Argentina: new law gets final legislative approval
A new mandatory and suspensory regime has been approved and is expected to come into force next year. In addition, the combined domestic turnover threshold increased on 24 May, from ARS 200 million (approx. USD 7 million) to ARS 2 billion (approx. USD 73 million). The exemption thresholds have also increased, meaning that no notification is required if the following conditions are cumulatively met:
(i) value of the assets being transferred in Argentina does not exceed ARS 400 million; and
(ii) price of the transaction in Argentina does not exceed ARS 400 million; and
(iii) buyer's group has not entered into any other transaction in the same relevant market (a) in the previous 12 months, where value of assets transferred or the price paid exceeded ARS 400 million AND (b) in the previous 36 months where value of assets transferred or the price paid exceeded ARS 600 million.
Other pre-existing exemptions continue to apply and remain unchanged.
Belarus: new law in force from 2 August 2018
A new version of the Law on Countering Monopolistic Activity and Development of Competition was adopted earlier this year and will enter into force on 2 August. Revised notification thresholds will be in force from this date. Read our client alert on the changes here.
Canada: changed definition of 'affiliate'
In certain transactions, assets and revenues of 'affiliates' must be taken into account for the purposes of threshold calculations in Canada. The Competition Act 'affiliate' rules have now been amended. Although the prior definition of an 'affiliate' under the Competition Act addressed corporations under common control, it did not apply at all to trusts and did not apply fully to partnerships. Now the definition of 'affiliate' includes those entities, bringing them within the scope of threshold calculations.
Chile: first gun-jumping penalty imminent?
The first gun-jumping fine under the new Chilean regime may soon be imposed. Minerva's acquisition of JBS subsidiaries was filed on 14 July 2017 but consummated on 31 July 2017, prior to FNE approval. The transaction appears to have been structured as a carve-out to avoid the effects of the merger effecting the Chilean market. However, under Chilean law, a merger is considered to have taken place when there is a change of control on a lasting basis, which occurs irrespective of whether the companies entered into a carve out agreement or not. The parties may each be subject to a USD 1.9 million fine.
China: old failure to notify decisions and new merged authority
Enforcement decisions concerning two old deals were recently announced in China. Fines were imposed on the parties for failure to notify their respective joint ventures, despite the fact that the deals took place in 2009 and 2010. These cases came amidst a general increase in enforcement in China so far this year.
The merger of the existing three anti-monopoly agencies into a single centralised authority the "State Administration for Market Regulation" also recently took place. This means that 'MOFCOM' is no longer the body responsible for merger review.
EU: notable recent enforcement decisions
In April, the EC fined Altice EUR 124.5 million for implementing its acquisition of Portuguese telco PT Portugal before notifying or receiving approval. Altice notified the planned acquisition to the EC in February 2015 and the deal was conditionally cleared two months later. In May 2017, the EC expressed concerns that Altice had implemented the deal through an earlier purchase agreement. In the April decision, the EC stated that certain provisions of the purchase agreement, such as veto rights, had resulted in Altice acquiring the legal right to exercise decisive influence over PT Portugal, in advance of approval. The decision is being appealed by Altice.
In May, the EU Court of Justice ruled that EY did not break merger control rules during its 2014 takeover of KPMG Denmark. The Court held that KPMG Denmark serving notice to terminate its cooperation agreement with KPMG International could not be regarded as constituting the completion of a merger. This follows the non-binding AG opinion issued in January (as covered in our last Merger Control Minute).
Finland: proposed amendments
Amendments to the Finnish Competition Act were proposed on 24 May. They propose granting the Finnish competition authority additional powers, such as wider discretion on which cases it prioritises, as well as adjusting merger control review periods. Merger control deadlines will be calculated in working days instead of calendar days. The maximum review period for Phase I investigations will be changed from one calendar month to 23 working days. Possible Phase II investigations must be carried out in an additional 69 working days instead of three calendar months. The amendments are expected to be enacted soon.
France: proposed changes to merger control regime
A consultation on proposed changes to the French merger control regime was launched in October. An update and a further consultation were announced on 7 June. Amended threshold values and the introduction of a value of transaction threshold have been ruled out for now but the FCA is considering widening the application of the simplified procedure and streamlining that process. The Authority has also launched a consultation on the introduction of an ex-post review power for certain transactions which will run until 28 September 2018.
Philippines: PCC voids another completed transaction
The PCC imposed a PhP 22.8 million (approx. EUR 366,000) fine and voided Chelsea Logistics' completed acquisition of rival Trans-Asia. This is the second time in which the PCC has voided a deal in these circumstances. Interestingly, the PCC's voiding of the completed merger led the PCC to approve Chelsea Logistics' acquisition of another company because the unwinding of the first deal eliminated the competition concerns identified in the second one.
Singapore: ride-hailing parties facing fines
The CCCS has published a Proposed Infringement Decision stating that a recent high-profile ride hailing segment transaction led to a substantial lessening of competition in Singapore. The regulator has proposed remedies, as well as a total fine of SGD 13 million (approx. USD 9.5 million) for the early implementation of the deal. The regulator has never imposed financial penalties before. The decision is being challenged.
UK: national security thresholds
New thresholds applying to UK mergers involving a "Relevant Enterprise" (active in the development or production of items for military or military and civilian use, quantum technology and multi-purpose computing hardware) came into force on 11 June 2018. You can read our client alert for further details on the amendments. The UK merger control thresholds remain unchanged for mergers in which the target is not a Relevant Enterprise.
New guidance in Austria, Germany and India
The Austrian and German authorities have published joint guidelines on the application of the countries' respective value of transaction thresholds. This follows a recent consultation process. The guidance is available in to read in German here.
The Competition Commission of India has launched an online guidance system for M&A. It is accessible here. The system allows stakeholders to access advice on whether their transaction is notifiable to the CCI.