Antitrust Working Groups and submissions

UK: Response to CMA Merger Remedies Call for Evidence

The submission presents contributions in three broad remedy themes (i.e., (i) the CMA’s approach to remedies, (ii) preserving pro-competitive merger efficiencies and merger benefits and (iii) running an efficient process) from the international perspective.

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New Zealand: Comments on Potential Changes to the Commerce Act 1986 by New Zealand’s Ministry of Business, Innovation and Employment (MBIE)

The submission covers some observations as to the potential changes to the New Zealand’s Commerce Act 1986, including, inter alia, the ‘substantial lessening of competition test’, serial acquisitions, behavioral remedies, and mergers outside the clearance process from merger control side, and exemptions for certain types of beneficial cooperation from the antitrust conduct side.

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Brazil: Comments on the draft Antitrust Leniency Guide by Administrative Council for Economic Defense (CADE)

The submission covers some general observations regarding the draft of the leniency guide, including, in particular, the requirements for filing an antitrust leniency agreement and the level of publicity of the information and documents of such agreement.

As regards the IBA Cartel Working Group´s recent contribution to the Brazilian draft Antitrust Leniency Guide, the IBA’s collaboration was expressly mentioned by the Deputy Superintendent at CADE, Mr Felipe Roquete, in a LinkedIn post, as well as in page 4 of the official document in Portuguese.

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Australia: Comments on the Potential Changes to Australia’s Merger Rules and Processes

The submission covers some general observations regarding proposals for substantial change to the existing merger rules and processes, on the potential change to the substantive test and expanded discretion, and then on the potential changes to the role of the federal court.

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South Africa: Comments on the Draft Amended Public Interest Guidelines relating to Merger Control (December 2023)

The submission covers various issues concerning the draft including best practices in general and certain specific comments.

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Competition Commission of India: Comments to public consultation on the Draft Competition Commission of India (Lesser Penalty) Regulations (September 2023)

The submission covers various issues concerning the draft including the oral marker system, confidentiality and the right to be heard.

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Public Consultation regarding a draft revised Merger Implementing Regulation and a draft revised Notice on Simplified Procedure.

The submission prepared by the Mergers Working Group covered: (i) the potential to expand the scope of transactions that qualify for simplified review and streamlining the review of simplified cases; and (ii) several aspects of the review of non-simplified cases.

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Consultation on the UK’s Phase 2 process in merger reviews.

The submission prepared by the Mergers Working Group covered various aspects of the Competition and Markets Authority’s Phase 2 process and made a number of recommendations regarding enhancing engagement with the decision market with reference to ICN Recommended Practices and experience from other regimes such as in the EU and Singapore.

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Public consultation on draft amendments to the merger control regulations.

The submission prepared by the Mergers Working Group focused on: (i) recommendations to improve the proposed deal value threshold conditions; (ii) suggestions to reintroduce certain exemptions and the fast-track approval route for non-problematic transaction; and (iii) bolstering certain procedural aspects of the merger review process, among others.

In order to strengthen the submissions, reliance was placed on ICN Recommended Practices and the position in several other jurisdictions, including Austria, Europe, Germany, Japan and the US.

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Public consultation on draft regulations setting out the proposed framework for the newly introduced settlement mechanism.

The submission prepared by the IBA Working Group focused on recommendations to improve the proposed settlement framework, including by: (i) making the process more consultative and balanced; (ii) providing the applicant with a comprehensive list of theories of harm to address; (iii) providing clarity on the process of calculating the settlement amount; (iv) extending the permissible time period for submitting a settlement application; and (v) improving several procedural aspects of the framework.

In order to strengthen the submissions, reliance was placed on ICN Recommended Practices and the position in several other jurisdictions, including Brazil, Bulgaria, the EU, South Africa and the UK.

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Public consultation on draft regulations setting out the proposed framework for the newly introduced commitments mechanism.

The submission prepared by the IBA Working Group focused on recommendations to improve the proposed commitments framework, including by: (i) making the process more consultative and balanced; (ii) providing the applicant with a comprehensive list of theories of harm to address; (iii) extending the permissible time period for submitting a commitments application; (iv) prohibiting the use of information shared, if the commitment application is rejected; and (v) improving several procedural aspects of the framework.

In order to strengthen the submissions, reliance was placed on ICN Recommended Practices and the position in several other jurisdictions, including Brazil, Bulgaria, the EU, South Africa and the UK.

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Public consultation on proposed reforms to the merger pre-notification filing form.

The submission prepared by the Mergers Working Group focused on areas where the proposed HSR changes could be refined by reference to practices in Brazil, Canada, China and the EU, covering areas such as: (i) treatment of more straight forward cases; and (ii) requirements on specific types of information to be provided (including labour market, foreign subsidies, prior acquisitions, director and officer information, and transaction-related documents).

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Public consultation regarding how to improve Canadian Competition Policy, based on the topics pointed out by the paper ‘The Future of Competition Policy in Canada’

The submission prepared by the Mergers Working Group and the Antitrust Litigation Working Group of the IBA Antitrust Section.

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The Japan Fair Trade Commission’s draft of ‘Guidelines Concerning the Activities of Enterprises, etc Toward the Realization of a Green Society under the Antimonopoly Act’

The submission prepared by the Sustainability Working Group of the IBA Antitrust Section, which draws on that combined experience.

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Pubic consultation regarding the revised draft for the Market Definition Notice.

The submission, prepared jointly by the Unilateral Conduct and Behavioural Issues Working Group, the Cartels Working Group and the Mergers Working Group, covers comments to the public consultation issued by the European Commission concerning an update to its notice on market definition. The comments covered general issues; the concept of the relevant market and general methodology; the process of defining markets; various substantive issues about market definition; and the role of market shares.

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Public Consultation regarding definitions related to control of economic concentrations and mandatory filing thresholds.

The submission prepared by the Mergers Working Group covered general and specific comments on the CPDC’s public consultation regarding definitions related to the control of economic concentrations, pursuant Articles 7 to 9 of the Law 18.159.

The response and comments included the following: (i) considerations on possible definitions for control, which would affect the transactions that are subject to mandatory filing with the competition authorities; (ii) identification of business assets that would be relevant to merger filings; (iii) suggestions on items to be included/excluded in turnover calculation to assess the thresholds that would trigger a mandatory merger filing; and (iv) comments on the provision regarding the “sole company” definition.

Additionally, the Mergers Working Group provided comments to the Uruguayan authority with suggestions to provide an effective merger control system in which undertakings would be able to easily verify whether a transaction triggers a mandatory filing in Uruguay.

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The Antitrust Section Merger Working Group submitted comments on the proposed partial revision of the Swiss Cartel Act published for public consultation by the Swiss State Secretariat for Economic Affairs.

Suggestion for revision of the Swiss Cartel Act with a focus on clarifications regarding (i) the introduction of the SIEC merger control test, (ii) the introduction of an exemption for transactions with exclusively international markets, (iii) the possibilities to extend the statutory deadlines, as well as (iv) the risks of retroactive effects of the introduction of the changes.

The MWG suggested that the proposed introduction of the SIEC test in Switzerland should be aligned with the international practice and that guidance on the future application should be issued. With regards to a possible notification exemption for transactions that are notified to the European Commission, the MWG noted that there could be significant uncertainties in the procedure and recommended clarifications, as well as the establishment of a swift and binding pre-ruling mechanism on the exemption from the notification obligation.

Furthermore, the MWG pointed out that the suggested possibilities to extend merger control review deadlines should only be applied in specific and limited situations with an objective reason to coordinate international procedures.

Finally, the MWG noted that the entry into force of the new law could lead to problematic retroactive effects, which should be mitigated.

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The Anti-trust Section Merger Working Group proposed suggestions for renewal of the Group Definition Notification and the Small Target Exemption Notification.

In 7 March 2022, suggestion for renewal of (i) the Group Definition Notification pursuant to which enterprises exercising less than 50% voting rights in another enterprise are exempt from the definition of “Group”; and (ii) the Small Target Exemption Notification pursuant to which certain transactions are exempt from the notification obligation to the Competition Commission of India (“CCI”).

Definition Notification maybe renewed (preferably with retroactive effect) so that only those enterprises which exercise at least 50% voting rights in another enterprise are considered part of the same “Group”. This was proposed to prevent a situation whereby an enterprise could be viewed as belonging to two or more unrelated and distinct groups, as well as to reduce the regulatory burden on the CCI by avoiding the review of non-problematic transactions.

The MWG proposed the renewal of the Small Target Exemption Notification (upon its expiry) in order to ensure that there remains a two or more” requirement under the Indian merger control regime, which automatically excludes non-problematic transactions from the requirement of notification based on objective criteria of asset and turnover thresholds of the target.

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The Antitrust Section Unilateral Conduct Working Group submitted comments on revised Vertical Guidelines

In February 2022, the Antitrust Section Unilateral Conduct Working Group submitted comments on draft guidance on information exchange in dual distribution, published by the European Commission and intended to be included in its revised Vertical Guidelines..

The Antitrust Section Unilateral Conduct Working Group submitted comments on draft new guidance on information exchange in dual distribution, published by the European Commission and intended to be included in its revised Vertical Guidelines (VGL). This sets out a framework for analysis and provides examples of types of exchange to be covered by the revised Vertical Block Exemption Regulation, and other types that will need case-by-case analysis.

The Working Group welcomed the draft guidance and commended the Commission for having responded constructively to earlier stakeholder feedback on dual distribution information exchange. In particular, given the Commission’s original stated intention to address this issue in the context of the ongoing review of the rules on horizontal collaboration, the Working Group welcomed the fact that guidance is to be provided in the revised VGL.

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