On January 13, 2021, the Commission conditionally approved the acquisition by the London Stock Exchange Group (“LSEG”) of Refinitiv, following an in-depth Phase II investigation. The decision likely marks the first-ever access commitment in a merger decision approved by the Commission in the financial sector.
In its decision to open an in-depth investigation, the Commission raised concerns both about horizontal overlaps in the market for electronic trading of European Government Bonds (“EGBs”) as well as vertical concerns in the markets for: (i) trading of over-the-counter interest-rate derivatives (“OTC IRDs”); (ii) consolidated real-time datafeeds (“CRTDs”) and desktop services; and (iii) index licensing. The parties ultimately offered remedies to mitigate each concern and secure clearance.
EGBs electronic trading. LSEG and Refinitiv both own electronic trading venues for EEA, UK, and Swiss EGBs. These trading venues (LSEG’s MTS and Refinitiv’s Tradeweb) are close competitors, both with leading market positions. The Commission found that the transaction would have led to the creation or strengthening of a dominant position in the market for EGB electronic trading and its potential sub-segments. To remedy this concern, LSEG proposed an upfront-buyer remedy, offering to divest its 99.9% stake in the Borsa Italiana group, which includes MTS, to a suitable purchaser.
OTC IRDs trading. LSEG offers clearing of OTC IRDs performed by the London Clearing House Swapclear, while Refinitiv’s Tradeweb is a venue for trading OTC IRDs. The Commission found that the transaction would have led to a combined entity with significant market power in both trading (upstream) and clearing (downstream) of OTC IRDs. As a result, LSEG would have the ability and incentive to foreclose competing trading venues and related software providers in the upstream market.
To address these foreclosure concerns, LSEG offered an access remedy with a ten-year duration: LSEG commits to continue offering its global OTC IRD clearing services on an open access and non-discriminatory basis. In particular, LSEG undertakes not to discriminate against customers—for example in terms of clearing charges or service quality—based on the source (i.e., whether Refinitiv’s Tradeweb or third-party’s trading venue) of the OTC IRD trade they submit for clearing.
CRTDs and desktop services & index licensing. Refinitiv aggregates financial data from different sources in the form of consolidated real-time datafeeds (or CRTDs) and desktop services, which it offers in packages to traders, asset managers, and other data users. Three types of data offered by LSEG are a significant input for Refinitiv’s datafeeds and desktop services, often without an alternative. The Commission found that, following the proposed transaction, the merged entity could deny competing CRTDs and desktop services access to LSEG’s necessary input data.
Refinitiv also offers foreign exchange indices (its WM/R FX benchmarks), which are among the most important inputs for index design and calculation. The Commission found that Refinitiv’s benchmarks and CRTDs are a necessary input for financial index providers, without a viable alternative. As such, Refinitiv’s foreign exchange indices are widely used by the major financial index providers globally, including LSEG’s FTSE Russell. The Commission found that, as a result of the transaction, the merged entity could deny competitors in index licensing access to Refinitiv’s necessary input data.
To address these concerns about access to essential inputs, LSEG proposed data access remedies in: (i) CRTD and desktop services; and (i) index licensing. LSEG commits to provide access on non-discriminatory terms to the LSE venue data, FTSE Russell Indices, and Refinitiv’s WM/R FX benchmarks to all existing and future downstream competitors for ten years. It also undertakes to build a firewall to ensure that sensitive information LSEG receives from its customers is not transmitted to the competing Refinitiv CRTD and desktop services businesses.
The Commission approved the acquisition—subject to a mix of structural remedies and behavioral commitments—after almost seven months of in-depth review. In line with the principles of the Remedies Notice, the Commission generally has a preference for structural remedies in merger cases, as they offer a permanent solution without requiring additional monitoring and also offer a remedy that may satisfy authorities in multiple jurisdictions. Behavioral commitments, by contrast, are much more prevalent in antitrust cases. That being said, the Commission may accept behavioral commitments in merger decisions, especially where it aims to ensure interoperability or access for competitors and customers to essential inputs or patents.
The Commission is increasingly willing to accept behavioral remedies in vertical and conglomerate mergers where its concerns relate to foreclosure risks rather than increased market power. This has been particularly relevant in cases concerning essential digital services, which are akin to the access to clearing services and data inputs at issue in this decision.
The parties’ behavioral commitments in this case, i.e., offering access and licensing on non- discriminatory terms, could serve as guidance for resolving vertical and conglomerate concerns, especially those related to essential inputs, where the divestment of upstream or downstream businesses would be disproportionate.
 London Stock Exchange Group/Refinitiv (Case COMP/M.9564), Commission decision of January 13, 2021 (not yet published).
 Access remedies have also been accepted in related industries, notably in Worldline/Equens/PaySquare (Case COMP/M.7873), Commission decision of April 20, 2016, in which the parties were active in the provision of payment and related services. In that decision, the remedies included, inter alia, licensing certain software and maintenance services to third-party network service providers and granting access to the source code.
 An interest-rate derivative (or IRD) is a derivative whose payments are determined through calculation techniques where the underlying benchmark product is an interest rate, or set of different interest rates. An over-the-counter IRD is a financial IRD contract arranged between two counterparties with minimal intermediation or regulation.
 To that end, LSEG and Euronext signed a binding purchase agreement on October 9, 2020.
 Datafeeds allow for the transmission of data from computer to computer, while desktop services provide on-screen display of data.
 The three types of LSEG’s input data are: (i) LSE’s venue data, (ii) UK Equity Indices through FTSE Russell, and (iii) security identifiers called SEDOLs.
 Indeed, in another case involving LSEG, the Commission blocked its merger with Deutsche Börse after the parties indicated that they would only be prepared to offer a set of behavioral measures to provide access to MTS’s essential trading feeds, but refused to divest MTS; see, Deutsche Börse/London Stock Exchange Group (Case COMP/M.7995), Commission decision of March 29, 2017.
 Commission Notice on remedies acceptable under the Council Regulation (EC) No. 139/2004 and under Commission Regulation, O.J. C267/1, (“Remedies Notice”), paras. 13 and 80.
 See, for example, Qualcomm/NXP (Case COMP/M.8306), Commission decision of January 18, 2018 (in which Qualcomm committed to continue to license certain NXP technologies and trademarks on fair terms and ensure interoperability with its chipset for eight years, as well as not to acquire NXP’s standard essential patents); Microsoft/LinkedIn (Case COMP/M.8124), Commission decision of December 6, 2016 (in which Microsoft committed to ensuring that PC manufacturers and distributors would be free not to install LinkedIn on Windows, maintaining interoperability with Microsoft’s Office suite, and granting competing professional social networks access to the Microsoft Graph gateway for software developers).