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Annual European Competition Review 2019

McDermott's Annual European Competition Review summarizes key developments in European competition rules. During the previous year, several new regulations, notices and guidelines were issued by the European Commission. There were also many interesting cases decided by the General Court and the Court of Justice of the European Union. All these new rules and judicial decisions may be relevant for your company and your day-to-day practice. In our super-connected age, we can be inundated by information from numerous sources and it is difficult to select what is really relevant to one’s business. The purpose of this review is to help general counsel and their teams to be aware of the essential updates. This review was prepared by the Firm’s European Competition Team in Brussels and Paris. Throughout 2019 they have monitored legal developments and drafted the summary reports. Access the full report.

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6 Trends in Global Antitrust M&A, and How General Counsel Can Deal with Them

Today, companies looking to merge with others across jurisdictions would do well to consider antitrust issues at the beginning of the transaction process; regulatory antitrust challenges to M&A are increasing globally. On Corporate Counsel, McDermott partners Jon B. Dubrow and Joel R. Grosberg discuss six risks to deals from antitrust regulators, such as vertical merger enforcement changes at the US DOJ, and ways to manage them. Access the full article.

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Antitrust M&A Snapshot | Regulator Focus on High-Tech Transactions, Acquisitions and Impact on Innovations

Antitrust regulators in the United States and Europe were very active in the final quarter of 2018 closing a large number of cases requiring in-depth investigations. In the United States, regulators continue their focus on the potential need to update their methods of reviewing high-tech transactions with public hearings on the future of antitrust enforcement. In Europe, recent reviews of Takeda’s acquisition of Shire and the creation of a joint venture between Daimler and BMW show a focus on how transactions will impact innovation for new products. Read the full issue.

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Five Things To Know About German Merger Control

As reported previously, German competition law was recently amended. The amendments included with the introduction of a “size of transaction”-threshold a notable change with respect to German merger control. The following is a reminder of five important features of German merger control which you should be aware of: The jurisdictional thresholds of German merger control are easily triggered German merger control applies if the parties to a transaction (usually the acquirer and the target) exceeded, in the last financial year, certain turnover thresholds. In an interna­tional context, these thresholds are relatively low and easily triggered: Joint worldwide turnover of all parties > € 500 million, and German turnover of at least one party > € 25 million, and German turnover of another party > € 5 million. There is a new “size of transaction”-threshold Since June 2017, German merger control can also be triggered if a newly introduced “size of...

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THE LATEST: European Court of Justice Clarifies Application of European Union Merger Control Rules to Joint Ventures

On 7 September 2017, the European Court of Justice issued a decision (Decision) on the interpretation of the European Union Merger Regulation (EUMR). The Decision clarifies the conditions under which the EUMR applies to the setting-up of joint venture companies. WHAT HAPPENED: 3(4) of the EUMR stipulates that the “creation” of joint ventures requires a notification only if the joint venture “performs the functions of an autonomous economic entity” (Full-Function JV). Companies with management dedicated to its day-to-day operations, as well as access to sufficient resources including staff, finance and assets usually qualify as Full-Function JV. If the joint venture has only one specific function for the parent companies (e.g. supplying input products or services), and has no or only very limited own resources, it is unlikely to be considered a Full-Function JV. There has been considerable uncertainty whether Art. 3(4) EUMR applies only to the creation of a...

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Advocate General Wahl Delivers Opinion on Legality of Bans on Online Sales via Third-Party Platforms in Selective Distribution Systems

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...

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THE LATEST: German Antitrust Authority Issues Guidelines on Resale Price Maintenance

On 12 July 2017, the German Federal Cartel Office (FCO) published a guidance paper (Guidance Paper) on the prohibition of resale price maintenance (RPM). The Guidance Paper has a particular focus on the food retail sector. At the same time, it offers good insights into the FCO’s current overall thinking on RPM. The FCO reiterates that companies engaging in RPM may be subject to severe fines. In addition, it is evident from the Guidance Paper that the FCO has a very broad understanding as to what may be considered as RPM. WHAT HAPPENED: RPM describes a situation where a supplier and a retailer agree that the retailer will not resell the supplier’s products below a certain (minimum) price. While RPM falls under the rule of reason under US Federal antitrust law, it is considered as a hardcore antitrust restriction in most European jurisdictions, as well as under some US State antitrust laws (cf. Maryland’s Attorney General’ recent challenge of RPM). The FCO is...

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Reform of German Competition Law

A number of amendments to the German competition law (Amendment) entered into force on 9 June 2017. The key changes are: Merger control: Introduction of a new “size of transaction”-threshold Sanctions for antitrust law infringements: Rules of liability aligned to EU concept, in particular with respect to “parental liability” Private enforcement: Implementation of EU Cartel Damage Claims Directive. Merger control: New “size of transaction” threshold While the existing merger control “turnover”-thresholds remain unchanged and will continue to apply, the Amendment introduces an alternative “size of transaction”-threshold. The new threshold is the result of a perceived lack of control over transactions involving companies with significant market potential, but–for the time being–limited actual revenues in Germany, like tech start-ups with immense predictable growth. Under the new threshold, transactions will have to be notified in Germany if (i) the parties’...

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McDermott EU Competition Annual Review 2016

It is difficult for General Counsel and their teams to monitor all new developments adequately. With the growth of the Internet and the daily updates to EU competition rules, everyone receives and has access to masses of information, but it is difficult to select that which is really relevant to one’s business. McDermott’s EU Competition team across Brussels, France, Germany and Italy has authored the EU Competition Annual Review 2016 to help General Counsel and their teams to focus on the essential updates that they should be aware of. This Special Report summarizes recent developments in EU competition rules during the year 2016 where several new regulations, notices and guidelines were issued by the European Commission and many interesting cases were decided by the General Court and the EU Court of Justice. All these new rules and judicial decisions can be relevant for international companies operating in the EU. Indeed, in addition to the daily update,...

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Online Sales Restrictions Remain a Hot Topic: UK CMA Issues Statement of Objections

On 9 June 2016, the UK’s Competition and Markets Authority (CMA) issued a statement of objections (SO) to Ping Europe Limited (Ping), a golf equipment manufacturer, alleging that Ping had breached EU and UK competition law by banning the sale of its golf clubs online. In the event that the CMA ultimately determines that Ping’s online resale ban is not justified, it will no doubt require that Ping cease such conduct and possibly levy a fine. Upon announcement of the issuance of the SO, the CMA stressed that: “[w]here traditional businesses operating through high street shops face intense competition from online sales, suppliers may be tempted to respond by introducing practices, like online sales bans, that can restrict such competition. The internet is an increasingly important distribution channel and retailers' ability to supply via this channel should not be unduly restricted". Furthermore, the CMA emphasised that an online sales ban may pose problems...

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