On April 19, 2021, the Commission accepted a referral request by the French competition authority of genomic sequencing company Illumina’s planned acquisition of biotech company Grail under Article 22 EUMR.[1] This marks the first effective upward referral of a ‘below threshold’ transaction, i.e., a transaction that neither meets national nor EU merger control thresholds.[2]
Air Canada Grounds Plans To Acquire Transat Facing Headwinds From the European Commission
On April 2, 2021, Air Canada announced that it had abandoned its plan to acquire Transat, a competing operator in the market for air transport services between Canada and the EEA. The deal was notified on April 16, 2020 and after one year of discussions and repeated suspensions of the investigation by the Commission, Air Canada decided to abandon the €127 million deal.
The Conseil d’Etat Holds That It Is Not Competent To Hear an Objection Against an FCA’s Referral of a Merger to the Commission
On April 1, 2021 the Conseil d’Etat ruled that it lacks jurisdiction to review a French Competition Authority (“FCA”) decision referring a contemplated merger to the European Commission (“Commission”) under Article 22 of the EU Merger Regulation (“EUMR”).[1]
Transforming European Merger Control: The Commission Specifies When It Will Seek To Review Mergers That Are Not Subject to Any Filing Requirements
The French Conseil d’Etat Recognizes Right of Employee Representatives to Appeal Against a French Competition Authority’s Merger Clearance Decision
On March 9, 2021, the French Conseil d’Etat ruled that the employee representative body of the target company could appeal the FCA’s decision to clear the transaction. However, the Conseil d’Etat dismissed the appeal on the merits.[1]
Volvo Secures Unconditional Clearance of Fuel-cell Joint Venture With Daimler
On February 5, 2021, the Commission unconditionally cleared the creation of a joint venture (“JV”) between the Volvo Group (“Volvo”) and Daimler Truck AG (“Daimler”).[1] The JV will be active in the relatively novel, but rapidly evolving, hydrogen fuel-cell technology sector, which promises a “green” future in particular for transport.[2]
The French Competition Authority Unconditionally Clears Engie’s Acquisition of a Stake in Hydrogen Producer and Distributor DMSE, Factoring in Growing “Green” Demand
On January 29, 2021, the French Competition Authority (“FCA”) unconditionally cleared Engie’s acquisition, through its subsidiary Storengy, of a controlling stake in Dijon Métropole Smart EnergHy (“DMSE”), a joint venture between Dijon Métropole and the Rougeot group specialized in the production and distribution of hydrogen.[1] The FCA cleared the concentration even though the combined entity will become the first and sole operator producing and distributing hydrogen in the Dijon area.
A New Theory of Harm and an Unprecedented Enforcement Action: The Commission Flexes Its Muscles in Novelis/Aleris
On January 27, 2021, the Commission published its decision to conditionally approve Novelis’ acquisition of Aleris, two suppliers of flat-rolled aluminum sheets.[1]
The Commission pushed the boundaries of its own powers in merger control proceedings, both in terms of substance and procedure. With respect to substance, the Commission introduced in its decision a new theory of harm for the competitive analysis of transactions, particularly with respect to markets affected by significant capacity constraints. From a procedural standpoint, the Commission adopted far-reaching measures to enforce the commitments that had been offered– and eventually infringed–by the parties to the transaction.
FNZ (Australia) Bidco Pty Ltd v Competition And Markets Authority
On 25 January 2021, the CAT published an order remitting the assessment of the completed acquisition of GBST Holdings Limited
The Commission Approves London Stock Exchange’s Acquisiton of Refinitiv, Subbject to Access Remedies: A (Likely) First in the Industry
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.[1] The decision likely marks the first-ever access commitment in a merger decision approved by the Commission in the financial sector.[2]