Scrutiny of mergers and acquisitions continues

2021 has already seen a great deal of activity in the field of mergers and acquisitions. This blog summarises the developments in the review of mergers, acquisitions and joint ventures by the European Commission (the “Commission”) and the Netherlands Authority for Consumers and Markets (“ACM”). We also look ahead to what can be expected in this area in the coming months.

Merger control: the Commission

The concentration notifications currently being handled by the Commission can be found here. Currently, the Commission is conducting no fewer than 6 Phase II investigations and 45 Phase I investigations. The Commission is evidently continuing its scrutiny of concentrations also in 2021. The following concentrations are in any event already among the high-profile cases in 2021:

  • The Commission has opened a Phase II investigation into Illumina’s acquisition of GRAIL. The Commission started that investigation after a referral request under Article 22 of the Merger Regulation. The fact that the Commission is opening a Phase II investigation in this case demonstrates the seriousness of the Commission’s intention to review what is known as “killer acquisitions” on the basis of such referral requests. The Commission has until 29 November 2021 to take a decision.
  • The Commission has opened a Phase II investigation into Facebook’s acquisition of Kustomer. The Commission started that investigation also after a referral request under Article 22 of the Merger Regulation from competition authorities, including ACM. The Commission stated its concern that the acquisition would give Facebook too much power on the online advertising market.
  • The Commission conditionally approved the acquisition of Telekom Romania Communications by Orange. To address the Commissions concerns, Orange offered, among other things, to divest a certain minority stake that it would acquire as a result of the acquisition.
  • The Commission conditionally approved EssilorLuxottica’s acquisition of GrandVision after a lengthy investigation. The conditions include the sale to one or more competitors of 35 shops in Belgium, 174 shops in Italy and 142 shops in the Netherlands.

Merger control: ACM

In the Netherlands, significantly more (133) concentrations have been reported by the end of September 2021 than in the same period in 2020 (60). It would therefore appear that a large number of companies in the Netherlands are benefiting from the relaxation of the COVID-19 measures and have resumed their operations. A number of Dutch concentration cases that caught our attention in 2021 were the following:

  • The concentration between Yarden and DELA was conditionally approved by ACM. To ensure that sufficient alternatives remained in the funeral industry, in which Yarden and DELA operate, DELA agreed to sell seven crematoriums and two funeral centres to a competitor. ACM must first approve the buyers of those locations.
  • ACM again, and on the same conditions, approved Sanoma’s acquisition of Iddink. ACM had conditionally approved the concentration in 2019, but that decision was overturned in court in 2021. ACM then recommenced its investigation, changed the reasons given and approved the acquisition on the same conditions. At the same time, ACM decided to appeal the court’s decision before the Trade and Industry Appeals Tribunal (the “Tribunal”).
  • The Tribunal’s ruling on appeal regarding the merger of PostNL and Sandd may be a long time coming. The merger, prohibited by ACM in 2019 already, was given the go-ahead by the State Secretary of Economic Affairs in 2020, but that decision was overturned by the administrative court. The State then appealed. The Tribunal announced that it needed more time to rule on that appeal. It cannot be precluded that the Tribunal will present preliminary questions to the Court of Justice of the European Union.
  • The Amsterdam Court of Appeal found that Sunweb is not obligated to acquire Corendon. The two companies entered into a purchase agreement in 2019 and ACM approved that transaction. Sunweb subsequently refused to go ahead with the acquisition. Corendon demanded its implementation, was unsuccessful in preliminary relief proceedings, and filed an appeal. The Court of Appeal has now ruled, in accordance with the judgment in the preliminary relief proceedings, that Sunweb is not obligated to acquire Corendon. Corendon has decided not to institute proceedings on the merits.

Closer scrutiny

Also noteworthy is the large number of Phase II investigations at ACM: it commenced 6 Phase II investigations between 1 July 2020 and 1 August 2021:

 

ACM is continuing the intensive merger control trend. It is remarkable that ACM ultimately unconditionally approved a large number of these Phase II cases. In 2021 alone, ACM unconditionally approved three Phase II cases: see here, here and here. ACM’s chairman Martijn Snoep reported that the current merger wave is freeing up a great deal of capacity at ACM for close merger control. According to him, that is also the reason for the increased number of Phase II investigations at ACM. He also reported: “Some companies are taking a gamble, but we pay very close attention and don’t let anything slip through. [...] Many of our people are involved in that game; it is an important task for us.” But the increased number of Phase II investigations, in which ACM regularly grants unconditional approval, remains a remarkable fact. ACM therefore appears to be sooner inclined to carry out a Phase II investigation than in the past. It remains to be seen whether this will ultimately speed up merger control by ACM, which appears to be Martijn Snoep’s policy: in cases that are unconditionally approved, a lengthier Phase I investigation by ACM may make the process more efficient and is also more cost-efficient for businesses. The filing fee, for instance, that companies must pay ACM for a decision in the Phase I or notification phase, is €17,450. If ACM does not give the go-ahead until Phase II or the approval phase, the companies involved have to pay a further €34,900 for a decision in that phase.

ACM published a new procedure for merger cases on 6 October 2021. That new procedure provides information on the handling of a notification and a merger licence application within the framework of ACM merger control. In addition to the fact that notifications may now (finally) be submitted to ACM in digital form, the new procedure includes an explanation of referral requests to the European Commission under Article 22 of the Merger Regulation and the new data room procedure.

Merger control: killer acquisitions

The Commission’s intention to use Article 22 of the Merger Regulation as an instrument to review killer acquisitions has received a great deal of attention, including in the Netherlands. ACM has already joined referral requests from other competition authorities on several occasions (see here and here). Although the power of referral is not new, it has been dormant for years. On 26 March 2021, the Commission published guidance on the application of the referral mechanism. ACM will not be providing a similar manual, as Martijn Snoep stated during a meeting of the Competition Law Association. The fact that the Commission has already accepted two referral requests in a short period of time demonstrates that it is serious about reviewing killer acquisitions. We expect the number of referral requests to increase. It remains to be seen whether the instrument will also be used in cases that do not involve medical or other technology and data-related transactions.

Healthcare turnover thresholds

Another development relates to the turnover thresholds that determine when a concentration in the healthcare sector must be notified to ACM. The turnover thresholds in healthcare have been lowered on the basis of the Decree on the Temporary Extension of the Scope of Merger Control for Companies Providing Healthcare (the “Decree”). The Decree has now been extended several times and applies until 1 January 2023. On 8 October 2021, the Ministry of Health, Welfare and Sport published a report evaluating the lowered turnover thresholds. The report tentatively concludes: “It therefore seems appropriate not to increase the reduced Dutch turnover thresholds”. At this moment there is thus no reason to assume that the reduced thresholds for the healthcare sector will be increased significantly in 2023. In this blog we explain how a more targeted assessment of healthcare mergers can be achieved.

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Contact details

Diederik Schrijvershof

T +31 20 238 20 03
M +31 6 81 364 318

Martijn van de Hel

T +31 20 238 20 02
M +31 6 21 210 853

Paul Breithaupt

T +31 20 238 20 05
M +31 6 39 177 993