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Caroline Ruiz Palmer focuses her practice on all aspects of EU competition law, with a particular emphasis on merger control. Her experience includes assisting international companies in multi jurisdictional merger control filings and advising clients on anti-competitive agreements, competition compliance issues and abuse of dominance in various sectors. Read Caroline Ruiz Palmer's full bio. 

On January 31, the Board of the Mexican Competition Authority—the Federal Economic Competition Commission (COFECE)—approved REMY Holdings International’s acquisition of BorgWarner’s vehicle aftermarket business. However, the companies failed to file and were fined for their misconduct (~$153,134). The fine was less severe because the parties voluntarily acknowledged their failure to notify COFECE.

WHAT HAPPENED:

  • On October 3 2016, BorgWarner Inc. (BorgWarner) agreed to sell its REMY light vehicle aftermarket business to an investor group led by Torque Capital Group. The sale included manufacturing facilities in Mexico, US, Belgium, Tunisia and Hungary. The purchase price was approximately $80 million.
  • The deal between BorgWarner and REMY exceeded the thresholds provided in the Federal Economic Competition Law (LFCE), yet COFECE was not notified of the transaction until October 2018.
  • Under the LFCE, failure to notify a concentration is considered severe misconduct. The parties’ voluntary acknowledgement of the failure to notify, however, was a mitigating factor in determining the appropriate fine.
  • In light of the above, the COFECE fined each party MXN 1,460,800 (~$75,230).

WHAT THIS MEANS:

  • For transactions having an impact in the Mexican territory, it is advisable to verify whether a COFECE filing is required. While the fines in this matter were limited, COFECE fines can be very significant.
  • Failure to notify a concentration can be fined with up to five percent of the parties’ turnover.
  • In addition, the COFECE will analyze the impact of the transaction. If the COFECE finds that the transaction harms competition, the transaction will be deemed illicit and the parties may face additional fines of up to eight percent of their turnover.
  • In determining the amount of the fines, the COFECE will consider mitigating circumstances, such as the parties´ voluntary recognition of the infringement.
  • This decision is another example of the importance of performing an international antitrust filing assessment (often referred to as a multi-jurisdiction assessment or “Multi-J”) in all transactions having an international component. Antitrust agencies worldwide are increasing their focus on failures to notify and gun jumping generally. Last July, the Australian Competition and Consumer Commission brought its first ever gun jumping case against Cryosite and Cell Care Australia. Similarly, in April, the European Commission imposed a record fine of EUR 124.5 million on Altice for implementing its acquisition of PT Portugal before notification or approval by the Commission.

Pursuant to the EU merger control rules, a transaction that falls within the purview of the EU Merger Regulation (EUMR) must be notified to the European Commission (Commission) in advance (Article 4(1) EUMR), and must not be implemented until cleared by the Commission, known as the “standstill” obligation (Article 7[1] EUMR). A principal rationale behind the standstill obligation is to prevent the potentially negative impact of transactions on the market, pending the outcome of the Commission’s investigation.

While the standstill obligation represents a clear-cut rule, it can often be a significant challenge for businesses to apply in practice. Failure to get it right, however, can result in draconian penalties. Indeed, the Commission’s recent €124.5 million fine on Altice, which comes in the wake of a spate of enforcement actions in this arena, bears testimony to an increasingly hard stance against companies flouting the notification requirement/standstill obligation. Continue Reading European Court of Justice Provides Guidance on Scope of the Standstill Obligation Enshrined in the EU Merger Regulation

According to Advocate General Nils Wahl’s opinion, delivered on July 26, in the Court of Justice of the European Union’s (CJEU) case Coty Germany GmbH v Parfümerie Akzente GmbH (case C-230/16), suppliers of luxury goods may prohibit their authorized retailers from selling their goods via third-party internet platforms. Such bans do not necessarily infringe Article 101(1) of the Treaty of Functioning of the European Union (TFEU) (which prohibits anticompetitive agreements).

Background of the Case

On July 16, 2016, the Higher Regional Court of Frankfurt lodged a request for a preliminary ruling with the CJEU asking whether selective distribution systems that serve to ensure a “luxury image” for the goods constitute an aspect of competition that is compatible with Article 101(1) TFEU and, whether bans on sales via third-party internet platforms constitute a restriction “by object” and should be viewed as “hardcore restrictions” under the Commission’s Vertical Agreements Block Exemption Regulation (VBER).

The initial dispute arose when Coty, a supplier of luxury cosmetics in Germany, brought an action against one of its authorized retailers, Parfümerie Akzente, for having infringed a provision in Coty’s selective distribution agreement that prohibited the retailers from distributing the luxury products via third-party platforms, such as Amazon, in order to preserve the brand image. The agreement provided that the authorized retailers could only sell the products online through an “electronic store window,” provided that the luxury character of the products was preserved. Continue Reading Advocate General Wahl Delivers Opinion on Legality of Bans on Online Sales via Third-Party Platforms in Selective Distribution Systems