Follow-On Civil Litigation

Seminar - On 24 September 2020, several Stibbe lawyers ​​​​​explain the rights and obligations of companies when confronted with announced or unannounced raids. What do to when, for example, tax authorities, the competition authorities, police services or a bailiff are at your doorstep?

Short Reads - The European Court of Justice (ECJ) has rejected Nexans’ appeal in the power cables cartel case. The Commission started the dawn raid at Nexans’ premises, but due to lack of time finished the raid at the Commission’s premises in Brussels. The ECJ found that the Commission can copy data and assess its relevance to the investigation at its own premises, while safeguarding companies’ rights of defence.

Short Reads - Large online platforms may face more regulatory obligations, whilst non-dominant companies’ unilateral conduct may soon be curbed. The European Commission intends to tool up its kit by adding a new regulation to keep digital gatekeepers in check, as well as providing more clarity on how to define digital markets in its new Market Definition Notice.

Short Reads - There is no magical number when it comes to “4-to-3” telecom mergers. On 28 May 2020, the EU’s General Court (“Court”) handed down a landmark judgment annulling a 2016 decision of the European Commission (“Commission”) blocking the merger between O2 UK and Three. The judgment fine-tunes the Commission’s application of the “significant impediment to effective competition” test for horizontal mergers and raises the bar for proving the removal of an “important competitive force” as a result of the merger.  

Short Reads - As well as granting companies leeway on certain COVID-19 initiated collaborations (see our May 2020 newsletter), the coronavirus outbreak has also led competition authorities to take a more lenient stance towards fine calculations and payments. The European Commission has extended the due date for fine payments by an additional three months in response to potential short-term liquidity issues brought about by the pandemic. Similar reasons led the Dutch Trade and Industry Appeal Tribunal to reduce a EUR 1 million cartel fine to just EUR 10,000.

Short Reads - The European Commission is adding powers to its toolbox to ensure a level playing field between European and foreign(-backed) companies active on the EU market. On top of merger control and Foreign Direct Investment screening obligations, companies may also need to account for future rules allowing scrutiny of subsidies granted by non-EU governments if those subsidies might distort the EU Single Market.

Short Reads - There may soon be a new competition tool available to tackle structural competition concerns in dynamic tech and platform markets. Until then, competition authorities resort to existing tools to deal with these markets. The Dutch competition authority (ACM) recently subjected the merger of two emerging platforms – without significant market footprint – to behavioural remedies. On 20 May 2020, the ACM cleared the merger between the travel apps of Dutch rail operator NS and transport company Pon.

Short Reads - Cross-border acquisitions and mergers may soon have an extra hurdle to cross before receiving the green light. In the EU, the development of FDI screening mechanisms has gained speed after COVID-19. Member States are steering away from a liberal investment policy and instead opting for mechanisms to protect companies from foreign takeover. Also in the Netherlands, broader investment screening is on its way. Companies should take account of these developments when contemplating M&A deals.