CMA secures 4 year director disqualification order in pharma investigation

 

CMA secures 4 year director disqualification order in pharma investigation

The Competition and Markets Authority has obtained a disqualification undertaking from Mr Pritesh Sonpal, a director of Lexon (UK) Limited (Lexon).  This follows the CMA’s cartel infringement decision concerning the supply of nortriptyline tablets which are used in the treatment of depression.

The CMA found that pharmaceutical wholesaler Lexon had violated Article 101 of the TFEU and the Chapter I prohibition of the Competition Act 1998 by participating in an illegal information exchange.

The undertaking bans Mr Pritesh Sonpal from acting as a director or receiver of a company, or an insolvency practitioner for a period of four years.

The latest order follows the increasing use of disqualification orders by the CMA following earlier criticism that the powers were not being pursued with vigour.  Since the UK competition authority was given the director disqualification power in 2003, the CMA has obtained disqualification undertakings from more than 20 individuals. The majority have been obtained since 2016.

https://www.gov.uk/cma-cases/suppliers-of-antidepressants-director-disqualification

CMA updates mergers guidance to reflect the National Security and Investment Act 2021

 

CMA updates mergers guidance to reflect the National Security and Investment Act 2021

The Competition and Markets Authority (CMA) has issued an updated version of its mergers guidance (CMA2) to take into account the coming into force of the National Security and Investment Act 2021 (NSIA 2021) on 4 January 2022.

The NSIA 2021 introduces a new national security and investment regime within the Department for Business, Energy and Industrial Strategy (BEIS).  This replaces the powers of the Secretary of State to intervene in mergers on national security grounds under the Enterprise Act 2002.

The following changes, reflected in CMA2, are of note:

•                  The scope of public interest interventions, under section 42 of the Enterprise Act, no longer refers to "national security" as one of the public interest considerations that the Secretary of State may take into account when issuing a public interest intervention notice (PIIN).

•                  Defence mergers can no longer give rise to a special merger situations, allowing intervention under section 59 of the Enterprise Act.

•                  The CMA may share confidential information with the Secretary of State and the Investment Security Unit (ISU) in BEIS to facilitate coordination, as may be appropriate, in cases being investigated in parallel under the Enterprise Act and NSIA 2022.

•                  The CMA and the ISU expect to coordinate to manage interactions between these different regimes.

The previous statutory framework continues to apply in all cases where a formal Phase 1 or Phase 2 investigation has started and cases where the Secretary of State has issued a PIIN.  It will also apply in cases where a trigger event occurs prior to 4 January 2022 and in relation to which the Secretary of State issues a PIIN after 4 January 2022.  The revised guidance will be applied to all other mergers from 4 January 2022 onwards.

Although the substantive provisions of the NSIA 2021 come into force on 4 January 2022 it contains retroactive powers to call in for review as of that date (or potentially up to five years thereafter) any qualifying transaction completed between 12 November 2020 and the commencement date.  

The new NSIA 2021 means that it is essential for investors to review its potential application and the interface with mainstream merger control for all transactions completed from 12 November 2020 which could potentially raise national security concerns.

The GDPR is not just for Christmas…but we have a new Information Commissioner

 

The GDPR is not just for Christmas…but we have a new Information Commissioner

“Unlike planning for the Y2K deadline, GDPR preparation doesn’t end on 25 May 2018 – it requires ongoing effort”.

And so quipped the then Information Commissioner Elizabeth Denham in her 2017 blog at:  https://iconewsblog.org.uk/2017/12/22/gdpr-is-not-y2k/

Its now ‘all change’ at the helm of the ICO.

The Department for Digital, Culture, Media and Sport has confirmed that Mr John Edwards has been appointed the UK's new Information Commissioner by Letters Patent.  His five-year term of office will begin on 3 January 2022.

Mr Edwards brings wide experience in information rights law.  He was formerly New Zealand’s Privacy Commissioner.  He also has broad data regulatory experience, as a Privacy Commissioner and also from 20 years in legal practice.

Under the Data Protection Act 2018 (DPA 2018), the Information Commissioner is appointed by Her Majesty the Queen by Letters Patent on the basis of fair and open competition and on the recommendation of ministers.

Mr Edwards’ appointment was approved by the Digital, Culture, Media and Sport Select Committee after a pre-appointment hearing on 9 September 2021.

The role and powers of the Information Commissioner are set out in the UK GDPR and the DPA 2018.  In September 2021, the government announced plans for wide reforms to the UK's data protection regime, including the Information Commissioner's Office.

https://www.gov.uk/government/news/john-edwards-is-confirmed-as-the-new-information-commissioner

“Unlike planning for the Y2K deadline, GDPR preparation doesn’t end on 25 May 2018 – it requires ongoing effort”.

And so quipped the then Information Commissioner Elizabeth Denham in her 2017 blog at:  https://iconewsblog.org.uk/2017/12/22/gdpr-is-not-y2k/

Its now ‘all change’ at the helm of the ICO.

The Department for Digital, Culture, Media and Sport has confirmed that Mr John Edwards has been appointed the UK's new Information Commissioner by Letters Patent.  His five-year term of office will begin on 3 January 2022.

Mr Edwards brings wide experience in information rights law.  He was formerly New Zealand’s Privacy Commissioner.  He also has broad data regulatory experience, as a Privacy Commissioner and also from 20 years in legal practice.

Under the Data Protection Act 2018 (DPA 2018), the Information Commissioner is appointed by Her Majesty the Queen by Letters Patent on the basis of fair and open competition and on the recommendation of ministers.

Mr Edwards’ appointment was approved by the Digital, Culture, Media and Sport Select Committee after a pre-appointment hearing on 9 September 2021.

The role and powers of the Information Commissioner are set out in the UK GDPR and the DPA 2018.  In September 2021, the government announced plans for wide reforms to the UK's data protection regime, including the Information Commissioner's Office.

https://www.gov.uk/government/news/john-edwards-is-confirmed-as-the-new-information-commissioner

CMA sends statement of objections to online retailer over suspected resale price maintenance

 

 

CMA sends statement of objections to online retailer over suspected resale price maintenance

The Competition and Markets Authority (CMA) has sent a statement of objections to Dar Lighting Limited (Dar) alleging breach of Chapter I of the Competition Act.  It suspects that Dar has prevented retailers from discounting the prices of domestic lighting products produced by Dar and supplied online between 2017 and 2019.

The CMA did not send its SO particular retailers.  In this case it has used Rule 5(3) of the Competition Act Rules, which allows it to address a proposed infringement decision to fewer than all the persons who are or were party to the relevant agreements.

This is not the first time that the CMA has targeted resale price maintenance in the lighting product sector.  In 2017, the CMA fined the National Lighting Company £2.7 million for resale price maintenance.  In that investigation the CMA issued warnings letters to other suppliers in the sector.

https://www.gov.uk/cma-cases/domestic-lighting-suspected-anti-competitive-practices-concerning-resale-price-maintenance

CMA orders Facebook to sell Giphy

 

CMA orders Facebook to sell Giphy

 

The CMA has published its final report on its in-depth inquiry into the completed acquisition by Facebook, Inc (now Meta Platforms, Inc ) of Giphy, Inc.

The CMA has confirmed its provisional finding that a full divestment of Giphy is the only solution to the substantial lessening of competition it has identified.

Facebook is by far the largest provider of social media and messaging services in the UK. Giphy is the world's leading provider of free GIFs.

Given the multi-sided nature of the relevant markets, the CMA raised competition concerns in social media and in display advertising arising from the elimination of a potential competitor.

Prior to the CMA’s intervention, there had already been a high degree of integration.  Facebook is being required to restore certain Giphy activities to ensure that it will have the necessary management and technical assets to enable it to be an effective competitor, post-divestment to a purchaser to be approved by the CMA.

This is the first time that the CMA has prohibited outright a merger by a Big Tech firm

 

https://www.gov.uk/government/news/cma-directs-facebook-to-sell-giphy

UK and France open competition probes into ferry operators

 

UK and France open competition probes into ferry operators

The UK Competition and Markets Authority (CMA) and the French Competition Authority have launched parallel competition investigations into capacity sharing agreements for freight shipment services of P&O Ferries and DFDS.

The French investigation followed two weeks after a similar probe was opened on 12 November by the CMA into the same arrangements.

DFDS and P&O Ferries transport more than 2.5 million trucks across the English Channel each year.

The operators have claimed that the arrangements are essential to ensure the continued viability of the cross-channel UK-EU trading route.  According to the operators their cooperation arrangements ensure that drivers have access to departures every 36 minutes.  The parties claim that their cooperation will reduce wait times while preserving the resilience of these routes.

The regulators have not formally announced whether they are cooperating in their investigations but it would be surprising if talks were not underway. A ‘pick up the phone’ culture of information exchange between competition authorities conducting similar investigations is by no means unusual.  Brexit should not change that despite the current frostiness in political relations.  There is an obvious need to coordinate theories of harm and remedies to avoid inconsistent results which could compromise each regulator’s objectives.

However, different results are not unheard of.  In 2013 the Competition Commission blocked Eurotunnnel’s acquisition of SeaFrance when the French Competition Authority approved the transaction. 

Phase II review of NVIDIA/ Arm deal on national security grounds

 

Phase II review of NVIDIA/ Arm deal on national security grounds

The Secretary of State for Digital, Culture, Media and Sport has instructed the Competition and Markets Authority (CMA) to carry out an in-depth investigation of the proposed acquisition of Arm by NVIDIA on competition and national security grounds.

The Secretary of State has powers under the Enterprise Act 2002 to intervene in certain mergers on public interest grounds.

NVIDIA develops and supplies processor products.  Arm licenses intellectual property for processing units, in particular to semiconductor chipmakers and Systems-on-Chip developers.

In its Phase I investigation the CMA identified that the transaction raises the possibility of a substantial lessening of competition across four key markets - data centres, Internet of Things (IoT), the automotive sector and gaming applications.

The CMA is leading a Phase II investigation covering both competition and national security grounds.

The CMA has 24 weeks (subject to a possible eight-weeks extension) to conduct this investigation.

Separately, this week the UK government has published guidance clarifying what types of transactions will be subject to new national security provisions.  These require that the government must be informed about acquisitions of companies that do business in the UK within 17 sectors deemed to be of “national importance”, including artificial intelligence, data infrastructure and defence.

In October 2021 the European Commission launched a Phase II merger investigation over similar (competition) concerns that the merged entity would have an incentive to restrict its rivals from accessing Arm’s technology.

https://www.gov.uk/government/news/digital-secretary-asks-cma-to-carry-out-further-investigation-into-nvidias-takeover-of-arm