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Washington D.C. 5th January – FTC Challenges Employment Non-Compete Clauses.
The Federal Trade Commission (FTC) announced that it had taken legal action against 3 companies and 2 individuals, forcing them to drop non-compete restrictions that they imposed on thousands of workers. This is the first time that the agency has sued to halt unlawful non-compete restrictions.
The complaints state that each of the companies and individuals illegally imposed non-compete restrictions on workers in positions ranging from low-wage security guards to manufacturing workers to engineers that barred them from seeking or accepting work with another employer or operating a competing business after they left the companies.
The FTC stated that such restrictions harmed both workers and competing businesses. For workers, non-compete restrictions lead to lower wages and salaries, reduced benefits, and less favorable working conditions. For businesses, these restrictions block competitors from entering and expanding their businesses. the FTC Act. The FTC has ordered the companies to cease enforcing, threatening to enforce, or imposing non-compete restrictions on workers and to notify all affected employees that they are no longer bound by the non-compete restrictions.
Dublin 6th January – CCPC Publishes Mergers & Acquisitions Report 2022.
The Competition and Consumer Protection Commission published its 2022 Mergers & Acquisitions Report. The report provides an overview of merger cases decided by the CCPC in 2022. 68 mergers were notified to the CCPC in 2022 compared with 81 the previous year. The CCPC issued 70 Determinations in 2022. The Report notes that the CCPC completed seven full Phase 2 investigations in 2022. Four transactions were cleared subject to conditions. We have previously suggested that the Report could be improved through the inclusion of some additional information on merger cases notified to and decided by the CCPC. For example, it would be useful to know the breakdown of cases between horizontal and vertical mergers.
Dublin 13th January – CCPC Clears AIB Acquisition of Ulster Bank Tracker Mortgage Business.
The CCPC announced that it had cleared the proposed acquisition of Ulster Bank’s Tracker Mortgage business by AIB following an extended Phase 1 investigation. The decision is the last in relation to four mergers notified to the CCPC following the decisions by KBC and Ulster Bank to dispose of their Irish banking businesses and exit the Irish market.
Dublin 20th January – CCPC Clears Uniphar Acquisition of Sam McAuley Chemists.
The Competition and Consumer Protection Commission (CCPC) announced that it had cleared the proposed acquisition of Sam McAuley chemists subject to a number of legally binding commitments. These include a commitment that Uniphar will divest three specific pharmacies, as going concerns, to a suitable purchaser or purchasers (who will be subject to CCPC approval). The three pharmacies involved are located in Athy, County Kildare; Bunclody, County Wexford and Navan County Meath.
Brussels 8th February – EU Commission Clears MBCC/Sika Subject to Conditions.
The Commission’s preliminary investigation showed that the proposed transaction, as initially notified, would have substantially reduced competition and led to higher prices and less innovation in the European Economic Area (‘EEA’) markets for chemical admixtures and concrete admixtures. The investigation found that:
- The merged entity would have very large market shares and face very few competitors in the EEA chemical admixtures market.
- There were significant barriers to entry, such as the need to have a sufficiently large customer base, strong sales force and technical team, high volumes of orders and know-how to compete. Moreover, the market is characterised by strong brand loyalty.
Sika offered to divest MBCC’s chemical admixture business in the EEA, Australia, Canada, New Zealand, Switzerland, the UK and US, including global research and development facilities. The Commission stated that the commitments involved the structural divestiture of a stand-alone business, which fully removed the horizontal overlaps between the parties in chemical admixture markets in the EEA and would enable a purchaser to run the divested business as viable competitive force in the market on a lasting basis.
Dublin 28th February – CCPC Last Minute Adoption of New Vertical Restraints Declaration.
The Competition and Consumer Protection Commission (CCPC) has adopted a new Declaration on Vertical Agreements. This follows a review process of the CCPC’s previous 2010 Declaration.
Vertical agreements are agreements between two or more undertakings, operating at different levels of the production or distribution chain, relating to the conditions under which the parties may purchase, sell or resell certain goods or services. The Competition Act 2002 as amended permits the CCPC to declare in writing that a specified category of agreements, decisions or concerted practices are not prohibited by Irish competition law.
The CCPC reviewed the 2010 Declaration to ensure consistency with the EU Commission’s Vertical Block Exemption Regulation (Commission Regulation (EU) 2022/720) (VBER) which was revised in June 2022. The CCPC launched a public consultation on the proposed new Declaration on January 30th with a deadline of 10th February for submissions, thus affording interested parties nine working days to respond. The new Declaration came into force on 1st March, the date on which the previous 2010 Declaration expired.
London 14th March – CMA Raises Concerns Over Asda Acquisition of Filling Stations.
Following a Phase 1 investigation, the Competition and Markets Authority (CMA) announced that it had concerns that Asda’s proposed purchase of 132 petrol stations and attached grocery stores from the Co-op could mean higher prices or less choice for motorists or shoppers in 13 areas.
The CMA stated that its investigation focused on a number of local areas in which Asda and the Co-op sites compete to provide fuel or groceries to customers. The CMA found that the deal raises competition concerns in 13 locations across the UK, in each of which the merging businesses currently compete for customers and would not face sufficient competition after the merger. It concluded that the deal could therefore lead to consumers and businesses in these areas facing higher prices or lower quality services when shopping or buying fuel.
Asda has 5 working days to offer legally binding proposals to the CMA to address the competition concerns identified. The CMA would then have a further 5 working days to consider whether these proposals address its concerns, or if the case should be referred to an in-depth, Phase 2 investigation.
London 23rd March – CMA Fines 10 Companies £60m for Bid-Rigging.
The Competition and Markets Authority (CMA) announced that it had fined 10 construction firms a total of nearly £60 million for illegally colluding to rig bids for demolition and asbestos removal contracts involving both public and private sector projects. The CMA also secured the disqualification of 3 directors of firms involved in the unlawful conduct. According to the CMA, each of the 10 firms was involved in at least one instance of bid rigging between January 2013 and June 2018. Eight of the firms received reduced fines having admitted their involvement in the cartel activity.
The CMA stated that bids were rigged by one or more of the construction firms agreeing to submit bids that were deliberately priced to lose the tender. This practice, known as ‘cover bidding’, can result in customers paying higher prices or receiving lower quality services.
In addition, the CMA found that five of the firms, on at least one occasion each, were involved in arrangements by which the designated ‘losers’ of the contracts were set to be compensated by the winner. The value of this compensation varied but was higher than £500,000 in one instance. Some firms produced false invoices to hide this part of the illegal behaviour.
The CMA found that the instances of illegal collusion took place over a five-year period and affected 19 contracts for demolition work in London, the Southeast, and the Midlands.
London 26th April – CMA Blocks Microsoft/Activision.
The Competition and Markets Authority (CMA) announceed that it had blocked Microsoft’s proposed purchase of Activision due to concerns that the deal would alter the future of the fast-growing cloud gaming market, leading to reduced innovation and less choice for UK gamers over the years to come.
The final decision blocking the deal came after Microsoft’s proposed solution failed to effectively address the concerns relating to the cloud gaming sector, which had been outlined in the CMA’s provisional findings published in February.
Brussels 28th April – EU Commission Announces Investigation into Train Ticketing in Spain.
The EU Commission announced that it had opened a formal investigation to assess whether Renfe, the Spanish state-owned rail operator, may have abused its dominant position in the Spanish passenger rail transport market by refusing to supply all its content and real-time data to rival ticketing platforms.
The Commission stated that it had concerns that Renfe may have restricted competition in the Spanish market for online rail ticketing services by refusing to provide third-party ticketing platforms with: (i) full content concerning its range of tickets, discounts and features; and (ii) real time data (pre-journey, on-journey or post-journey) related to its passenger rail transport services.
Gijon 5th May – Compecon’s Patrick Massey Presents Analysis of Winning Strategies in Women’s Big Bash Cricket at the Gijon Annual Sports Economics Conference.
Compecon’s Director, Patrick Massey, presented the findings of a study of winning strategies in the Australian Big Bash Women’s T20 Cricket League at the annual Gijon sports economics conference which this year was devoted to the issue of Women’s Sports Economics.
The presentation related to a joint study undertaken with co-author Dr Vincent Hogan of the Economics Department at UCD. In his presentation Patrick stated that the results of their analysis indicated that the optimal winning strategy involved a combination of attacking batting and bowling strategies. There was no difference in winning strategies between the Men’s and Women’s Big Bash Leagues. Thus, if fans prefer attacking play, the Women’s Big Bash League delivers.
Compecon’s Patrick Massey addressing the conference with conference organiser Prof. Placido Rodriguez Guerrero of the University of Oviedo (seated).
Dublin 5th May – CCPC Clears BWG/Tuffys Subject to Binding Commitments.
The Competition and Consumer Protection Commission (CCPC) announced that it had cleared BWG’s acquisition of Tuffy’s Wholesale subject to binding commitments by the parties.
BWG is involved in the wholesale distribution of food and grocery goods to its affiliated stores and to stores operated by independent retailers. Tuffy Wholesale is an Irish-owned wholesale business and a member of Stonehouse Marketing Limited (Stonehouse) and Gala Retail Services Limited (GRSL).
The CCPC identified potential concerns that BWG could potentially obtain access to commercially sensitive information relating to GRSL or Stonehouse via its ownership of Tuffy’s. BWG offered a number of binding commitments including a divestment of Tuffy’s shareholdings in Stonehouse and GRSL which addressed the CCPC’s concerns. Compecon advised the parties in this case.
London 16th May – CMA Denies It Blocked Microsoft Deal On Order of US FTC .
The Chief Executive of the UK Competition and Markets Authority (CMA) denied that the agency was acting on the orders of the US Federal Trade Commission (FTC) when it decided to block Microsoft’s $69bn (£55bn) acquisition of the Call of Duty creator Activision Blizzard. Ms Cardell told MPs on the Business and Trade Select Committee that the CMA only acts on its own assessment of the validity of a merger.
The proposed transaction was cleared by the EU Commission but, following Brexit, is also subject to UK national law. The FTC has issued court proceedings seeking to block the deal. Competition agencies in the United States do not have the power to block mergers and if they conclude that a transaction is likely to substantially lessen competition they must issue injunction proceedings.
Dublin 26th May – CCPC Issues Assessment in Q-Park/Tazbell.
The Competition and Consumer Protection Commission (CCPC) announced that it had issued an Assessment to the parties in Q-Park/Tazbell. The Assessment sets out the CCPC’s preliminary view of the proposed transaction, although the issuing of an Assessment indicates that the CCPC has concerns about the impact of the proposed transaction on competition. The parties can respond to the Assessment in writing and may also request an oral hearing. The CCPC statement indicates that the case is expected to conclude in August.
Dublin 31st May – CCPC Launches Phase 2 Investigation of Waste Merger.
The Competition and Consumer Protection Commission (CCPC) announced that it has decided to carry out a full (Phase 2) investigation of Thornton’s proposed acquisition of the City Bin Company. Both undertakings provide waste collection services to domestic and commercial customers. The parties activities overlap in the case of Dublin.
Brussels 9th June – EU Commission Issues Statement of Objections in Booking/eTraveli.
The EU Commission announced that it had informed Booking Holdings (‘Booking’) of its preliminary view that its proposed acquisition of Flugo Group Holdings AB (‘eTraveli’) may allow Booking to strengthen its position on the market for hotel online travel agencies (‘OTAs’) in the European Economic Area (‘EEA’).
The Commission stated that, following an in-depth investigation, its preliminary conclusion was that Booking is the dominant hotel OTA in the EEA. The Commission was concerned that the transaction may:
- Strengthen Booking’s dominant position in the hotel OTA market further, increasing its bargaining position towards hotels and diverting demand from cheaper alternative sales channels. Competition is already limited in the hotel OTA market and Booking appears to be unconstrained by competing OTAs, hotels and end customers.
- Allow Booking to expand its ecosystem of travel services (e.g., flights, accommodation, car rentals, attractions), making its market position in the hotel OTA market more difficult to contest.
- Increase barriers to entry and expansion by making it harder for competing OTAs to develop a customer base that can support a hotel OTA business.
- Allow Booking to significantly increase its online customer traffic that, in turn, may allow it to increase its sales of hotel OTA services.
- Increase costs for hotels and, possibly, end customers.
Brussels 14th June – EU Commission Issues Google Statement of Objections.
The EU Commission announced that it has informed Google of its preliminary view that the company breached EU antitrust rules by distorting competition in the advertising technology industry (‘adtech’). The Commission takes issue with Google favouring its own online display advertising technology services to the detriment of competing providers of advertising technology services, advertisers and online publishers.
The Commission’s preliminarily findings were that:
(a) Google was dominant in the European Economic Area markets: (i) for publisher ad servers and (ii) for programmatic ad buying tools for the open web; and (b) Google had abused its dominant position since at least 2014 by faviouring its own exchange.
The Commission stated that it’s preliminary view was therefore that only the mandatory divestment by Google of part of its services would address its competition concerns.
Brussels 6th July – EU Commission Launches In-Depth Investigation of Amazon/iRobot.
The EU Commission has launched an in-depth investigation into the proposed acquisition of iRobot by Amazon. The Commission stated that it is concerned that the transaction would allow Amazon to restrict competition in the market for robot vacuum cleaners (‘RVCs’) and to strengthen its position as online marketplace provider.
Amazon provides an online marketplace (the Amazon Stores), which allows retailers to advertise and sell products (including RVCs) to customers. Amazon is active as a retailer of various products (including RVCs) on its marketplace. iRobot manufactures RVCs and sells them also on Amazon’s online marketplace.
Dublin 13th July – CCPC Clears Waste Merger Subject to Binding Conditions.
The Competition and Consumer Protection Commission (CCPC) announced that it had cleared the proposed acquisition by Padraig Thornton Waste Disposal Limited, t/a Thorntons Recycling, of Carducci Holdings DAC, which controls The City Bin Company, subject to binding commitments. The CCPC had previously announced that it had launched a full Phase 2 investigation of the transaction on May 31st.
The announcement stated that the CCPC had identified potential competition concerns because some households in County Dublin, where both parties operated were both active, could have less choice, increased prices and diminished quality of domestic waste collection services. The parties gave binding undertakings including inter alia a commitment to divest a number of household customers to a third party.
Luxembourg 13th July – CJEU Overturns General Court Judgement in O2/Three Merger.
The Court of Justice of the European Union has issued its judgement Commission v CK Telecoms overturning the EU General Court judgement setting aside the EU Commission decision prohibiting the proposed acquisition of Telefónica Europe (‘O2’) by Hutchison 3G UK Investments (‘Three’). This judgement was seen as critical for the future of effective EU Merger control. In particular the CJEU ruled that the General Court had erred in law in applying an extraordinarily high standard of proof. The General Court had ruled that the Commission was required to meet a higher standard of proof than the balance of probabilities threshold. in order to find that the proposed transaction would result in a significant impediment to efffective competitin. er than Commission was when ruling that the Commission was required to which was extraordinarily high.
Dublin 14th July – CCPC to Conduct Phase 2 Investigation of Aurivo/Arrabawn acquisition.
The Competition and Consumer Protection Commission (CCPC) has decided to carry out a full Phase 2 investigation into the proposed acquisition by Aurivo Consumer Foods Limited, a subsidiary of Aurivo Co-operative Society Limited (Aurivo), of certain assets of Arrabawn Co-Operative Society Limited (Arrabawn).
Aurivo is an agri-business co-operative. Its principal activities involve the sale of dairy ingredients and dairy products such as powders and fresh milk, cream, butter and ready to drink protein shakes. It also operates a number of agri-retail outlets which sell animal feeds, agricultural goods, hardware and other products. Arrabawn is also an agri-business co-operative. Its business operations include the sale of dairy products, food ingredients and animal feed products as well as the operation of agricultural retail stores. The proposed acquisition would see Aurivo acquire certain specified assets which comprise parts of Arrabawn’s business for the supply of branded and unbranded liquid milk, cream and butter products.
The CCPC has concluded that a full investigation is required in order to establish if the proposed acquisition could lead to a substantial lessening of competition in the State.
Brussels 27th July – EU Commission Announces Investigation of Microsoft in Relation to Teams.
The EU Commission announced that it has opened a formal investigation to assess whether Microsoft may have breached EU competition rules by tying or bundling its communication and collaboration product Teams to its popular suites for businesses Office 365 and Microsoft 365.
Microsoft includes Teams in its well-entrenched cloud-based productivity suites for business customers Office 365 and Microsoft 365. The Commission stated that it is concerned that Microsoft may be abusing and defending its market position in productivity software by restricting competition in the European Economic Area (‘EEA’) for communication and collaboration products.
In particular, the Commission said that it is concerned that Microsoft may grant Teams a distribution advantage by not giving customers the choice on whether or not to include access to that product when they subscribe to their productivity suites and may have limited the interoperability between its productivity suites and competing offerings.
Brussels 31st July – EU Commission Issues Statement of Objections to Pierre Cardin.
The EU Commission announced that it had informed Pierre Cardin and its licensee Ahlers of its preliminary view that the companies may have breached EU competition rules by restricting cross-border sales of Pierre Cardin-licensed clothing, as well as sales of such products to specific customers.
Pierre Cardin is a French fashion house, which licenses its trademark for the manufacture and distribution of its clothing. German clothing manufacturer Ahlers is the largest licensee of such clothing in the European Economic Area (‘EEA’).
The Commission stated that it had concerns that, for more than a decade, the parties had entered into anticompetitive agreements and coordinated to restrict the ability of other Pierre Cardin licensees and their customers to sell Pierre Cardin-licensed clothing, both offline and online: (a) into Ahlers’ EEA licensed territories; and/or (b) to low-price retailers (such as discounters) offering lower prices to consumers in such territories. The Commission preliminarily found that the ultimate objective of such behaviour was to ensure Ahlers’ absolute territorial protection in the countries covered by its licensing agreements with Pierre Cardin in the EEA.
Dublin 9th August – CCPC Launches Full Phase 2 Investigation of Airport Car Park Acquisition.
The Competition and Consumer Protection Commission (CCPC) announced that it has decided to conduct a full Phase 2 investigation of the proposal by Dublin Airport operator, daa, to acquire a site located on the Swords Road, Santry, Dublin 9 (which was previously operated by a third party as a carpark under the QuickPark brand). The proposed acquisition would give daa a virtual monopoly on car park facilities at Dublin Airport, which is by far the State’s largest and busiest airport. QuickPark has not re-opened since the Covid Pandemic, apparently due to a legal dispute with the owner of the land which it had leased for its car park. It is estimated that, if the transaction were to proceed it would leave daa with approximately 93% of car parking spaces at Dublin Airport.
Media reports over the past 18 months have indicated that daa’s car parking charges have increased considerably. daa had also indicated in recent months that its car parks were fully booked on a number of occasions while also stating that it could quickly re-open the QuickPark facility if the transaction were cleared by the CCPC, thereby alleviating the parking shortage.
This is the fifth Phase 2 investigation launched by the CCPC in ten weeks. While the high number of Phase 2 investigations might indicate a stricter approach by the CCPC, it may also indicate a lack of deterrence.
Dublin 16th August – CCPC Clears Car Park Merger Subject to Conditions.
The Competition and Consumer Protection Commission (CCPC) announced that it has cleared the proposed acqusition of Tazbell by Q-Park subject to binding commitments. The transaction was notified to the CCPC in August 2022. The CCPC announced in December that it was launching a full (Phase 2) investigation into the deal and it issued an Assement to the parties in the case on 26th May (see above).
The binding commitments offered by the parties involve
(i) the leasing of the top level of Tazbell’s current car park in Galway to a new entrant to the Galway market, an online parking provider, which will operate in competition with Q-Park, on a long term basis.
(ii) Q-Park ceasing operation of one of its Dublin city centre car parks at the expiration of the existing contract, allowing another competitor to bid for the contract to operate that car park, following completion of the transaction.