General Court green lights European Commission's new approach to Article 22 referrals
The General Court's Illumina/GRAIL judgment confirms that the European Commission (EC) has the power under Article 22 of the EU Merger Regulation (EUMR) to accept referral requests from a Member State National Competition Authority (NCA) to review transactions over which the NCA does not have jurisdiction under national law. While Illumina has indicated that it intends to appeal, the judgment represents a major victory for the EC, in that it confirms that the EC has a broad discretion to review concentrations that would not otherwise be reviewable in the EU. It also reduces certainty for parties to concentrations, in relation to timing, deal certainty and management of antitrust risk.
Read the full blog, "General Court green lights European Commission's new approach to Article 22 referrals."
The EU Foreign Subsidy Regulation: A new set of filings for transactions with an EU Nexus
In June 2022, the Council and the European Parliament reached political agreement on a regulation intended to prevent foreign subsidies from distorting competition in the internal market (FSR). The expectation is that the FSR will be formally adopted in the fourth quarter of 2022. The notification obligations described below will apply nine months after the FSR's entry into force.
Read the full publication, "The EU Foreign Subsidy Regulation: A new set of filings for transactions with an EU Nexus."
The Competition Board jointly implemented settlement and active cooperation (leniency) mechanism for the first time
An investigation is initiated by the Competition Board (Board) against two players in the natural mineral water market in order to determine whether violation of Article 4 of the Law No: 4054 on the Protection of Competition alleging that they are exchanging information in natural mineral water market. During the investigation the parties have decided to make a settlement in terms of the alleged claim of the Competition Authority. Following the acceptance of the settlement declarations of the investigated parties by the Board, the Board has decided to finalize the investigation. In addition to the settlement applications, the Board also accepted active cooperation applications made by the parties and applied discounts in the administrative fines implemented as per the Regulation on Active Cooperation for Detecting Cartels in addition to the discounts applied due to settlement. This decision is the first example where the Board has implemented both the settlement and leniency mechanisms at the same time.
Regulation amending the Regulation on Fines to be Imposed on Agreements Restricting Competition, Concerted Acts and Abuse of Dominant Situation
An amendment has been made to the Article 3.1.f of the Regulation on Fines to be Imposed on Agreements Restricting Competition, Concerted Acts and Abuse of Dominant regarding the definition of annual gross income which is a base for the calculation of the fines. Accordingly, the annual gross income definition is amended to refer to the net sales in the uniform chart of accounts or if not applicable, the revenue closest to the net sales which will be determined by the Competition Board and if for any reason, it is detected that the undertakings have accounted for their (main) operating income under the account items that are not taken into account in the calculation of net sales, such as ordinary income or profits from other activities, the said amounts are also taken into account when determining the annual gross income. The previous version of the definition, inclusion of the amounts that are not taken into account to the calculation of net sales was not regulated.