a two-step warehousing strategy involving an interim transaction and the ultimate transaction. The interim transaction involved the transfer of 95 per cent of the shares of TMSC to a special purpose vehicle (SPV) and the simultaneous acquisition of 5 per cent of the shares of TMSC and a call option for the 95 per cent of TMSC’s shares held by the SPV by Canon. The ultimate transaction involved Canon exercising the call options and acquiring control over TMSC after merger control approval had been granted by various competition authorities. The Commission found that the interim step was a partial implementation of the transaction in breach of the standstill obligation and a failure to notify under the EUMR. Accordingly, it imposed a €28 million on Canon. Canon appealed this decision to the General Court.

In May 2022, the General Court dismissed Canon’s appeal.[39] It held that the warehousing structure deployed by Canon was in breach of the obligation not to implement its acquisition of TMSC before the Commission cleared the transaction (and the obligation to notify the deal prior to implementation). The General Court reasoned that a breach of the standstill obligation is not limited to the acquisition of control, but also covers transactions that contribute to a change in control. By placing TMSC into a warehousing structure, Canon had partially implemented the acquisition, as this structure contributed to a lasting change of control in the target. Accordingly, Canon was in breach of the standstill obligation and the failure to notify under the EUMR.

Altice

We had reported last year that the General Court had materially upheld the Commission’s record penalty on Altice for gun-jumping. Altice appealed this decision to the CJEU and the CJEU heard the case in February 2023. On 27 April 2023, AG Collins delivered his opinion in which he recommended that Altice’s appeal be rejected in its entirety.[40] AG Collins suggested that the General Court was right in finding that Altice’s merger agreement allowed it to exercise influence over the target, PT Portugal.[41] He further added that the General Court rightly endorsed two separate fines, one for the implementation of the deal before filing and the other for the implementation before the Commission’s clearance. The CJEU’s decision is yet to be handed down.

Substantive developments

New Market Definition Notice to be adopted

On 8 November 2022, the Commission published its draft revised Market Definition Notice.[42] The Notice provides detailed explanatory guidance based on recent case law of the CJEU, the General Court and the Commission’s practice.

In particular, the Market Definition Notice addresses various issues such as:

  • the relevance of non-price parameters, such as quality and innovation in the context of zero monetary price products and highly innovative industries;
  • market definition in the presence of significant investment and R&D where the Commission may consider all potential outcomes of R&D processes and focus on those ‘scenarios where competition would be significantly affected by the conduct or the transaction in question’;[43] and
  • market definition in multi-sided platforms where the Commission may ‘define a relevant product market for the products offered by a platform as a whole, in a way that encompasses all (or multiple) user groups, or it may define separate relevant product markets for the products offered on each side of the platform’.[44]

The final Notice is expected around the third quarter of 2023.

Clarification of the standard of proof

The General Court in 2020 annulled the Commission’s prohibition decision in CK Telecoms on the basis that the Commission had not satisfied the standard of proof required to establish an SIEC required to block a concentration. In particular, it held that the Commission has to:

produce sufficient evidence to demonstrate with a strong probability the existence of significant impediments following the concentration. Thus, the standard of proof applicable in the present case is therefore stricter than that under which a significant impediment to effective competition is ‘more likely than not’, on the basis of a ‘balance of probabilities’, as the Commission maintains.[45]

It concluded that the Commission had failed to meet that standard.

The Commission appealed the General Court’s judgment to the CJEU. In October 2022, AG Kokott issued an opinion stating that the General Court erred in its decision. In particular, AG Kokott noted that:

only the standard of proof associated with the ‘plausibility’ or ‘balance of probabilities’ test seems to me to be compatible with the discretion enjoyed by the Commission in the context of its (forward-looking) complex economic analyses in relation to concentrations, which is why the scope of the judicial review is, in essence, limited to ascertaining whether there have been manifest errors of assessment . . . By contrast, paragraph 118 of the judgment under appeal states, first, that the Commission is required to produce sufficient evidence to demonstrate with a ‘strong probability’ the existence of significant impediments caused by the concentration at issue and, second, that the standard of proof applicable is therefore ‘stricter’ than that under which a significant impediment to effective competition is ‘more likely than not’, on the basis of a ‘balance of probabilities’. Accordingly, as the Commission is fully entitled to argue, in so doing, the General Court required a higher standard of proof, contrary to the premisses of the case-law set out in points 55 and 56 above and therefore erred in law.[46]

The CJEU’s judgment will be particularly significant because the General Court in its Thyssenkrupp judgment in June 2022 diverged from its ruling in CK Telecoms and held that the Commission was only required to demonstrate ‘with a sufficient degree of probability, in its decision declaring a concentration incompatible with the internal market, that the transaction significantly impedes effective competition in the internal market or in a substantial part of it.’[47]

Therefore, the correct standard of proof remains in flux and the CJEU’s judgment is keenly awaited and is expected to offer clarification on the standard of proof for the review of concentrations.

The General Court confirms that anticompetitive effects in a part of a market can be sufficient to block a transaction

In 2019, the Commission prohibited Wieland’s proposed acquisition of Aurubis Rolled Products and Schermetall on the basis that the merger would ‘reduce competition and increase prices for rolled copper products used by European manufacturers’ despite the remedies offered by the parties.[48] Wieland had appealed to the General Court on (among others) the basis that the Commission defined the market as the overall market for rolled products, but focused its market investigation and proposed commitments on specific segments of the market, such as high-end rolled products.[49] In doing so, Wieland alleged that the Commission’s analysis was inconsistent and against the principle of legal certainty.

In May 2022, the General Court dismissed the appeal. It held that:

distinction should be drawn between the definition of the relevant market, namely the market on which the notified concentration occurs and which might therefore be affected by it, and the assessment of the effects of that concentration on competition on that market. The competition analysis of the notified concentration can lead to a finding that that concentration does not impede competition equally on all parts of the relevant market, without that affecting or calling into question the very definition of that market . . . the fact that the Commission found that the concentration at issue would have a more significant impact on competition in certain segments of the relevant market, in particular the segment for ‘high-end’ rolled products or certain sub-segments belonging, essentially, to that segment, does not lead to the conclusion that, in so doing, it changed its definition of the relevant market, identified as being the overall, highly differentiated market for rolled products, by reducing it to only the segments or sub-segments of that market in which it considered that competition would be most directly and highly affected and where the significant impediment to effective competition resulting from that concentration would be most evident.[50]

Accordingly, the General Court confirmed that the existence of an overall market does not exclude the possibility of identifying different competitive dynamics in different market segments. A concentration can impede competition differently on different parts of the relevant market, without necessarily calling into question the correctness or appropriateness of the definition of that (differentiated product) market.

Continued scrutiny in tech markets

The year 2022 witnessed a continued emphasis on mergers in the digital and tech markets. Notable transactions being scrutinised by the Commission include the following.

Microsoft/Activision Blizzard

In November 2022, the Commission opened a Phase II investigation into the proposed acquisition of Activision Blizzard by Microsoft.[51] The Commission’s preliminary concerns relate to: potential foreclosure of access to Activision Blizzard’s console and PC video games of particularly high-profile and highly successful games such as ‘Call of Duty’; potential foreclosure of access to multi-game subscription services and cloud gaming services; and reduction in competition for PC operating systems.

Microsoft has been engaging with various competition regulators, including the Commission, by offering commitments. Indeed, on 16 March 2023, Microsoft submitted certain commitments to the Commission. In April 2023, it received clearance from South Africa’s Competition Commission following assurances that ‘Call of Duty’ will be supplied to competitors. However, having rejected Microsoft’s proposed commitments, the UK’s Competition and Markets Authority (CMA) decided to block the transaction, finding that the acquisition could ‘alter the future of the fast-growing cloud gaming market, leading to reduced innovation and less choice for UK gamers over the years to come’.[52]

The Commission diverged from the CMA’s approach and on 15 May 2023 approved the transaction subject to certain conditions.

Booking/eTraveli

In November 2022, the Commission initiated a Phase II investigation into the proposed acquisition of eTraveli by Booking.[53] The Commission’s preliminary concern is that Booking may have a dominant position on the market for the provision of accommodation online travel agencies services. The acquisition may, therefore, significantly reduce competition in this market by combining eTraveli’s activities in flight online travel agencies services with Booking’s own suite of services.

The provisional deadline for a decision by the Commission is 30 August 2023.

Broadcom/VMware

In December 2022, the Commission opened an in-depth investigation into Broadcom’s proposed acquisition of VMware to assess:

if Broadcom’s acquisition of VMware may restrict competition in the market for the supply of NICs, FC HBAs and storage adapters. In addition, the Commission had concerns that Broadcom may: (i) hinder the development of SmartNICs by other providers, and (ii) start bundling VMware’s virtualisation software with its own software and no longer offer VMware’s virtualisation software as a stand-alone product.[54]

Subsequently, in April 2023 – in a first of its kind press release to bolster transparency – the Commission announced it had issued a statement of objections informing Broadcom of its preliminary view that ‘Broadcom may restrict competition in the global markets for the supply of FC HBAs and storage adapters by foreclosing competitors’ hardware by delaying or degrading their access to VMware’s server virtualisation software.’[55] In a change of policy the Commission intends, from now on, to issue a press release at this stage of the Phase II procedure as it believes this will provide added value by clarifying the status of the case more widely.

The provisional deadline for a decision by the Commission is 17 July 2023.


Notes

[1] This article aims to provide an overview of the main EU merger control developments over the period from May 2022 to April 2023. The contents of this article are for reference purposes only: they do not constitute legal advice and should not be relied upon as such.

[2] See ‘Dealmakers brace for slow 2023 recovery after global M&A sinks’, Reuters (21 December 2022).

[3] See Directorate General for Competition, ‘Merger statistics’.

[4] See Commission’s daily news for 20 April 2021.

[5] France was joined by Belgium, the Netherlands, Greece, Iceland and Norway. See ‘Illumina loses French legal challenge to EU referral of Grail deal’, MLex (1 April 2021).

[6] See European Commission, ‘Communication from the Commission: Commission Guidance on the application of the referral mechanism set out in Article 22 of the Merger Regulation to certain categories of cases’, C(2021) 1959 final, 26 March 2021.

[7] For further information, see HSF Competition Notes, ‘Illumina challenges the European Commission’s new approach on merger case referrals: lessons for M&A deals’, 19 October 2021.

[8] See Commission press release, ‘ Mergers: Commission starts investigation for possible breach of the standstill obligation in Illumina/GRAIL transaction’, IP/21/433.

[9] See Commission press release, ‘Mergers: Commission adopts interim measures to prevent harm to competition following Illumina’s early acquisition of GRAIL’, IP/21/5661. For further information, see HSF Competition Notes, ‘Commission publishes guidance on Article 22 referrals for transactions falling below national thresholds – New approach can impact pharma, tech and other deals involving start-ups or innovators’, 1 April 2021.

[10] Case T-755/21 Illumina v Commission; Case T-23/22 GRAIL v Commission.

[11] Case T227/21 Illumina v Commission.

[12] For further information, see HSF Competition Notes, ‘General Court endorses Commission’s revised approach to review transactions below EU and national merger thresholds via Article 22 EUMR referrals’, 22 July 2022.

[13] Case T227/21 Illumina v Commission, paragraph 142.

[14] See Commission press release, ‘Mergers: Commission prohibits acquisition of GRAIL by Illumina’, 6 September 2022.

[15] For further information, see HSF Competition Notes, ‘Illumina’s acquisition of Grail blocked by the EU Commission’, 7 September 2022.

[16] Case T-709/22 Illumina v Commission.

[17] Case T-5/23 Illumina v Commission.

[18] Case M10262, Meta (formerly Facebook)/Kustomer.

[19] See Commission’s daily news for 27 July 2022.

[20] See Commission press release, ‘Mergers: Commission opens in-depth investigation into the proposed acquisition of Inmarsat by Viasat’, 13 February 2023.

[21] See Commission’s daily news for 7 December 2022.

[22] See European Commission, ‘Practical information on implementation of the “Guidance on the application of the referral mechanism set out in Article 22 of the Merger Regulation to certain categories of cases”’.

[23] For further information, see HSF Competition Notes, ‘Non-notifiable M&A deals can be reviewed under abuse of dominance rules: does heightened regulatory intervention in deal-making lie ahead?’, 24 March 2023.

[24] See Regulation (EU) 2022/2560 of the European Parliament and of the Council of 14 December 2022 on foreign subsidies distorting the internal market, OJ L 330/1, 23 December 2022.

[25] For further information, see HSF Competition Notes, ‘EU Foreign Subsidies Regulation Adopted – Draft Implementing Regulation to be Published Beginning of 2023’, 21 December 2022.

[26] Article 20(3) of FSR.

[27] Article 26(3) of FSR.

[28] Article 24 of FSR.

[29] For further information, see HSF Competition Notes, ‘Highlights from the HSF & Oxera Joint Seminar on the EU’s Foreign Subsidies Regulation’, 15 February 2023.

[30] Paragraph 5(b)(i), Notice on Simplified Procedure.

[31] Paragraph 5(b)(ii), Notice on Simplified Procedure.

[32] Paragraph 5(d)(i)(bb), Notice on Simplified Procedure.

[33] Paragraph 5(d)(ii)(cc), Notice on Simplified Procedure.

[34] Paragraph 5(d)(ii)(bb), Notice on Simplified Procedure.

[35] Paragraph 8(a), Notice on Simplified Procedure.

[36] Paragraph 8(b), Notice on Simplified Procedure.

[37] Paragraph 9, Notice on Simplified Procedure.

[38] See Commission’s press release ‘ Mergers: Commission alleges Illumina and GRAIL breached EU merger rules by early implementation of their acquisition’, 19 October 2022.

[39] Case T-609/19 Canon Inc v European Commission.

[40] Case C-746/21P Altice Group v European Commission, Opinion of Advocate General Collins, delivered on 27 April 2023.

[41] Ibid, paragraphs 51, 64.

[42] See Commission’s press release ‘Competition: Commission seeks feedback on draft revised Market Definition Notice’, 8 November 2022.

[43] See Market Definition Notice, paragraph 93.

[44] See Market Definition Notice, paragraph 95.

[45] Case T-399/16, CK Telecoms UK Investments Ltd v European Commission, paragraph 118.

[46] Case C-376/20P European Commission v CK Telecoms UK Investments Ltd, Opinion of Advocate General Kokott delivered on 20 October 2022, paragraphs 56, 57.

[47] Case T-584/19 Thyssenkrupp AG v European Commission, paragraph 280.

[48] See Commission’s press release ‘Mergers: Commission prohibits Wieland’s proposed acquisition of Aurubis Rolled Products and Schwermetall’, 6 February 2019.

[49] Case T-251/19 Wieland-Werke AG v European Commission, paragraph 57.

[50] Case T-251/19, Wieland-Werke AG v European Commission, paragraphs 64 and 71.

[51] See Commission’s press release ‘Mergers: Commission opens in-depth investigation into the proposed acquisition of Activision Blizzard by Microsoft’, 8 November 2022.

[52] See CMA’s press release, ‘Microsoft/Activision deal prevented to protect innovation and choice in cloud gaming’, 26 April 2023.

[53] See Commission’s press release ‘Mergers: Commission opens in-depth investigation into the proposed acquisition of eTraveli by Booking’, 16 November 2022.

[54] See Commission’s press release ‘ Mergers: Commission opens in-depth investigation into the proposed acquisition of VMware by Broadcom’ 20 December 2022.

[55] See Commission’s press release ‘ Mergers: Commission sends Broadcom Statement of Objections over proposed acquisition of VMware’ 12 April 2023.

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