Merger Control and Joint Ventures

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.

Short Reads - Competition authorities are temporarily ‘green-lighting’ certain collaboration initiatives to safeguard the supply of essential products in light of the COVID-19 outbreak. At the same time, authorities warn against using the current exceptional circumstances to engage in anti-competitive practices, such as price-fixing, excessive pricing, refusals to deal or opportunistic takeovers. 

Short Reads - The Rotterdam District Court has annulled the Dutch Minister’s very first clearance of a blocked merger (between postal operators PostNL and Sandd), on grounds of public interest.

Short Reads - Companies claiming abuse of dominance in civil proceedings have their work cut out for them, as demonstrated by a ruling of the Amsterdam Court of Appeal. Real estate association VBO had accused dominant online platform Funda of favouritism. However, in line with the District Court’s earlier ruling, the Appeal Court dismissed the claim for insufficient evidence of negative effects on competition. The ruling confirms that the effect-based approach also applies in civil abuse claims, and that the standard of proof is high.    

Articles - Wat de gevolgen van de coronacrisis zullen zijn voor de samenleving, de economie en – laat staan – het mededingingsbeleid laat zich op het moment van de totstandkoming van deze kroniek niet voorspellen. Wel stond al vast dat het mededingingsrecht zal worden herijkt op basis van de fundamentele uitdagingen die voortvloeien uit zich ontwikkelende ideeën over het belang van industriepolitiek, klimaatverandering en de positie van tech-ondernemingen en de platforms die zij exploiteren.

Short Reads - Many Member States are taking measures to support the economy during the COVID-19 crisis. The European Commission’s Temporary Framework enables the rapid approval of certain types of State aid. So far, three Dutch State aid schemes and six Belgian schemes were approved, providing the beneficiaries with legal certainty that the aid received is in line with EU State aid law and cannot be challenged at a later stage.