Another country that is currently revising its competition law is Poland. At the beginning of this year, the Polish government published a draft law amending the Act on Competition and Consumer Protection. The draft was prepared as part of the implementation of the EU's ECN+ Directive into Polish law. According to the law firm Kochaski & Partners, it provides for the introduction of fundamental changes to the Polish antitrust law including, among others, extending the liability of entrepreneurs' associations and the liability for violation of competition rules. However, it is currently difficult to judge what shape the proposed provisions will ultimately take and how they will affect transactions in the technology sector in particular, Kochaski & Partners said. There are also plans to extend the obligation to provide information and documents at request of the president of the Polish Office of Competition and Consumer Protection (UOKiK).
Denmark is also considering new regulations on competition in the tech industry. Although no new competition law regulation aimed specifically at tech has yet been announced, the Danish government presented a paper in August 2021 with its thoughts on how tech companies are challenging traditional competition law and a couple of initiatives on how to solve this challenge, said the Danish law firm Bech-Bruun.
In Portugal, there are currently no anticipated legislative changes to competition rules aimed at the challenges of digital and tech cases. According to the Portuguese law firm SRS Advogados, this is because a focus on digital markets and tech companies has been part of the Portuguese Competition Authority's (PCA) competition policy priorities since 2018. In 2018, the PCA had published an issues paper and a sector inquiry on financial technology (fintech), followed one year later by an issues paper on digital ecosystems, big data and algorithms. In 2020, an inter-departmental taskforce was created in Portugal with specific focus on digital merger control and antitrust cases. SRS Advogados said that the PCA has once more highlighted investigating signs of abuse and collusion in the digital environment as one of its three main priorities for 2021.
As a general trend, there has been a tendency for jurisdictions to change the threshold values for mandatory filings to reflect the rising prices in M&A transactions and also ensure a manageable caseload for the competition authorities.
Two examples of this are in Germany and Austria: the German government adapted its competition law at the beginning of this year, while Austria is still working on new regulations. Both countries have increased or will increase the thresholds for a mandatory filing, leading to a material reduction of the number of filings to the respective national competition authorities. In Germany, the number of filings is expected to drop by as much as 40% or even 50%.
Many jurisdictions, such as Germany and Austria, have introduced thresholds based on the transaction value and the domestic effect of a transaction. Another significant trend is that laws and regulations are being amended in a way that allows competition authorities to obtain jurisdiction over merger control cases that are not caught by the turnover-based merger control thresholds. These amendments are of particular relevance for the tech industries. In Germany, for example, a new Section 39a was introduced into the 'Act against Restraints of Competition' that allows the competition authority to request a merger control filing for mergers that do not fall under the thresholds but fulfil certain other requirements. This may affect, among other things, the acquisition of start-ups by tech giants that would not otherwise be caught by the merger control thresholds.
Similarly, the European Commission has issued guidelines on the interpretation of Article 22 of the EU Merger Regulation that specify under what circumstances the Commission can pick up cases that would normally fall under the jurisdiction of a member state but do not meet the turnover-based thresholds of the EU Merger Regulation. These guidelines allow the Commission to investigate cases where the member states own thresholds are not met but the transaction nevertheless threatens to significantly impede effective competition in the internal market. This could be used to capture so-called 'killer acquisitions' - where large companies acquire innovative start-ups and in so doing remove a potential new competitor.
"Recent examples of this power being used include Ireland, France and the Netherlands referring the Facebook/Kustomer transaction to the European Commission for investigation, despite the relevant national merger thresholds not being met," said Michael Reichof Pinsent Masons. "France also chose to take advantage of the EU referral mechanism in relation to biotech company Illuminas acquisition of Grail, which is now under review by the Commission."
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European lawmakers and competition authorities focus on tech transactions - Out-Law.com
