(Yes, this will mean some authorities will have to relinquish jurisdiction in certain instances, safe in the knowledge that a transaction will be reviewed elsewhere.)īut more importantly, we continue to believe that the system of mandatory pre-merger review is fundamentally flawed and that instead we should shift to a system of voluntary merger control in which only mergers that present genuine issues need to be notified. Looking ahead, we wonder whether a fundamental overhaul is needed to ensure that transactions that pose no problems are not saddled with the costs imposed by the global system. However, the costs associated with a system containing myriad controls are increasingly high. In sum, our assessment is that the global system of merger control continues to limp along. The maxim ‘no harm, no foul’ ought to be applied to these cases to ensure that valuable resources are not frittered away on them. Again, viewed from afar, this should not be a problem in no-issues filings, and authorities typically have the tools to unwind a completed merger. This leads us to the subject of gun-jumping. Our view is that the authorities should confine their focus to statements that would have yielded a very different outcome, not mere technical infringements. In other words, pursuing a few flagrant cases may be necessary to set a precedent, but they should not become regular items on the authorities’ agendas (bringing with them attendant increases in filing times, and costs). Be that as it may, due process needs to be followed in such cases, and this may divert valuable resources to past cases as opposed to dealing with the current case load. The argument for pursuing companies for inaccurate filings, for example, is that such violations call into question the very system of merger control. However, Europe has set the tone, and we expect other authorities to follow.Įurope also seems to be taking the lead (and others will follow due to the prospect of publicity-garnering fines) in relation to procedural infringements. Our own view is that it may be legitimate to look ahead to try and identify harm (after all, that is what merger control is all about), but this long lens should not be forgotten when it comes to reviewing the synergies that a merger may create. There is a sense among the Commission’s hard-liners that in the past too many mergers wriggled through without proper analysis. Perhaps the Dow/DuPont merger has attracted the most attention, as authorities now get out their telescopes and look far into the horizon to identify anti-competitive harm.
At the same time, the European Commission has forged ahead again with a focus on conglomerate mergers and innovation markets.
#Jumping line means update
Earlier this year, it became apparent that an update was required, not so much driven by regulatory change, but rather to take into account policy shifts.įor example, we have seen the US catch up with Europe in relation to vertical mergers, the AT&T/Time Warner review being the most prominent recent example. Welcome to the second White & Case merger control publication, the first edition of which was warmly received.
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