Merger Controls First Edition - J Sagar Associates

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Uría Menéndez Spain Jaime Folguera Crespo Tel: +34 91 5860 657 / Email: jfc@uria.com Jaime Folguera is based in Uría Menéndez’s Madrid office. He joined the firm as a partner in 1993, having been an EU legal affairs advisor to several Spanish government agencies. He currently heads the Competition Law Practice Area. His practice focuses on EU and Spanish competition law, and he is regularly asked to advise on EU and Spanish mergers in various sectors, such as banking and insurance, energy, telecommunications, pharmaceuticals and basic industries. He is often consulted on cases related to horizontal agreements, distribution, individual or collective abuse, and State aid. He is frequently involved in proceedings before the European Commission, the Spanish Competition Authority and other regulatory agencies, as well as before the European Union and Spanish courts. Borja Martínez Corral Tel: +34 91 5860 657 / Email: bom@uria.com Borja Martínez is a Principal Associate based in Uría Menéndez’s Madrid office. He joined the firm in 2002, having worked both in the Brussels and Madrid offices. He has worked on a wide variety of national and international antitrust infringement cases before the Spanish and EU authorities, and is regularly asked to advise on mergers, analyse agreements and strategic alliances and state aid issues. He regularly advises companies in a variety of sectors, among others: banking, telecommunications, media, building materials, pharmaceuticals and energy. Uría Menéndez Príncipe de Vergara, 187, Plaza de Rodrigo Uría, 28002 Madrid, Spain Tel: +34 91 5860 657 / Fax: +34 91 5860 753 / URL: http://www.uria.com Global Legal Insights Merger Control First Edition —176— © Published and reproduced with kind permission by Global Legal Group Ltd, London www.globallegalinsights.com
Switzerland Benoît Merkt & Marcel Meinhardt Lenz & Staehelin Overview of merger control activity during the last 12 months In 2010, 34 notifications were made to the Swiss Competition Commission (“Comco”). Although this number is higher than in 2009, when only 26 notifications were filed, it is lower than in 2008 (40 notifications) and in 2007 (45 notifications). However, these figures can, in our view, not be interpreted as showing a downward trend these past years, as the overall number of notifications that are made remains in the same range. In more detail, among the 34 notifications that were made in 2010, a large majority of cases (29) were cleared after the preliminary investigation (the so-called “Phase I”), which lasts at most for 1 month according to Article 32(1) of the Cartel Act (“CartA”). In these cases, the Comco did not decide to open an investigation but gave its clearance after a preliminary assessment of the notified concentration, considering that the latter did not create or strengthen a dominant position. The Comco decided in one case to open an investigation, i.e. to proceed to the so-called “Phase II” of the procedure in accordance to Article 33 CartA. During this second phase, the Comco usually organises hearings and sends out additional questionnaires to customers, suppliers and competitors in order to deepen the market research and analysis. The number of Phase II investigations opened by the Comco in 2010 is lower than in 2009 (5), in 2008 (3) and 2007 (5). New developments in jurisdictional assessment or procedure a) Jurisdictional assessment: Foreign-to-foreign concentrations are caught by Swiss merger control if the relevant thresholds are met. Two turnovers must be cumulatively met for the last business year prior to the concentration, namely: • the concerned undertakings must have reported an aggregate turnover of at least 2 billion Swiss francs worldwide or 500 million Swiss francs in Switzerland; and • at least two of the enterprises involved in the transaction must have reported individual turnovers in Switzerland of at least 100 million Swiss francs. Concerning corporate joint ventures, the 100 million Swiss francs threshold was, until recently, considered as met as soon as two of the participating undertakings (e.g. the two companies establishing the joint venture) had a turnover of at least such an amount, regardless of the question whether the joint venture to be established was going to be active in Switzerland or not. The Comco has, however, revised its practice in a 2010 decision1 , and considers now that the notification requirements do not apply, although both of the above mentioned thresholds are met, as long as the joint venture does not and will not in the future have any activity or turnover in Switzerland. b) Procedure: Considering the fact that only one notified concentration led to the opening of a Phase II investigation based on Article 33 CartA, and that a vast majority of cases have therefore been cleared after the Phase I preliminary investigation, there has been no significant development on procedural questions in 2010/2011. As a brief recall, the Swiss merger control procedure is divided into two distinct phases, which are very similar to the ones that apply in EU law: • During the Phase I (or preliminary) investigation, the Comco is required to notify, within one month of receipt of the complete notification, whether it intends to initiate an in-depth review of the concentration. If no communication is made within this period, the concentration can be completed. This first phase aims to verify whether there are indications of a dominant position being created or strengthened as a result of a concentration. In principle, the information provided in the notification is sufficient for the Comco to verify whether such a dominant position is created or strengthened. • The Comco may decide to open an in-depth review of the notified concentration, and therefore proceed to the Phase II investigation, if the preliminary review reveals signs that the concentration creates or reinforces a dominant position. In this case, the Comco must complete its investigation within a 4-month period as from the day after the Global Legal Insights Merger Control First Edition —177— © Published and reproduced with kind permission by Global Legal Group Ltd, London www.globallegalinsights.com
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CONTENTS Preface Nigel Parr & Cathe
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Australia Elizabeth Avery & Gina Ca
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Gilbert + Tobin Australia In the pa
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Gilbert + Tobin Australia sectors f
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Austria Astrid AblasserNeuhuber &
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pv Hügel Rechtsanwälte Austria Ke
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Brazil Eduardo Molan Gaban Machado
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Machado Associados, Advogados e Con
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Bulgaria Peter Petrov Boyanov & Co.
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Boyanov & Co. Bulgaria The CPC’s
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Boyanov & Co. Bulgaria Peter Petrov
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Osler, Hoskin & Harcourt LLP Canada
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China Susan Ning, Huang Jing & Yin
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King & Wood PRC Lawyers China subje
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King & Wood PRC Lawyers China Artic
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King & Wood PRC Lawyers China Susan
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Esguerra Barrera Arriaga Colombia i
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Esguerra Barrera Arriaga Colombia i
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Esguerra Barrera Arriaga Colombia
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Cyprus Thomas Keane & Christina Vge
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Chrysses Demetriades & Co. LLC Cypr
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Chrysses Demetriades & Co. LLC Cypr
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White & Case LLP Czech Republic b)
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White & Case LLP Czech Republic Ivo
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Accura Advokatpartnerselskab Denmar
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Accura Advokatpartnerselskab Denmar
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Attorneys at Law Borenius Estonia N
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Attorneys at Law Borenius Estonia A
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European Union Alec Burnside & Anne
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Cadwalader, Wickersham & Taft LLP E
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Finland Petteri MetsäTokila & Le
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Krogerus Attorneys Ltd Finland the
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Linklaters LLP France proves the EU
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Linklaters LLP France franchisees)
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Linklaters LLP France control. Whil
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Linklaters LLP France Pierre Zelenk
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Clifford Chance Germany Key industr
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Clifford Chance Germany Marc Besen
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Dryllerakis & Associates Greece was
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Szecskay Attorneys at Law Hungary t
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India Farhad Sorabjee J. Sagar Asso
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J. Sagar Associates India In the fa
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J. Sagar Associates India Approach
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Ireland Helen Kelly & Bonnie Costel
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Matheson Ormsby Prentice Ireland pr
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Matheson Ormsby Prentice Ireland fo
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Israel Dr. David E. Tadmor & Shai B
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Tadmor & Co. Israel The Antitrust L
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Tadmor & Co. Israel If such remedie
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Page 157 and 158: Portugal Mário Marques Mendes & Pe
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Page 163 and 164: Popovici Nițu & Asociații Romania
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Page 175 and 176: Spain Jaime Folguera Crespo & Borja
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Page 193 and 194: Ukraine Denis Lysenko & Mariya Nizh
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Page 211 and 212: USA J. Mark Gidley & George L. Paul
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Page 225 and 226: NOTES Global Legal Insights Merg
Page 227: Strategic partners: www.globallegal
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