our insights into antitrust trends

Our Insights into Antitrust Trends

2 Clifford Chance Our Insights into Antitrust Trends

Contents

Introduction 3

1 Trends overview 4 The proliferation of global merger control 5 Merger control: the new global order 6 Antitrust enforcement: on the up across the globe 7 The spread of private enforcement 8

2 Merger control risks 9 Merger control: process risk 10 Protecting the national interest 11 Risk-shifting 12 Deal structuring for timely closing 13

3 Key regions 14 Europe 15 United States 17 Asia Pacific 18 Africa and the Middle East 22

4 Sector spotlight 24 Financial Services 25 Information Technology 27 Pharmaceuticals 28

November 2013

3Clifford Chance Our Insights into Antitrust Trends

Introduction

Getting antitrust right has never mattered more. For both companies and individuals, the consequences of breaching antitrust rules are potentially eye watering. In an M&A context, a well-executed merger control strategy can be the difference between success or failure for a transaction.

In this inaugural publication, we look at the current key antitrust trends, focusing not only on established regions for antitrust such as the EU and the US but also growth regions such as Asia Pacific, Africa and the Middle East – looking at both merger control and antitrust enforcement. We highlight the main merger control risks for businesses contemplating an M&A transaction and consider practical ways of avoiding or minimising those risks. We also shine a spotlight on three sectors that have experienced particular scrutiny from the authorities of late: financial services, information technology and pharmaceuticals.

The world of merger control has changed almost beyond recognition compared to a decade or so ago. Today, transactions are subject not only to a growing number of merger control reviews around the world but also a rising number of foreign investment and national security reviews. This increases the risk of delay to deals and also the possibility of divergent outcomes.

Beyond merger control, antitrust enforcement is on the up globally. Fining levels are rising and enforcement is becoming ever more global as authorities increasingly cooperate and coordinate with each other and new authorities are established.

Visit our online resource: The Clifford Chance Global M&A Toolkit www.cliffordchance.com/GlobalM&AToolkit

Thomas Vinje Chairman of the Global Antitrust Practice

Oliver Bretz Head of the Global Antitrust Practice


Trends overview

1n Increasing numbers of merger

control regimes

n New regimes such as China growing in importance

n Increasing globalization of antitrust enforcement

n More antitrust enforcement through litigation


The proliferation of global merger controlInternational M&A transactions are subject to an ever-increasing number of merger control, foreign investment and national security reviews. Procedural and substantive divergences create risks for deal execution and value realisation. More than 100 jurisdictions worldwide now have merger control laws. Here are some recent examples of new or reformed antitrust regimes.

United Kingdom

n In April 2014, the UK will have a new regulator, the Competition and Markets Authority, with sweeping new powers to freeze integration by imposing hold separate obligations

Germany

n The German merger control law was significantly changed on 30 June 2013

n While the turnover thresholds remain low, the presumption for market dominance was increased to 40%

n The German FCO now has the right to stop the clock in Phase II proceedings if the parties fail to provide data in time

Brazil

n A new suspensory regime came into force in May 2012

n Acquisitions of as little as 5% shareholding may now be notifiable

n Market share filing thresholds have been abolished; turnover thresholds still require the turnover of the seller to be taken into account

n The maximum period of review is unusually long (330 days), but most simple transactions are processed relatively quickly (4-6 weeks)

India

n India’s merger control regime came into force in June 2011. Filings are mandatory and suspensory

n The thresholds are complex. A de minimis exception applies where the target does not have sufficient assets or turnover in India. However, for asset sales, seller’s turnover and assets are taken into account

n Only two cases have been subject to remedies, the rest have been cleared unconditionally

n Fines have already been imposed for late notification

COMESA

n Merger control regime came into force in the Common Market for Eastern and Southern Africa in January 2013

n A supranational merger control regime, covering 19 African countries. Only eight of these have implemented a national merger control regime

United Arab Emirates

n A merger control regime entered into force in February 2013

National merger control regimes introduced since 2000

Existing national merger control regimes


Merger control: the new global orderChina now reviews almost as many deals as the EU. US and EU filing volumes are still far lower than their 2007 peak.

n Since China introduced a merger control regime in 2008, over 650 cases have been reviewed

n Although the US antitrust agencies review many more deals than their EU and Chinese counterparts, the filing volumes are still well below pre-financial crisis levels

n Enforcement rates dropped in major jurisdictions post-financial crisis – likely reflecting dealmakers’ reduced appetite for antitrust risk, rather than increased permissiveness of agencies. Recent years appear to show appetite for risk returning

n The EU has been consistently the most interventionist of the three major regimes, with two prohibition decisions so far in 2013 (Ryanair/Aer Lingus and UPS/TNT)

n China has so far blocked only one deal, but has imposed remedies in a further 20 cases

n US enforcement rates are on an upward turn, with the focus being on high value transactions

EU US China

Enforcement rate: prohibitions, remedies and withdrawals as % of filings

12%

10%

2007 2008 2009 2010 2011 2012 2013

8%

6%

4%

2%

0%

Increasing convergence or divergence? “Post GE/Honeywell, the focus was on the divergent approach of the US and EU. We are now seeing increased transatlantic convergence but divergence elsewhere – for example, Google/Motorola Mobility and Seagate/Samsung were cleared in US and EU but required remedies in China.”

Alex Nourry, Partner, London

EU US China Figures include full-year forecast for 2013

Volume of filings

2500

2007 2008 2009 2010 2011 2012 2013

1500

250

500

0


Antitrust enforcement and cooperation on the up across the globe

Record breaking fines

China: n China’s fining record has been broken three times in 2013 (LCD Panels, Chinese Liquor

and Infant Formula) – a total of around 1.5 billion yuan

US: n In 2013, the DoJ has continued to obtain increased fines with over $1.25 billion in criminal

fines obtained in the first 9 months alone

EU: n Enforcement in the EU is “lumpy” reflecting a relatively low number of cases attracting

high fines (€1.88 billion in 2012 vs. €142 million so far in 2013; although a number of cases currently in the pipeline.)

EU US China

Fines (€ million)

2500

3000

3500

2000

2005 2006 2007 2008 2009 2010 2011 2012 2013

1500

1000

500

0

Antitrust enforcement fines for cartel activity

Increasing international cooperationn China has MoUs with authorities in the EU, US and Korea

n EU/Switzerland Cooperation Agreement (subject to ratification) allows exchange of confidential information without investigated party’s consent and may serve as model for other jurisdictions

n In last 12 months, US cooperation agreements with India and Ireland have included a model waiver of confidential information for coordinated investigations

n Coordinated investigations becoming more common – simultaneous dawn raids in automotive parts (EU, US, Japan) and refrigeration equipment (EU, US, Brazil)

Increased criminalisation of cartel or bid rigging offensen Jurisdictions with a criminal cartel offence now include: Australia, Austria, Brazil, Cyprus,

Denmark, France, Germany, Hong Kong, Indonesia, Italy, Japan, Mexico, Norway, New Zealand, Romania, Russia, South Korea, Switzerland, UK and US

Proliferation of leniency regimes n Leniency programs now almost globally available

n Approximately 75% of all criminal cartel cases initiated by the US DoJ since 2005 were commenced as a result of information received from a leniency applicant

“Increasing cooperation between antitrust agencies and increasing numbers of leniency programs have contributed to an increase in antitrust enforcement.”

Patrick Hubert, Partner, Paris


The spread of private enforcementThe US and the UK remain the most active jurisdictions in terms of antitrust litigation. However, private enforcement has been steadily increasing in other regions and this trend looks set to continue.

EU – long-awaited proposed Directive on antitrust damages claims

n The proposed Directive seeks to coordinate public and private enforcement of competition law and ensure effective compensation for victims of antitrust infringements. The proposals include the introduction of disclosure rules in antitrust claims while protecting leniency corporate statements from disclosure in damages claims

n A draft Recommendation published by the European Commission (EC) urges all Member States to have collective redress mechanisms for both injunctive relief and compensation caused by violation of EU rights

China – private litigation on the increase but few successful claims

n China has seen a steady up-tick in private enforcement, with more than 100 cases filed in 2012. To date, all private actions have been stand-alone claims, with the majority related to abuse of dominance

n However, most litigation has either failed or been withdrawn, with plaintiffs encountering difficulties in establishing their case. For example, Qihoo 360’s claim against Tencent was rejected on the grounds that it had failed to prove Tencent’s instant messaging platform held a dominant position

n Individual courts enjoy considerable discretion in their approach to antitrust litigation. This raises the prospect of diverging outcomes in relation to the same anti-competitive conduct in different courts as well as potential inconsistencies in approach between private and public enforcement

Rest of Asia – little consistency in approach

Different approaches to private enforcement across Asia mean this can be difficult territory for companies to navigate. Some jurisdictions, like Japan, allow stand-alone private actions. Others such as Singapore and Hong Kong under its new competition law restrict private claims to follow-on actions. There are also differences in the remedies that private litigants can claim and the recognition of legal privilege

Class actions are taking off in some jurisdictions – in South Korea for example, at least 1,500 consumers have joined a class-action suit following fines totalling 365.3bn won (US$315 million) imposed on seven life insurance companies by the Korea Fair Trade Commission in 2011 for price fixing

In Australia, follow on class actions are important matters to consider in relation to cartel leniency applications, particularly given the existence of litigation funders

9Clifford Chance Our Insights into Anti-trust Trends

Merger control risks

2n Merger control – process risk

n Protecting the national interest

n Deal structuring for timely closing

n Risk-shifting


Merger control – process risk

n Proliferation of merger regimes • Imposing significant financial/time costs in terms of merger planning • Different standards and unclear procedures

n Never underestimate timeframes • Information demands by regulators increasing, resulting in longer review processes and

extended pre-notification – MOFCOM’s Glencore/Xstrata review took 12 months

n Managing stakeholders • Manage the documents your team (and advisers) produce or statements they make • EU and UK authorities introducing increased disclosure requirements

n Remedies: often a critical part of the process • Failure to produce a convincing buyer can be fatal (UPS/TNT) • Some jurisdictions (such as UK) routinely insist on an up-front buyer, so extending

antitrust risk • MOFCOM has imposed long-term hold separate remedies in several cases (Marubeni/

Gavilon, Western Digital/Hitachi) – requiring buyer to ring fence part of target’s business which sells into China

Jurisdiction Risks of failing to file – gun jumping recent developments

EU Electrabel fined €20 million for failure to file acquisition of de facto control

China New maximum fines of RMB 500,000 (US$ 80,000) and new “whistle blowing” mechanism for unnotified transactions

Germany Since 2008 the FCO has imposed total fines of approximately €10 million

France Fine of €392,000 on supermarket group Colruyt in May 2012 for failure to notify a 2009 acquisition

Norway Four companies received penalties totalling 1.3 million kroner (€170,000) in July 2012

South Korea Doubled potential fines to 15-40m won (US$13-34,000); fined 21 companies for failure to notify in July 2012

India Fine of Rs 50 lakh (US$80,000) in August 2013 for late filing

Ukraine Antimonopoly Committee announced it intends to impose maximum fines permissible (5% worldwide turnover)

Indonesia KPPU issued first fine for failure to notify in May 2012 of IDR 25 billion (US$ 2.6 million)

Str

ateg

ic c

ons

ider

atio

ns Preparation and consistency

nEnsureaconsistentnarrativeacrossjurisdictions

nPrepareearly–regimesmayrequestpre-notification(suchasEU)and/ormoreeconomic/dataintensiveinput

Timing

nHaveatimingstrategy–considerifbeneficialtofileinonejurisdictionfirstordoparallelreview

nBedisciplinedontiminganddeadlines

Wider context

nUnderstandhowcountriesmayexercisesovereigntyoverdeals

nMoreregimesaretakingnon-competitionfactorsintoaccount(via‘publicinterest’and‘nationalsecurity’testsorothermeans)

nEngagepublic/governmentrelationsteamswherenecessary


USA

n CFIUS regime – broad scope and lengthy timetable

n Particular concerns around “China Inc.”

• two Huawei transactions blocked in 2011

• Chinese acquirer of Oregon windfarm forced to unwind deal due to proximity to military base

n CFIUS annual report refers to foreign governments’ “coordinated strategy” to acquire critical US technology

n BUT recent examples of clearance – A123/Wanxiang, CNOOC/Nexen and Shuanghui/Smithfield

Russia

n Russia has a separate regime for foreign investments in so called “strategic entities” (broadly, entities performing designated activities in the fields of natural resources, defence, media, pharmaceuticals and monopolies)

n The procedure can be lengthy and burdensome, with approval granted by a Governmental Committee headed by the Prime Minister

Australia

n Foreign investment filing regime more rigorous than voluntary competition regime – filings are suspensory and mandatory

n Any direct or indirect sovereign interest of 15% or more is notifiable, regardless of value

China

n Merger control reviews consider the effect of a deal on national economic development

n Foreign investments also subject to reviews on the basis of national security and sector-specific considerations

n Conditions can be imposed even where market share is low – <20% in Glencore/Xstrata and Marubeni/Gavilon

Brazil

n Restrictions on acquisitions of rural property may apply even for indirect investment

EU

n Most investment restrictions operate nationally

n EU law limits possibilities for national governments to object to large deals on non-competition grounds

n Foreign investments in certain energy infrastructure subject to a security of supply test

South Africa

n Public interest test requires consideration of issues such as unemployment and competitiveness of firms owned by historically disadvantaged persons

n Conditions imposed on Glencore/Xstrata included a cap on permitted retrenchments and provision of training

Canada

n Mandatory filing for all foreign investments over certain thresholds

n Tougher requirements for State-controlled buyers introduced in December 2012, including more scrutiny of corporate governance and reporting and whether Canadian target will operate on a commercial basis

Protecting the national interest Protectionism is increasing. Acquisitions by foreign State-owned entities are facing intense scrutiny in North America. Protectionism ranges from prohibitions of foreign ownership of rural land to the application of merger control rules.


Risk-shiftingA deal that is conditional on antitrust clearance effectively leaves antitrust risk with the seller because if approval is not obtained the deal falls away. We are seeing a range of innovative contractual and structural solutions that mitigate antitrust risk or shift it to the buyer.

Risk shifting mechanisms

Impact on antitrust risk Deal examples

Unconditional closing

Shifts all risk to buyer, as transaction must close regardless of whether conditions obtained; not usually possible in jurisdictons that enforce standstill obligations

Ryanair/Aer Lingus minority stake

Hell or high water Shifts risk to buyer, as buyer is required to use its best efforts to obtain clearances, including offering divestments and remedies; risk of outright ban by authorities remains

First Niagra/HSBC

Reverse break fee Buyer compensates seller if deal does not close by long stop date as a result of antitrust issues. Break fee/compensation may be capped by national regulation

AT&T/T-Mobile

Take or pay Shifts financial risk to the buyer as buyer pays seller full price for the target, even if clearances not obtained by the longstop date. Needs to be structured so as to avoid gun-jumping concerns

EMI/Universal

Drop dead dates

n Ifthereisamaterialantitrustrisk,timingwilldependonjurisdictionswherethetransactionhastobefiled

n Controllingtimingcanallowpartiestonegotiateremedies,butterminatethetransactionbeforeitischallenged

n Oftenlinkedwithrequirementtofilewithinasettimeframe

Litigation provisions

n UsedinsomejurisdictionssuchasUSwhereagenciesmustopposedealsthroughcourts–EUtimeframesmakethisimpracticalinEurope

Some other considerations

n Informationexchangeduringduediligenceprocess

n Useofconfidentialityagreements/cleanteams

n Provisionsregulatingpre-completionconduct

n Needtobalancebuyer’sinteresttoprotectvalueagainstgun-jumpingconcerns


Deal structuring for timely closing

n Third party (normally a bank) acquires target while ultimate buyer secures antitrust approval. If ultimate buyer not approved, third party sells target to another buyer. Ultimate buyer typically indemnifies third party against any losses during ownership or upon resale

n Allows trade buyers to compete in auctions on equal footing with non-trade buyers and allows sellers to make risk-free sale

n But the EC may look through structure to ultimate buyer from the outset

n Allocation of economic risk is key – for third party to be treated as real buyer, it has to assume real risk

n Alternative backstop structure may get around warehousing problem and offers sellers deal certainty, but does not address timing concerns

• Real buyer contracts directly with seller to buy target

• Backstop buyer (bank) steps in only if antitrust approval not secured

• Total return swap transfers economic risk from bank to buyer

n Trialled in Liberty Global/Kabel BW but backstop not ultimately required

n Usually unlawful for most major jurisdictions (EU, US and China) even if hold separate arrangements in place

n However, in some jurisdictions (such as South Africa) it may be permissible to complete a share or asset transfer in another jurisdiction provided the local businesses are held separate pending outcome of the review

Warehousing

Backstop

Carve-out and close

“With careful planning, trade buyers can sometimes structure their deal to delay or divert more in-depth review processes, thereby allowing them to compete on an equal footing with non-trade buyers in the context of a sales auction process.”

Marc Besen, Partner, Düsseldorf and Brussels


Key regions

3 n Europe

n United States

n Asia Pacific

n Africa and the Middle East


EUROPE

EU merger control: more flexibility?

Are Phase II investigations on the wane?n While the number of initiated Phase II cases increased between 2010 and 2012 (from 4 to 10)

there have been only 4 so far in 2013

n The increase in prohibition decisions in recent years (4 in the past 3 years, following a period between 2008 and 2010 when there were none) reflects the difficulty in reaching satisfactory remedies in cases where the competition effects are significant and pervasive

n Nevertheless, the current lower number of Phase II cases may reflect a greater willingness by the EC to resolve cases at Phase I through the use of remedies

Procedural enhancements – good news for business?The EC is considering simplifying its filing regime by increasing market share thresholds below which simplified procedure applies (20% for horizontal overlaps and 30% for vertical links); but proposed simplified form requires more information. The EC is also considering streamlining the system of referrals between itself and national authorities

Rise of the counterfactual?In two recent cases, EC cleared on basis that the merger would have led to no worse an outcome than absent the merger. In Shell/Nynas, the EC accepted that the seller would have closed the target business absent the transaction, so cleared its sale to a close rival

Watch out – minority shareholdings may soon be notifiableThe EC is considering closing the “enforcement gap” regarding acquisitions of minority shareholdings by amending the EU Merger Regulation to catch non-controlling minority stakes. The proposal comes at the same time as the UK Competition Commission requiring Ryanair to reduce its minority shareholding in Aer Lingus from 29.8% to 5%

n Phase II initiated n Phase II unconditional clearances n Phase II conditional clearance n Phase II prohibition

n Phase II abandoned Filings

16 450

400

350

300

250

200

150

0

50

100

14

2005 2006 2007 2008 2009 2010 2011 2012 2013

12

10

8

6

4

2

0

“A greater willingness to resolve issues at Phase I, an increase in the scope of the simplified procedure and a pragmatic approach to the counterfactual are all encouraging signs.”

Miguel Odriozola, Partner, Madrid and Brussels


EUROPE

EU antitrust enforcement: targeted approach? The EC has continued to focus its enforcement efforts on cartels and has been managing its resources through an increased use of commitment and settlement procedures.

Cartels: still a key focus

In 2012 and the year to 30 September 2013, the EC issued decisions in 6 cases involving 42 undertakings. The EC has also issued 5 Statements of Objections in cartel cases and conducted 9 dawn raids.

The EC has also made increasing use of its settlement procedure – which incentivises companies to admit the infringement in exchange for a lower fine and a shorter decision. 7 cases have so far settled with more expected.

Beyond cartels, the IT sector has been a priority

The EC also devoted significant resource to various abuse of dominance cases in the technology sector, in particular the high-profile Google “search” case and Samsung “essential patent” case as well as a number of non-cartel anticompetitive agreement cases across several sectors, including pharmaceuticals, online markets, airlines and energy.

Increasing use of commitments?

The EC has accepted commitments in a number of recent cases, including in relation to ebooks where book publishers and Apple agreed to terminate existing agency agreements that included most favored nation clauses and retail price restrictions. Unlike the settlement procedure, companies entering into a commitment decision are not required to admit to any infringement.

“The European Union remains one of the key antitrust enforcers in the world. Cartels remain a focus of enforcement and sanctioning with extremely high fines. We also see a lot of customers introducing follow-on damages claims – and we expect this to increase following the new legislative framework for private enforcement under discussion. Finally, the replacement of Vice-President Almunia towards the end of 2014 could be a catalyst for further change and a shift in focus.”

Johan Ysewyn, Partner, Brussels

Evolving dawn raid practice

Increasing IT focus: The EC’s dawn raid practice has evolved in parallel with technological developments. The EC now uses advanced methods for identifying and capturing data in electronic form (such as the use of built-in keyword search tools and forensic IT tools).

Recent court judgments have strengthened the EC’s hand in dawn raids, confirming:

n The EC’s ability to fine companies for obstruction/failing to cooperate fully – the General Court upheld the EC’s decision to increase KWS’s cartel fine by 10% for denying entry to dawn raid inspectors for 47 minutes pending arrival of external lawyers. The court said officials should have been able to enter the premises to serve the inspection notice and ensure no destruction of evidence or communication with other raided companies

n The EC’s broad powers of inspection – the General Court recently confirmed (in the Deutsche Bahn case) that the EC has authority to search exhaustively the content of offices or workbooks, even if there is no clear indication that they contain relevant material


UNITED STATES

Antitrust enforcement has continued to focus on financial institutions and the prosecution of non-US companies

Enforcement Trends

n With the RBS settlement in LIBOR, the DoJ issued its first Deferred Prosecution Agreement (DPA) (by which companies and individuals agree to take specified actions in exchange for charges being dismissed or not filed), indicating a trend toward alignment of the Antitrust Division’s prosecution with that of the rest of the DoJ, which has been a frequent employer of DPAs

n While the number of criminal investigations is trending downward, the number of criminal cases filed is increasing, meaning the DoJ is pursuing more convictions per case than previously

n 2013 is likely to see some type of movement toward clarifying the FTC’s Section 5 (unfair methods of competition) authority. Both Commissioners Olhausen and Wright have been outspoken on the issue

n The FTC is undertaking a review of loyalty discounts and is seeking an appropriate case in which to test its theories

n Where the US antitrust authorities deem a significant absence of compliance, they may seek to impose a third party, at the company’s expense, to monitor the company’s efforts to undertake compliance training and implement a compliance policy

Merger enforcement has remained steady

n Marginally fewer cases were notified in FY 2012 than the previous year, but the proportion of cases meriting a more detailed second request remained broadly constant at 3-4%

n The trend towards the use of a more effects-based analysis continues, with the FTC moving away from a more traditional market share based approach

n The DoJ has recently emphasized its willingness to examine consummated mergers and mergers not meeting the filing thresholds. It has also been more vigorous in pursuing failure to notify – with two cases in 2012 and two more in the first half of 2013

n Recent HSR reform brings certain pharmaceutical patent transfers within the scope of merger control

US staff changes expected to result in increased enforcement

n Bill Baer took over the Antitrust Division and Debbie Feinstein took over the FTC’s Bureau of Competition

n Both are likely to bring a pragmatic, but aggressive approach to enforcement to their respective agencies

n The appointment of Edith Ramirez as Chairperson of the FTC is likely to yield an increased focus on consumer protection

“Antitrust activity in the US continues to trend upward. Recent staff changes and a continued emphasis on investigations into financial institutions signal that this trend is unlikely to change. As the economy rebounds and M&A activity returns, we will also see increased merger control activity.”

Tim Cornell, Counsel, Washington D.C.


ASIA PACIFIC

Growing antitrust enforcement across the region

Vietnam

Vietnam’s Competition Law prohibits cartel conduct if the cartel concerns at least 30 percent of the relevant market. In 2010, 19 insurance companies were fined a total of 0.025 percent of their total turnover. To date, there is no leniency policy.

A major ongoing investigation in Vietnam relates the cinema market. Six Vietnamese cinema operators have accused Megastar of abusing its market dominance by imposing a margin squeeze.

Thailand

The Thai Competition Act came into force in April 1999 and is enforced by the Trade Competition Commission (TCC), chaired by the Minister of Commerce. The TCC has issued guidelines concerning cartels and abuse of a dominant position although there are very few reported cases. No detailed regulation on merger control has yet been issued.

Malaysia

The Malaysia Competition Commission (MyCC) has received 40 complaints since its inception in January 2012. As of September 2013, MyCC was working on 26 ongoing cases, while another 14 had been dismissed.

MyCC recently imposed a proposed fine of around US$ 6m on Malaysia Airlines and AirAsia for entering into an agreement for market allocation.

Japan

The Japanese Fair Trade Commission (JFTC) is a well resourced and active regulator and is a regular participant in regional capacity building initiatives.

“2012 marked a significant year for Japanese cartel enforcement with the largest fine ever imposed on an individual company – JPY 9.6 billion (USD 97 million) to Yazaki, a participant in the Wire Harness cartel.”

Miho Mizuguchi, Partner, Tokyo

Singapore

“Singapore has a well-respected competition authority in the Competition Commission of Singapore that is astutely tackling competition issues in Singapore and is a good model for the region. Recent activity included sanctioning two ferry operators for exchanging competitively sensitive information, including the prices of tickets sold to travel agencies.”

Harpreet Singh, Partner, Singapore

Australia

“Increasing trade between Australia and the rest of Asia makes it essential to coordinate Australian foreign investment filings with the merger control notifications in China and other Asian countries. To service clients in this environment you need to provide a well connected and seamless network which is in front of the wave.”

Dave Poddar, Partner, Sydney18 Clifford Chance Our Insights into Antitrust Trends


China

“2013 has seen antitrust enforcement in Asia really take off with China’s fining record being broken three times this year alone.”

Richard Blewett, London and Beijing

Hong Kong

Hong Kong’s competition policy is currently focused on the telecoms and broadcasting sectors.

“A new cross-sector competition law is expected to come into force by early 2015. Given that the new law does not contain a merger control regime, it can be expected there will be a heavy focus on enforcement actions (which must be taken by way of litigation in the High Court) and follow-on litigation.”

Stephen Crosswell, Consultant, Hong Kong

Taiwan

The Taiwan Fair Trade Commission (TFTC) has been active since 1992. In March 2011, the TFTC imposed fines totaling NT$31 million (US$1 million) on 31 distributors of tobacco for fixing the price of cigarettes.

Philippines

There remains no dedicated, economy-wide competition authority in the Philippines. However, general criminal and civil laws, and certain industry-specific laws, outlaw cartel conduct and proposed antitrust laws have been debated in Congress.

Indonesia

Indonesian competition law is enforced by the Supervisory Commission for Business Competition (KPPU), which also has powers to undertake market studies and review government policies to determine whether they are consistent with fair competition.

The KPPU is active in enforcement with a consistently high volume of reported cases each year. A large number of these relate to bid rigging, but a significant portion also concern cartels, abuse of dominance and mergers. A recent example is the announced probe of the country’s soybean market.

ASIA PACIFIC

South Korea

The Korean Fair Trade Commission (KFTC) is a highly active regulator, accounting for a significant volume of the enforcement action in Asia. Of the 27 detected cartels operating within Asia in 1990-2007, 15 were investigated by the KFTC.


ASIA PACIFIC

China’s merger regime is now indisputably one of the big three along with the EU and the US, although concerns persist over timing and predictability:

n The review process is slow and cases routinely go into Phase II or even have to be refiled

n Non-competition factors play a role as MOFCOM is required to take into account a transaction’s impact on national economic development

n The intervention threshold is low – around 20% market share in the recent Glencore/Xstrata case

This year has also really seen Chinese antitrust enforcement take off with a number of high profile cases brought against domestic and international businesses:

n In January 2013, the National Development and Reform Commission (NDRC) reported that it had investigated a total of 49 price-related cases since the enactment of China’s Anti-Monopoly Law. The investigations covered a broad range of industries, including pharmaceuticals, paper-making, LCD panels, cement, insurance and shipping

n In December 2012, the State Administration for Industry and Commerce (SAIC) reported that it commenced investigations in at least 17 cases. The investigations covered a similar broad range of industries, including construction, gas, tourism, electronics and used cars

n Recent press reports suggest that investigations are likely in the IT and retail banking sectors

Spotlight on China – future trends

n Initiatives to shorten MOFCOM’s review period are being examined. A simplified procedure with clear and predictable parameters will facilitate review processes. In piloting the new procedure, MOFCOM has suggested around 50% of cases were cleared within 30 days

n Increasing consolidation globally may lead to more cases giving rise to concerns, including in China. This may lead to increasing levels of intervention in sensitive sectors, and increasing reliance on national economic development as a basis for intervention

n More procedural guidance on antitrust enforcement is expected. Chinese antitrust investigations typically take only a few months (two months in the Chinese liquor case) compared to years in Europe. This can place companies under severe pressure

n Increasing sophistication of decision-making is expected. This is likely to lead to reliance on robust economic analyses in notifications

China has cemented its position as a key merger control regime and is now extending its antitrust enforcement

“China’s merger regime continues to pose unique challenges. In particular, remedies need to be tailored to the specific requirements of the Chinese market.”

Emma Davies, Partner, Hong Kong and Shanghai


ASIA PACIFIC

AustraliaThe incoming new Australian Government is preparing a “root and branch” review of the Competition and Consumer Act 2010 (CCA).

Merger control – guidelines released

In late September 2013, the Australian Competition and Consumer Commission (ACCC) issued its revised Merger Process Guidelines. This has highlighted the increased length of time taken in reviewing mergers in Australia, particularly those in industry sectors such as grocery, petrol and food. For companies engaged in M&A in Australia it emphasizes the importance of being well prepared for merger control matters so as to ensure a timely and focused review process.

Antitrust enforcement

The ACCC released its Compliance and Enforcement Policy in February 2013 and is refining it as the year progresses. The ACCC has indicated that it is currently prioritising its work on:

n competition and consumer issues in highly concentrated sectors, in particular in the supermarket and fuel sectors

n online competition and consumer issues, including conduct which may impede emerging competition between online traders or limit the ability of small businesses to compete online effectively

n credence claims (for example “organic”), which have the potential to have a significant impact on consumers and therefore the competitive process if those claims are inaccurate and disadvantage a competitor

n misleading carbon pricing representations

Interaction of competition regulation, foreign investment regulation and other competition regimes in Asia

As a significant exporter of mineral and agricultural commodities as well as energy (LNG) to Asia, the interaction of Australia’s merger regime with other antitrust law regimes in the Asia-Pacific region is increasing. This interaction is increasingly important to companies and their advisers, due to the growing number of antitrust regimes in Asia.

Separately, inbound investments by foreign persons over certain thresholds are subject to mandatory review by the Foreign Investment Review Board (FIRB) and are assessed against a foreign interest test. The interaction between the ACCC and FIRB is an important consideration to take into account in transaction planning.

Spotlight on Archer Daniels Midland/GrainCorp

n On 26 April 2013, US food giant Archer Daniels Midland (ADM) proposed a A$3.0 billion takeover of GrainCorp, Australia’s only independent listed grain handler

n There has been clearance of the ADM/GrainCorp takeover from the regulators in Europe, South Africa, Canada and Japan

n ADM is still working with regulators in Australia and China. In Australia, the ACCC considered the takeover and elected not to oppose it, but, as at November 2013, ADM is still waiting for foreign investment approval from FIRB and the Australian Treasurer

“It is important for businesses to carefully consider the terms of reference for the ‘root and branch’ review, especially with respect to any submissions they would like to make and how best to be prepared for any changes.”

Dave Poddar, Partner, Sydney


AFRICA AND THE MIDDLE EAST

Growing significance of antitrust in Africa and the Middle EastNew regimes, many with low (or non-existent) filing thresholds and long review periods, need to be factored into deal planning. Behavioral antitrust prohibitions also exist in a number of countries, but with varying levels of enforcement.

UAE

n New regime in February 2013 although several excluded sectors (such as telecoms, financial services, oil and gas, sea and air transport, electricity, water) and no implementing regulations

Zambia

n In August 2013, the Authority carried out first-ever dawn raids since new competition law introduced in 2010

Namibia

n Large number of notifiable transactions as filing thresholds are very low

n In July 2013, the Competition Commission rejected a proposed merger between Puma Energy’s liquid petroleum gas business and rival Namox

South Africa

n Most developed/active regime in Africa. Recently acquired new powers to conduct market inquiries – private healthcare first sector to be reviewed

n Current focus on information exchange between competitors (minority investments or JVs) by prohibiting common staff/directors or imposing limits on information flows

High levels of enforcement

Competition regimes

No competition law or limited enforcement

“The UAE’s new regime outlines significant sanctions for failure to notify mergers. It is unclear whether the Ministry of Economy would assert authority in the absence of implementing regulations. No clear market practice has yet developed.”

Nigel Wellings, Partner, Dubai


AFRICA AND THE MIDDLE EAST

Common Market for Eastern and Southern Africa (COMESA)

Backgroundn Second supra-national merger control

regime in Africa – first to impose mandatory filing obligations

n 19 COMESA member states: Burundi; Comoros; Democratic Republic of the Congo; Djibouti; Egypt; Eritrea; Ethiopia; Kenya; Libya; Madagascar; Malawi; Mauritius; Rwanda; Seychelles; Sudan; Swaziland; Uganda; Zambia and Zimbabwe

n COMESA Competition Commission (CCC) based in Malawi, operational since January 2013

Filing obligationn Purchaser or target has sales in two or

more COMESA member states

n No turnover/asset thresholds

n Mandatory filing within 30 days of “decision to merge”

n Non-suspensory regime, but CCC considers closing prior to filing is prohibited

n Fines of up to 10% of parties’ COMESA turnover for failure to file

Key issuesn Lack of turnover/asset thresholds

n Limited local nexus requirement: purchaser OR target can satisfy the two member state test

n High filing fee: up to a maximum of US$ 500,000

n Long review period (maximum 120 days/ 6 months), but fast track procedure under consideration

n Exclusive jurisdiction? Ongoing disputes about whether parallel national filings required in some jurisdictions

n Public interest considerations may be taken into account

n Changes on the horizon? CCC is understood to be considering making enhancements to the regime but not expected before 2014

Conclusionsn New regime has major implications for

companies considering making acquisitions or disposals of assets in COMESA states

n Despite recognition of need for transparency, significant uncertainty remains as to interpretation of provisions and how merger regime will operate in practice


Sector spotlight

4n Financial Services

n Information Technology

n Pharmaceuticals


The financial services sector continues to be subject to numerous investigations by antitrust authorities across the globe

FINANCIAL SERVICES

Focus on the wholesale markets – tackling the perceived failings from the financial crisis

n Reflecting the international scope of markets, multiple investigations around the world, often with parallel regulatory investigations:

• Inter-bank interest rates: involving competition and financial regulators in Europe, the US, Switzerland, Canada, Singapore and Japan

• Competition and regulatory investigations in relation to oil pricing and benchmarks

• Previous “light touch” approach to financial regulation leading to series of new regulations – for example, EC proposed a Regulation on benchmark indices in financial instruments/contracts

n Tension between need for greater transparency to facilitate financial stability and risk of collusion arising from too much transparency

n Procedural differences in timing and approach of investigations: whereas EC typically concludes investigations with all parties at the same time, other authorities (such as US and Canada) have often announced settlement of cases with individual participants

Continuing interest in retail markets, particularly in EU countries

n Worldwide focus on payment cards: EC’s 2007 Mastercard prohibition decision currently on appeal to European Court of Justice, and ongoing/recent cases in EU, Australia, Mexico and Singapore, as well as the numerous ongoing class actions in US

n Retail banking and financial markets remain priority in many countries with particular focus on transparency, switching and high concentration levels – such as Sweden and the UK

n Antitrust investigations in Hungary (mortgage market – ongoing), Turkey (fined 12 banks in relation to deposits, credit and credit card services), Portugal (information exchange – ongoing), Germany (ATM prices for non-bank customers – ongoing), and EC (recently-closed case against the European Payments Council in relation to e-payments standardisation)

Access to data

n Focus on practices that may impede access to market data and decrease market transparency:

• Thomson Reuters (TR): EC concerned that TR was locking in customers by preventing them from using Reuters Instrument Codes (RICs) to access other providers’ data and switch. EC accepted commitments which allow TR customers to use RICs to switch provider

• Standard & Poor’s (S&P): EC concerned S&P’s fees for distribution of US International Securities Identification Numbers (ISINs) were unfairly high. EC accepted commitments to abolish some licensing fees and to cap others

• Credit Default Swaps: EC and US investigating whether some investment banks and Markit (and, in the EU, ISDA) colluded to prevent exchanges from entering the credit derivatives business between 2006 and 2009 by restricting the inputs allegedly necessary for such entry


FINANCIAL SERVICES

“Scrutiny from competition authorities and financial regulators has intensified since the financial crisis, and shows no signs of abating.”

Greg Olsen, Partner, London

EC has used State aid tool to re-shape Europe’s retail banking sector

EC recently updated its State aid framework for “rescued” banks. The framework aims to maintain financial stability, safeguard Europe’s internal market and protect the interests of taxpayers.

EC has worked on 67 bank restructurings – equivalent to around 25% of EU’s banking sector (in terms of assets). Many cases resulted in banks having to make significant disposals (such as major Lloyds Banking Group and RBS branch disposals – neither completed at this time) and agree to various behavioral commitments (such as price leadership bans, acquisition bans).

EC is also introducing a number of other measures to bring about the EU Banking Union and avoid further banking crises – CRD IV package, Basel III etc.

Mergers in financial services – consolidation in trading and post-trading services

Significant recent M&A activity in relation to clearing and exchange-trading due to prolonged downturn in trading volumes together with increased regulation following the financial crisis (Dodd-Frank Wall Street Reform Act in the US and the European Markets Infrastructure Regulation in EU).

Antitrust authorities have adopted a cautious approach when considering post-merger market positions and have not readily given the green light to notified deals.

Transaction Outcome

NYSE/Deutsche Börse (2011) Cleared in US (with conditions) and blocked in EU

BATS/Chi-X (2011) Cleared in UK

London Stock Exchange/LCH.Clearnet (2012) Cleared in UK, Portugal, Spain

Tokyo Stock Exchange/Osaka Securities Exchange (2012) Cleared in Japan (subject to conditions)

Maple Group/TMX (2012) Cleared in Canada (commitments to financial regulator deemed sufficient)

NYSE/ICE (2013) Cleared in US, EU

EMCF/EuroCCP (2013) Cleared in UK

BATS/Direct Edge (2013) Cleared in US


The information technology sector has been a real focus of antitrust authorities around the world, in particular in relation to the provision of internet services, digital distribution and patent enforcement. Tensions between the enforcement of IP rights and antitrust laws are set to continue for some time.

Global spotlight on information technology

n Focus of antitrust authorities around the world, in particular in Europe:

• EC’s cases against Intel, Microsoft and Google

• French, UK, Italian and German authorities have investigated Apple (in relation to distribution contracts, app store practices), Google, Oracle (database support), Amazon (pricing policies), and Expedia (agreements with hotels)

n Also interest from outside EU, including US (Apple’s ebook distribution practices and Google’s search practices), Japan (HP’s complaint against Oracle), India (Google), China (NDRC imposed its heaviest fine yet and behavioral commitments on six participants in LCD cartel)

n Focus on internet services likely to shift over time from home to mobile platforms

n EC also investigating Apple’s iphone distribution practices in Europe and Google’s distribution practices and related applications on its Android platform

Major themes in IT antitrust enforcement, particularly in Europe, include:

Safeguarding interoperability. Various cases since EC’s landmark Microsoft decision in 2004:

n EC investigating complaint by National Instruments against Mathworks for refusing to license software that would allow interoperability

n Cisco gave interoperability commitments to secure EC clearance for Tandberg acquisition in 2010; by contrast, EC cleared Microsoft/Skype unconditionally (currently under appeal by Cisco)

Use of IP rights in standardised technology. Several investigations including IPCOM, Rambus, Qualcomm, Samsung, Rockstar and Google. Highlights difficult relationship between IP rights and competition law. In Samsung, the EC alleged Samsung’s injunction request (which it was fully entitled to pursue under national IP law) constituted an abuse of dominance, on basis that the request could force its potential licensee, Apple, to accept higher-than FRAND royalties

IT cartel enforcement. Cartel enforcement on the rise since turn of the millennium, for example: LCD screens and DRAM chips (both EC decisions in 2010), and investigations ongoing in optical disc drives, batteries and smartcards

HP versus Oracle

HPcomplainedthatOracleshould“port”itsOracleDatabasetoHP’sItaniumplatform.ComplaintrejectedbyFrenchandSpanishauthoritiesandwithdrawnbeforeECbyHP.Suggestsauthoritiesnot(yet)willingtofindpositiveobligationonfirmswithmarketpowertodevelopsoftwareforbenefitofcompetitorssoastofacilitatecompetition.

“IT is hot from an enforcement perspective, and regulators are becoming increasingly sophisticated and knowledgeable about the sector. As the role of IT in our lives increases, so does the scrutiny from regulators across the globe. These regulators are proving willing to test the boundaries of traditional antitrust theories as applied to new technologies. Companies in the IT sector have to anticipate that to avoid costly, burdensome investigations, or even fines.”

Dieter Paemen, Counsel, Brussels

INFORMATION TECHNOLOGY


PHARMACEUTICALS

The US and EU antitrust authorities have continued their enforcement focus on “pay for delay” cases in the pharmaceutical sector with major decisions on this area in both jurisdictions in 2013. The EU’s Pharmaceutical Sector Inquiry, which ended nearly half a decade ago, continues to have far-reaching effects.

Patent litigation settlements

Ground-breaking decisions from US Supreme Court and EC into patent litigation settlements – but with a slight difference in approach

n US Supreme Court’s judgment in FTC v Actavis underscored need for an “effects” review when it held that agreements which include transfers of value to the generic company should be assessed on a rule of reason basis

n By contrast, EC treated Lundbeck’s agreement with several generic companies to delay entry of several generic antidepressant medicines as an antitrust infringement “by object”, with no need for an “effects” review

n EC continues to investigate a number of similar cases, including: the Servier case regarding Perindopril; Johnson & Johnson and Novartis regarding Fentanyl; and Cephalon and Teva regarding Modafinil

n In UK, Office of Fair Trading continues its investigation into GSK and a number of generic companies in connection with patent settlement arrangements concerning Paroxetine

Aftermath of the EU pharmaceutical sector inquiry

While the 2008/2009 Sector Inquiry was widely criticized, it nonetheless continues to have far-reaching effects, including on legislative proposals to introduce a single “European Patent” to replace national patents. It has also influenced EC proposals for legislative changes to pharmaceutical pricing and reimbursement

At EU level:

n Pharmaceutical cases continue to represent a significant proportion of all open EC antitrust cases, the majority being “pay for delay” cases

n EC continues its annual review of patent settlement agreements

n EC’s March 2012 proposal to revise the Transparency Directive includes some key components drawn from the Sector Inquiry results, going to pricing and reimbursement of pharmaceuticals

At the national level:

n In France, competition authority has begun investigation into the distribution and supply chain

n In Romania, second review of the sector in two years (2011 and 2013) opened

n Italy and Spain have open cases against Pfizer alleging attempts to exclude generic competition to Xalatan

What is pay for delay? – Payfordelayissaidtooccurifanoriginatorcompanysettlespatentlitigationwithageneric,andmakesatransferofvaluetothegenericinreturnforadelayedentrytothemarket.TheUSSupremeCourtdecisioninFTCvActavisqualifiesthetheorybynotingthatvaluetransferscannotalwaysandautomaticallybesaidtobeinreturnfordelayedentry,evenifdelayedentryalsoresults.

“We expect a continued antitrust focus on healthcare in both the US and EU, in particular in relation to patent settlements. Asia continues to build up antitrust capabilities - China in particular has had multiple investigations and merger decisions in the sector, although its current focus is in the context of other regulatory laws prohibiting bribery or other irregular business practices.”

Tony Reeves, Partner, Brussels


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Editors for this publication

Alastair Mordaunt T: +44 20 7000 4966 E: [email protected]

Richard Blewett T: +44 20 7000 8211 E: [email protected]


Global Antitrust Contacts

AustraliaDave PoddarT: +612 8922 8033 E: [email protected]

Diana ChangT: +612 8922 8003 E: [email protected]

BelgiumTony ReevesT: +32 2 533 5943 E: [email protected]

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ChinaEmma DaviesT: +86 21 2320 7215 E: [email protected]

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Czech RepublicAlex CookT: +420 222 555 212 E: [email protected]

FranceOliver BretzT: +33 1 4405 5216 E: [email protected]

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Michel PetiteT: +33 1 4405 5244 E: [email protected]

Emmanuel Durand T: +33 1 4405 5412 E: [email protected]

GermanyJoachim SchützeT: +49 21 143 555 547 E: [email protected]

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JapanMiho MizuguchiT: +81 3 5561 6640 E: [email protected]

The NetherlandsSteven VerschuurT: +31 20 711 9250 E: [email protected]

Frances DethmersT: +32 20 533 5043 E: [email protected]

PolandIwona TerleckaT: +48 22 429 9410 E: [email protected]

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ThailandAndrew MatthewsT: +66 2 401 8800 E: [email protected]

UkraineUlyana KhromyakT: +380 44390 2219 E: [email protected]

United Arab EmiratesNigel WellingsT: +971 4 362 0676 E: [email protected]

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Alastair MordauntT: +44 20 7006 4966 E: [email protected]

Elizabeth MoronyT: +44 20 7006 8128 E: [email protected]

Greg OlsenT: +44 20 7006 2327 E: [email protected]

Luke TolainiT: +44 20 7006 4666 E: [email protected]

United StatesTimothy CornellT: +1 202 912 5220 E: [email protected]

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