At a Crossroads in EU Merger Control:Can a Rethink on Foreign Takeovers Address the Imbalances of Globalisation?

In the face of momentous change in global politics – which has already begun to usher in a new age of nationalism, populism and protectionism – the European Commission continues to afford primacy to its competition-based approach to merger assessment. However, the Commission is facing increasing pressure from some EU Member States to respond to the emerging challenges of globalisation by adopting a more protectionist industrial strategy that would shelter strategic industries from ‘unwanted’ foreign takeovers. Not since the global financial crisis has the ‘pressure to protect’ been so palpable, and this renewed scrutiny will test the Commission’s resolve to continue enforcing its strict competition-based approach. This article reflects on the recent developments that have left EU merger control at a crossroads in terms of how it proceeds to react to anti-globalisation sentiment. It also examines a radical proposal to task the Commission with the role of analysing foreign takeovers that arise in the EU’s strategic sectors. It finds compelling evidence to suggest that the existing regime provides a legal basis for the Commission to afford greater consideration to public interest factors in merger cases, which would allow it to undertake this task in lieu of legislative reform

Extending ‘National Security’ in Merger Control and Investment: A Good Deal for the UK?

As part of preparations for life after Brexit, the Government of the United Kingdom has introduced wide-ranging proposals for strengthening its powers to scrutinise mergers, acquisitions and investments that raise national security concerns in specific sectors. The proposals seek to extend the scope that the government currently has to intervene in transactions in order to ensure the national security of the UK, while simultaneously minimising any adverse effect these reforms may have on predictability and procedural transparency. Yet, while the government’s proposal document makes all the right noises with regard to investor certainty, the resurrection of ministerial decision-making under the proposed reforms could yet act to deter foreign direct investment (FDI) by creating perceptions of an assessment process based on subjective criteria

Sparking Interest in Archival Research

The power point slides of David Reader's presentation on November 8, 2019. The educator and the use of archival materials (logistics, assignments, and experience)

Submission to Ofcom: Invitation to comment for public interest test on the proposed acquisition of Sky plc by Twenty-First Century Fox, Inc.:Consultation response from the Centre for Competition Policy

The authors welcome the opportunity to respond to Ofcom’s invitation to comment on the application of the public interest test to the proposed Sky/21st Century Fox transaction. There already exists an abundance of evidence relating to Sky’s news production and distribution, as well as the prominence of its news content and that of the other news companies run by its senior management, which raise media plurality concerns in relation to this deal.1 We trust that Ofcom will be diligent and creative in assessing the risks to media plurality in terms of citizens’ access to news and information, going well beyond consumption data and perhaps revising its “share of references” metric. However, the role of media in our society is not solely the provision of news and the representation of various groups and viewpoints within that news. It is also to provide a variety of content through which our norms, values, and identities are negotiated. Therefore our contribution will focus on two other issues that we believe are crucial to the media plurality public interest test and have broader implications: (1) Sky’s position as an internet service provider (ISP), and (2) the relationship between this public interest test and the concurrent “fit and proper” test. The response affords separate consideration to (3) the scope of the ‘commitment to broadcasting standards’ public interest ground

UK Competition Policy Post-Brexit: Taking back control while resisting siren calls

A notable effect of ‘Brexit’ is that it will create new freedoms for the UK to shape its competition policy outside the EU, but these freedoms may come at a cost and could prove damaging to competitive markets. In merger control, the UK will be free to employ more frequent public interest interventions (especially for foreign acquisitions), but these could be misused and create uncertainty. In State aid, there will be pressure for greater protection of UK industries through State interventions, but such freedom will be constrained by the UK’s new trade arrangements and could prove wasteful. In antitrust, the UK will be free to set its own path, for example by fully criminalising its cartel enforcement regime, but cooperation with other EU competition agencies will dwindle and the UK faces difficulties in continuing to benefit from the significant level of fines currently imposed by the European Commission on its behalf. The paper concludes that any immediate changes to policy should be avoided and that it may even be necessary to legislate to limit the exercise of new freedoms. We also note how, at current EU/UK levels of enforcement, the Competition and Markets Authority’s resource requirement may have to be doubled

Revisiting the role of the public interest in merger control

In the light of advances in economic theory and harmonisation initiatives, most jurisdictions now adopt a competition effects-based approach to merger control assessments. Given the emphasis that these assessments now afford to competition criteria, it might be said that the influence of wider ‘public interest’ considerations has become increasingly marginalised. Nevertheless, despite this marginalisation, most domestic merger regimes continue to reserve a role for public interest criteria, albeit a very restricted one in most cases. This has fuelled an on-going debate regarding the wisdom and legitimacy of considering public interest criteria in the merger assessment process. One argument, often cited by competition purists, is that pursuing a strict adherence to competition principles will deliver optimal long-term benefits for both consumers and the public at large. The main counter-argument has centred on the perceived inability of competition to respond to short-term public interest concerns which, if left unaddressed, may have lasting implications on fundamental interests such as employment, public health and democracy. Important questions therefore transpire: Is merger control an appropriate realm in which to address public interest concerns, or can these be dealt with more effectively via alternative policy means? If it is appropriate, how should public interest criteria be framed within the merger control legislation, and who should be tasked with applying this criteria? This thesis adopts legal and empirical research methods to scrutinise the role that states have afforded to the public interest in modern-day merger control. By drawing insights from merger regimes across the world, the thesis proposes a framework for accommodating public interest criteria effectively within merger control

How statutory duties shape the decision making of an economic regulator: Insights from the energy regulatory community, past and present

This article is concerned with how statutory duties structure regulatory decisions. Rather than focusing on the role of the courts, we explore statutory interpretation by a regulator as a quasi-autonomous exercise, with external influences and internal norms and customs. To investigate this further, we conducted a series of semi-structured elite interviews with senior members of the energy ‘regulatory community’, past and present. Energy regulation has been selected as a case study due to the controversies in recent years over the legitimate limits of economic regulation, as successive governments have imposed broader public interest goals on the regulator, resulting in a proliferation of statutory objectives. This increased complexity has arguably obscured the appropriate contours and rationales of economic regulation. Nevertheless, it is unrealistic to completely separate regulatory policy and politics