Antitrust in focus – January 2022 | Allen & Overy LLP
- UK’s new national security regime operational
- U.S. merger control filing thresholds increase as enforcement looks set to get tougher
- Thai competition law: another eventful year
- Saudi Arabia competition authority blocks first merger
- EU releases draft guidelines on collective bargaining for solo self-employed
- India: pricing considerations for foreign direct investment
Digital & TMT
- Australia considers a new regulatory regime for digital platforms
- U.S. FTC sues to block Nvidia/ARM as the transaction faces close scrutiny by antitrust authorities across the globe
- European Commission’s final report on consumer Internet of Things sector inquiry encourages industry action
- EU General Court annuls European Commission’s EUR1.06bn fine on Intel
- European Commission pushes sustainability agenda in updated climate, environmental protection and energy State aid guidance
- Antitrust authorities’ headlights on electric vehicle charging markets
- European Commission concludes forex cartel investigations with further fines
- European Commission blocks merger for the first time since 2019
UK’s new national security regime operational
A new standalone regime which drastically expands the UK government’s powers to scrutinise and intervene in acquisitions on national security grounds came into force on 4 January 2020.
It means that some acquisitions, including some corporate restructures and lending transactions, must be notified to and approved by the government prior to completion. This mandatory suspensory notification obligation falls on certain acquisitions of qualifying entities carrying out particular activities in the UK within 17 defined sensitive areas of the economy.
Broadly, the sensitive sectors are advanced materials, advanced robotics, artificial intelligence, civil nuclear, communications, computing hardware, critical suppliers to the government, cryptographic authentication, data infrastructure, defence, energy, military and dual use, quantum technologies, satellite and space technology, suppliers to emergency services, synthetic biology and transport.
Completing a notifiable acquisition without prior approval means the transaction is void and risks significant civil and criminal sanctions in the form of fines or even imprisonment.
The new regime also enables the government to “call in” acquisitions in the wider economy that may raise national security concerns, whether or not they have been notified. This call-in power applies to certain acquisitions of both qualifying entities and qualifying assets (such as IP and land). And, while the regime will primarily concern investors in UK companies and UK-based assets, the rules do apply to certain acquisitions of entities and assets that are outside, but have a connection to, the UK.
The government has stated that qualifying acquisitions of entities that are in any of the 17 designated sensitive areas of the economy, or of entities which carry out activities “closely linked to” those areas, are more likely to be called in. As are acquisitions of control through material influence over target entities in the 17 sensitive areas. For qualifying acquisitions of assets, the call-in power is more likely to be used for assets that are/could be used in connection with activities in the 17 sensitive areas (or closely linked activities).
Significantly, the call-in power applies retroactively to certain transactions that were completed on or after 12 November 2020 and potentially for up to five years after completion.
Given the uncertainty of whether the government will call in a transaction on its own initiative, submitting a voluntary notification may be an attractive route where an acquisition falls outside the mandatory provisions but may raise implications for national security. The Government will be subject to a 30 working day initial review period, after which it must decide to either clear or call in the acquisition for a more detailed national security risk assessment.
The government is clear that the UK remains open to foreign investment. It states that most transactions will be cleared without any intervention. However, the far-reaching scope of the new regime and the resulting administrative burden and transaction risk will inevitably have a significant impact on acquirers looking to invest directly or indirectly in the UK. Parties should ensure that they: (i) build into the transaction timetable the time needed to notify and obtain any approvals; and (ii) include appropriate contractual protections in the deal documentation, including conditions precedent.
The UK is not alone in taking a tougher stance on national security issues. Jurisdictions around the globe are tightening controls on foreign direct investment, on national security or national interest grounds. Read more in our latest M&A Insights, where we focus on the impact on technology deals. You can also find out about pricing considerations for foreign direct investment in India from our article below.
U.S. merger control filing thresholds increase as enforcement looks set to get tougher
The Federal Trade Commission (FTC) has announced increases to the notification thresholds under the U.S. merger control rules. Our alert gives you the details of the revisions, which will apply to all transactions that close on or after 23 February 2022.
Just a couple of days after the FTC announcement, new Assistant Attorney General of the Department of Justice (DOJ) Antitrust Division Jonathan Kanter gave a significant speech. He expressed concerns that antitrust law enforcement has not succeeded in keeping pace with changes in the U.S. economy. In relation to merger control in particular, he is concerned that merger remedies “too often miss the mark”. In his view, when the DOJ concludes that a merger is likely to lessen competition, in most situations it should seek a simple injunction to block the transaction.
The speech is a further indication that more aggressive U.S. merger control enforcement is on the cards. See our article below on the FTC challenge to Nvidia/ARM and look out for more commentary on this theme in our upcoming global merger control trends report.
Thai competition law: another eventful year
Thai competition law continues to develop at pace. It was therefore no surprise that the Thai Office of Trade Competition Commission (OTCC) had a very active 2021.
Key highlights include:
- A spike in competition law enforcement, with a record number of complaints and over 20 OTCC rulings, showing the authority’s willingness to impose fines on both companies and individuals (both directors and non-directors).
- A revamped merger control notification form, requiring much more extensive information to be submitted by merging parties.
- A focus on the digital sector: eg new regulations for digital food delivery platforms prohibit certain practices such as requiring unfair commission fees without justifiable reason and enforcing certain exclusivity and rate parity provisions.
- New guidelines which aim to protect SMEs from unfair trade practices relating to credit terms.
- Increasing cooperation between the OTCC and other government agencies domestically and internationally.
Looking forward to 2022, in line with many other antitrust authorities around the world we expect the OTCC to continue to focus on the digital sector. Telecoms and energy sectors may also face increased scrutiny. In merger control, reform of the rules to better address concerns arising from vertical mergers may be on the cards. We will keep you updated.
Read our alert for more information on all of these issues. Find out about our leading Thai antitrust practice here.
Saudi Arabia competition authority blocks first merger
In a significant move, Saudi Arabia’s General Authority for Competition (GAC) has prohibited Delivery Hero’s planned acquisition of rival food delivery app The Chefz.
It is the first time GAC has blocked a deal under its merger control rules. Saudi Arabia adopted a new competition law, including a merger control regime, in 2019. Since then, it has publicly announced its intervention in only one other transaction – requiring remedies to address concerns over Uber’s purchase of ride sharing app Careem.
We do not yet know the full reasons for the Delivery Hero prohibition. According to a GAC release, the parties did not submit the information required to enable it to evaluate potential remedies. This suggests that a conditional clearance may have been possible, but that without the relevant data and materials to assess this, GAC instead moved to block the deal. We will know more when GAC publicly releases its full decision.
The development is in any event important. It signals that increased merger control enforcement in Saudi Arabia is on the cards.
Merging parties should take note that the filing thresholds under the regime are low: a mandatory notification is triggered where the parties’ combined global revenues exceed SAR100 million (approx. EUR24m). The local nexus is similarly broad. According to guidelines, GAC will consider it to be sufficient to establish a nexus if one or more of foreign undertakings has sales in Saudi Arabia. However, a nexus may be established even without sales in Saudi Arabia. It may be enough for the foreign undertakings to be active in foreign markets sufficiently closely connected to Saudi Arabia.
The regime is also suspensory, meaning that completion cannot take place before the authority has issued a clearance, or the statutory deadline of 90 calendar days has passed. In particular, parties to deals with a nexus to Saudi Arabia should consider any potential competition concerns early in the transaction process, and should be prepared for scrutiny.
EU releases draft guidelines on collective bargaining for solo self-employed
In early December, the European Commission (EC) published draft guidelines setting out how it will apply EU competition law to collective agreements entered into by solo self-employed people in order to improve their working conditions. The guidelines are part of a wider package which also includes a proposal for a Directive on improving working conditions in platform work and a Communication on harnessing the full benefits of digitalisation for the future of work.
The trigger for addressing this issue was the situation of so-called gig-workers, ie self-employed who work through online platforms. However, the scope of the draft is not limited to the online environment.
According to the draft, solo self-employed are those who do not have an employment contract or who are not in an employment relationship and who rely primarily on their own personal labour for the provision of services. Solo self-employed are in principle considered as “undertakings” under EU competition law and, if they negotiate their fees and other trading conditions collectively, there is a risk of infringing the EU prohibition against anti-competitive agreements.
The EC is concerned, however, that solo self-employed people are also often in a weak bargaining position. It believes that the guidelines will bring certainty by, as noted by Commissioner Vestager, “making clear when competition law does not stand in the way of these people’s efforts to negotiate collectively for a better deal”.
The draft guidelines categorise collective agreements into two groups:
- Collective agreements which fall outside EU competition rules. This would apply when the solo self-employed are in a position that is comparable to that of workers, ie where they are economically dependent on the counterparty to which they provide their services exclusively or predominantly. The guidelines also give other examples, such as solo self-employed who perform the same or similar tasks “side-by-side” with workers for the same counterparty or those who work through digital labour platforms.
- Collective agreements in which the EC will not intervene. This would be the case when solo self-employed have difficulties in influencing their working conditions because they are in a weak bargaining position.
The EC is asking for feedback on the draft by 24 February 2022.
More broadly, the draft guidelines bring into focus antitrust authorities’ recent interest in labour markets. Just three months ago, Commissioner Vestager announced that labour markets, including no-poach and wage-fixing agreements, will be a target for EC cartel enforcement.
This is consistent with the current enforcement pattern in the U.S. The DOJ has recently, for example, launched criminal investigations against aerospace executives and managers over an alleged conspiracy to restrict hiring and recruiting of employees. As Assistant Attorney General Jonathan Kanter noted, “[t]he Antitrust Division, together with our law enforcement partners, have prioritized rooting out conspiracies in labor markets”. In merger control, the FTC and DOJ are jointly seeking views on how U.S. merger guidelines should analyse the labour effects of markets. Other authorities (eg the Lithuanian Competition Authority) also intend to prioritise competition in labour markets in 2022.
India: pricing considerations for foreign direct investment
In India, foreign direct investment (FDI) is the only investment route that does not require prior investor registration with the Securities and Exchange Board of India, the statutory authority responsible for regulating India’s capital and securities markets.
However, the specific pricing guidelines which apply to FDI are wide in scope and merit careful and early review when considering any inbound investment or investment exit in India. They largely govern longer term foreign investment into the equity of Indian unlisted (private) companies and listed companies.
In particular, the purchase or sale of certain equity instruments by a foreign investor is subject to price caps and/or ceilings anchored to the central principle that a foreign investor should not benefit from a more advantageous pricing structure than that which is considered “fair market value”.
Read our India in Focus article for more information on how the pricing guidelines apply to the issuance and transfer of equity instruments to foreign investors and the transfer of equity instruments from foreign investors to Indian residents. It also details restrictions applicable to foreign investor access to equity instruments with so-called “optionality clauses” (or put options).
Digital & TMT
Australia considers a new regulatory regime for digital platforms
The Australian Competition and Consumer Commission (ACCC) may be set to join regulators around the world in proposing a bespoke regulatory regime for Big Tech players. The ACCC has announced that the fifth report in its five-year Digital Platforms Services Inquiry (DPSI), to be released in September 2022, will consider whether an ex-ante regime is necessary to regulate digital platforms in Australia.
Digital platforms have faced heightened scrutiny from the ACCC since 2017, when the Commission commenced its 18-month Digital Platforms Inquiry (DPI). The DPI’s final report, published in July 2019, concluded that reform was needed ‒ to better protect consumers, to improve transparency and to resolve power imbalances between Big Tech and other participants in digital markets.
Following the DPI report, the Government directed the ACCC to conduct the ongoing DPSI. Thus far, the DPSI has focused on specific sectors of the digital economy, publishing three reports on: online private messaging services, online retail marketplaces and app marketplaces in Australia. The ACCC has also published its final report in its digital advertising services inquiry. Now, the ACCC has announced that the DPSI’s September 2022 report will focus on whether ex-ante rules are needed generally to regulate the behaviour of particular digital platforms.
The ACCC’s announcement follows similar proposals by antitrust authorities in other jurisdictions. These include the UK’s proposed ex-ante regime, applying to digital platforms with “strategic market status”, and the European Commission’s draft Digital Markets Act, which would regulate digital firms deemed to be “gatekeepers”. Such proposals stem from a growing perception among regulators that traditional antitrust enforcement tools have not held up against the challenges posed by fast-moving digital markets.
ACCC Chair Rod Sims has also prefaced that, as part of broader reforms to Australia’s merger review processes, special rules may be introduced for acquisitions by large digital platforms. Sims has argued that the acquisition of start-ups by Big Tech players has significant, though difficult to foresee, implications for competition in new digital markets. He has suggested that large digital firms should therefore be subject to lower notification thresholds, with a lower threshold for competitive harm required for the ACCC to block the acquisition.
Many commentators regard Sims’ focus on digital platforms as a core part of his legacy. Sims will be replaced as ACCC Chair by former Gilbert + Tobin partner, Gina Cass-Gottlieb, in March 2022 following an unprecedented three terms in the role.
U.S. FTC sues to block Nvidia/ARM as the transaction faces close scrutiny by antitrust authorities across the globe
At the end of 2021 the U.S. Federal Trade Commission (FTC) sued to block U.S. chip supplier Nvidia’s USD40 billion acquisition of UK chip designer ARM.
The FTC is concerned that the transaction will enable Nvidia to control computing technology and designs that competing firms rely on to develop their own chips. The agency alleges that the merged entity would be able to stifle the innovation pipeline for next-generation technologies, including those used to run datacentres and driver-assistance systems in cars, allowing it to unfairly undermine Nvidia’s rivals. The FTC also highlights that Nvidia’s rivals routinely share competitively sensitive information with ARM, a neutral partner that is dubbed the “Switzerland” of the semiconductor industry, and that the proposed acquisition is likely to result in a “critical loss of trust in ARM”.
Remedies were reportedly offered by Nvidia, including a proposal to spin-off ARM’s licensing business as an independent entity, but were insufficient to address the FTC’s concerns.
The suit is the most significant merger challenge brought so far by the FTC under Chair Lina Khan, who took office in June 2021. The vote to challenge was unanimous, supported by both Democratic and Republican commissioners.
In particular, it shows the FTC’s willingness to challenge vertical deals, ie those involving firms at different levels of the supply chain. In its press release, the FTC noted that the lawsuit “should send a strong signal that [it] will act aggressively to protect [U.S.] critical infrastructure markets from illegal vertical mergers that have far-reaching and damaging effects on future innovations”. Just three months earlier, the FTC rescinded its approval of the 2020 guidelines on vertical mergers after Khan said they improperly suggested that efficiencies or procompetitive effects may rescue an otherwise anti-competitive transaction. And, in January, the FTC and Department of Justice launched a public inquiry aimed at modernising their vertical and horizontal merger guidelines in order to better detect and prevent anti-competitive deals.
The deal is not only making waves in the U.S. It is also under scrutiny in a number of other jurisdictions.
In the EU, for example, the European Commission (EC) is carrying out an in-depth merger control investigation.
In the UK, the deal is also undergoing a phase 2 review, with the added complexity that the Competition and Markets Authority (CMA) has been instructed by the UK government to carry out a public interest assessment of the transaction on national security grounds.
We know that the FTC, EC and CMA (as well as the antitrust authorities in Japan and South Korea) are cooperating closely with each other in relation to their respective investigations. Clearance is also reportedly required in China.
For Nvidia, getting the reviews/litigation wrapped up in a timely manner is crucial – a USD1.25bn break fee payment is on the cards if the deal does not close by September 2022.
European Commission’s final report on consumer Internet of Things sector inquiry encourages industry action
The European Commission (EC) sector inquiry final report and accompanying staff working document set out the EC’s antitrust concerns in the markets for consumer Internet of Things (IoT) related products and services in the EU.http:
In the context of high barriers to entry and a few vertically integrated players, the EC’s main areas of potential concern include:
- Certain exclusivity and tying practices in relation to voice assistants, as well as practices limiting the use of different voice assistants on the same smart device
- The control of user relationships by voice assistants and smart device operating systems given their intermediary position between users and smart devices / consumer IoT services and their key data-generation and collection role
- The extensive access to and accumulation of data, including information on user interactions with third-party smart devices and consumer IoT services, by providers of voice assistants, allegedly enabling them to leverage into adjacent markets
- The lack of interoperability in the consumer IoT sector due to technology fragmentation and the prevalence of proprietary technology, leading at times to the creation of “de facto standards”
All the information collected will undoubtedly feed into the EC’s digital regulatory activity and strategy, including the scope of the proposed Digital Markets Act regime.
And, while the EC has not formally opened any related antitrust investigations, saying they “would have to be based on a case-by-case assessment”, the inquiry will guide any future enforcement.
Commenting on the report, Commissioner Vestager also notes that the EC is “hopeful that it will stimulate companies to pro-actively address those concerns”. Market players are on notice to review their commercial practices to ensure compliance with antitrust law.
EU General Court annuls European Commission’s EUR1.06bn fine on Intel
In 2009, the European Commission (EC) imposed a fine of EUR1.06bn on Intel for abusing its dominant position. Now, after a second look at the case, the General Court has overturned the part of the EC’s decision that concluded Intel restricted competition through a conditional rebates scheme.
The court ruled that the EC’s analysis was incomplete and did not make it possible to establish to the requisite legal standard that the rebates in question were capable of having, or likely to have, anti-competitive effects. And the court annulled the fine in its entirety.
Watch out for our alert on the case, which will look in particular at what the judgment means for the assessment of conditional rebates in practice.
European Commission pushes sustainability agenda in updated climate, environmental protection and energy State aid guidance
At the end of 2021 the European Commission (EC) endorsed its hotly-anticipated new guidelines on State aid for climate, environmental protection and energy.
The guidelines were adopted in January and will replace the existing version from that point. They support projects for environmental protection, including climate protection and green energy generation, setting out when State aid in these areas will be considered compatible with the single market.
The updated rules reflect recent regulatory changes (including the Fit for 55 package) as well as priorities and strategy provided in the European Green Deal. They set out a broad catalogue of investments and technologies that Member States can support in order to deliver the European Green Deal. This includes sections on reduction or avoidance of greenhouse gas emissions and measures supporting decarbonisation.
The rules also cover aid for the prevention or reduction of pollution and introduce changes to the current rules on reductions on certain electricity levies for energy intensive users.
Updating these guidelines was a key part of the EC’s response to the wider debate, started in autumn 2020, on ensuring that EU competition policy supports the objectives of the European Green Deal and sustainability initiatives. Revisions to other materials, such as the General Block Exemption Regulation, will follow.
Beyond State aid, the EC and many other antitrust authorities both in and outside the EU are considering how best to advise businesses on how they can cooperate on green and sustainability projects. Most recently, the German Federal Cartel Office examined two separate initiatives (to introduce living wages in the banana sector and to expand an animal welfare initiative) to ensure compatibility with antitrust rules. Later this year the EC plans to adopt revised guidelines on horizontal cooperation agreements which will take sustainability arrangements into account.
We expect to see many more developments during the course of 2022.
Antitrust authorities’ headlights on electric vehicle charging markets
With many countries set on a path to meet ambitious climate targets, it is no surprise that national electric vehicle (EV) charging markets are under review. Antitrust authorities have been playing their part, reviewing coverage, choice, trust and pricing. Some have put pressure on their governments to introduce competition and investment into the market. And some are clearly prepared to use their antitrust and merger control toolkit where necessary. Here is a round-up of some of the main developments:
- The UK. Ahead of a 2030 ban on the sale of new petrol and diesel cars in the UK, in July 2021 a Competition and Markets Authority (CMA) EV charging market study made a number of recommendations to the UK government to assist roll-out at motorway service stations, on-street and in rural areas. In addition, a CMA antitrust enforcement investigation has driven Gridserve, the owner of chargepoint operator Electric Highway, to offer commitments not to enforce certain exclusive rights in its long-term contracts with three motorway service station operators. The CMA is expected to make a final decision as to whether those commitments adequately open up competition and investment in the market shortly. Most recently, in December 2021, the CMA fed into the government’s Future of Transport regulatory review. The CMA maintained its position that government involvement in the EV market is “essential” to meet the UK’s net-zero timeframe, suggesting a new statutory obligation for local authorities to plan for and provide charging infrastructure.
- Germany. In October 2021, the Federal Cartel Office (FCO) sector inquiry progress report called for more competition in German EV charging infrastructure. The FCO too looks to the government for answers, in particular to ensure open and non-discriminatory access to public spaces and funding through public tenders. The FCO also envisages antitrust and merger control enforcement keeping dominant operators in check.
- Austria. The Austrian Federal Competition Authority launched a sector inquiry in November 2021. Its review of the electric mobility market will include the expertise of the E-Control, structural framework conditions and necessary government interventions.
- Denmark. The national antitrust authority launched a sector inquiry in October 2021. In particular it is concerned about considerable variation in the cost of charging from publicly available charging stations.
- Norway. The national antitrust authority launched a study into the market for rapid and ultra-rapid charging this month. It has also introduced an obligation on the five largest EV charging operators to inform it about all mergers and acquisitions they are involved in, including acquisitions of non-controlling minority shareholdings.
European Commission concludes forex cartel investigations with further fines
In early December 2021, the European Commission (EC) imposed fines totalling EUR344 million on a number of banks for participating in a foreign exchange (forex) spot trading cartel.
The EC found that certain traders in charge of forex spot trading of G10 currencies exchanged sensitive information and trading plans. According to the EC, they occasionally coordinated trading strategies through an online professional chatroom called ‘Sterling Lads’. The EC concluded that these exchanges enabled the traders to make informed market decisions on whether and when to sell or buy currencies.
The EC also found that the information exchanges led to some coordination practices such as “standing down”, in which traders temporarily refrain from trading so as not to interfere with others.
UBS blew the whistle, avoiding an approx. EUR94m fine. Three banks (HSBC, Barclays and RBS) cooperated with the EC under the settlement procedure and received reduced fines. The case was a ‘hybrid’ settlement case: Credit Suisse refused to settle and followed the ordinary procedure. It was fined EUR83.3m.
This is the second ‘hybrid’ settlement case where the EC has simultaneously adopted decisions under the settlement and ordinary procedure. This approach is likely the result of the European Court of Justice (ECJ)’s 2019 ICAP ruling in which the court found that adopting settlement and non-settlement decisions at different times may in some cases infringe the presumption of innocence in relation to the non-settling firm(s).
Parties should not, however, expect all EU hybrid settlement cases to follow this path. A later ruling from the ECJ endorsed the EC’s approach of issuing the settlement decision before the infringement decision against the non-settling party/parties, provided that the EC takes sufficient precautions in the drafting of the settlement decision so as not to breach the non-settling company’s rights of defence. Going forward, the EC therefore has the option of either route.
The infringement decision is the EC’s third in the forex spot trading market, wrapping up its investigations in this area. It marks the EC’s sixth cartel investigation in the financial sector since 2013. And financial markets look set to remain on the EC’s radar: commenting on the case, Commissioner Vestager underlined that the EC remains committed to ensuring a “sound and competitive financial sector that is essential for investment and growth”.
European Commission blocks merger for the first time since 2019
January brought the long-awaited European Commission (EC) decision on the proposed acquisition of Daewoo Shipbuilding & Marine Engineering (DSME) by Hyundai Heavy Industries Holdings (HHIH), both South Korean shipbuilding companies.
The EC prohibited the transaction, concluding that it would have created a dominant position in the worldwide market for the construction of large liquefied gas carriers, as well as leading to higher prices for EU customers and a reduced number of suppliers. The EC noted that it received feedback from “a large number” of customers, competitors and other third parties who were concerned about the transaction. Unusually, DSME and HHIH did not formally propose remedies to address the EC’s concerns.
The DSME/HHIH case is the first EC block since 2019 and its tenth in the last ten years.
The case is unique for having an extremely long review period. HHIH submitted a filing in November 2019. A month later the EC initiated an in-depth phase 2 review, which was suspended three times after HHIH failed to provide the EC with information in a timely manner. An investigation period stretching over two years is particularly unusual. But phase 2 reviews with (sometimes multiple) suspensions and extensions remain a growing trend at EU-level. Parties to deals which enter in-depth EC investigations should be alive to the possibility of delays which might impact the overall transaction timetable.
The prohibition is also a further example of recent EC intervention in mergers in the transport sector. In 2021 another shipbuilding deal ‒ Fincantieri’s acquisition of Chantiers de’Atlantique – was abandoned during phase 2 as a result of EC concerns. Two airline mergers (Air Canada/Transat and IAG/Air Europa) suffered a similar fate. You can read more about this, together with other trends in global merger control enforcement, in our upcoming report.
A&O antitrust team in publication
Recent publications by members of our global team include:
- Noah Brumfield (partner, Washington, D.C. and Silicon Valley): Integrating Competition Compliance Into the Business; CPI Antirust Chronicle, November 2021
- Todd Fishman (partner, New York): Criminal Antitrust in 2022: Two Cases Likely To Frame the New Agenda, originally published in the New York Law Journal, 11 January 2022
- Florence Ninane (partner, Paris) and Noemie Bomble (associate, Paris): Droit de la concurrence: la responsabilité au sein des groupes de société évolue / Liability based on competition law within corporate groups evolves, article published in L’AGEFI, 27 January 2022
About your editor
Stefanie is a counsel in our Sydney competition team. She advises domestic and foreign clients on the Australian competition law aspects of proposed mergers and joint ventures, obtaining clearances from the Australian Competition and Consumer Commission (ACCC) and on investigations and enforcement matters. Another major aspect of her practice is advising infrastructure owners and access seekers in relation to access arrangements for essential infrastructure. She has been involved in some of Australia’s landmark market inquiries and mergers, and also has extensive experience of acting on multi-jurisdictional matters, including advising on how to navigate newly-established competition regimes across the Asia Pacific region.
Stefanie advises clients in a range of sectors including technology, media, health, energy and resources, ports, rail, financial services, agriculture and food manufacturing. She holds a masters of global competition law from the University of Melbourne and is the author of ‘The ACCC and Social Media’ in ‘Social Media and the Law’, the LexisNexis analysis of the impact of social media on various areas of law.
Spotlight on Stefanie
A typical working day in Sydney…. The day usually starts with a run through of the emails that have come in overnight, and if necessary trying to catch our European colleagues before the end of their day. During Covid the Sydney competition team has been meeting online twice a week to help us stay connected. We had very much hoped to be back in the office by now, but it looks as though we will be WFH for a while longer yet.
If I hadn’t become an antitrust lawyer, I would…. This is the hardest question to answer! Going right back to the start of my career no doubt I would have settled in one of my other grad rotations, banking or M&A. However, I’m not sure I would have lasted in either.
The best career advice I’ve been given is…. It helps to really care about your clients. They are often stretched and balancing different priorities. Make their lives easy and make them look good!
The most interesting case I’ve worked on …. Was the sale of Carlton United Breweries, Australia’s largest beer manufacturer. So interesting in fact that I was fortunate to act for its purchaser twice, firstly for SABMiller in 2010, and again for Asahi in 2019.
For me, being a good lawyer/advisor means…. Being able to guide a client through a matter from beginning to end with as few surprises as possible. And when those surprises do arise, identifying a strategy for resolving them before they become problems.
Something I’d like to do but haven’t yet done is…. Visit New York.
My ideal weekend in a sentence…. Seeing friends, squeezing in some exercise and spending time with my family.
My typical weekend in a sentence…. Arguing with a small version of myself aka my 4 year old son.
Something that might surprise you about me is…. In my younger years I was a volunteer surf lifesaver.
My top tip for visitors to Australia (now that travel possibilities are opening up a little) is…. Come in Autumn or Spring. Push through the jet lag for the first day and you’ll be right. In Sydney make sure you do the Bondi to Bronte walk, catch the ferry to Manly and have a long lunch by the harbour.