Below-Threshold Mergers: Global Antitrust Scrutiny

In this episode of "Fierce Competition," Skadden antitrust attorneys Niels Baeten, Joseph Rancour and Julia Zhu delve into merger enforcement, focusing on transactions that fall below regulatory thresholds but are still investigated by antitrust authorities around the world. The discussion explores which jurisdictions have the authority to review a transaction, how enforcement is implemented and potential future developments in merger oversight.

---------------

Antitrust regulators throughout the world often use their authority to review transactions that fall below filing thresholds.

Host Julia Zhu invites Skadden colleagues Joseph Rancour and Niels Baeten to discuss how these deals fit in the global regulatory picture. The three antitrust attorneys cover ways in which enforcement is carried out, how deal-makers know if their transactions are called in and what the future holds in this area. Joe describes the legal frameworks and enforcement activities in the U.S., Niels discusses the environment in the EU and U.K. — including implications of the European Court of Justice’s landmark ruling in Illumina/Grail — and Julia covers the view among regulators in the Asia-Pacific region.

Top takeaways from this episode

Illumina/Grail: The European Court of Justice ended the European Commission’s practice of reviewing transactions that fell below EU and any national member state thresholds. This issue will be a key focus for the European Commission in the coming months.

U.S. Landscape: Regulators can and do investigate transactions that fall under the Hart-Scott-Rodino Antitrust Improvements Act (HSR Act) thresholds if they pose competition concerns.

SAMR’s Power: China’s antitrust regulator, the State Administration for Market Regulation (SAMR), has indicated that it will pay close attention to “killer acquisitions” involving pharmaceuticals and platform economy.

Japan and South Korea: Japan has expressed concerns about “killer acquisitions,” but when a voluntary filing is initiated, regulators have employed a measured approach. South Korea, on the other hand, pursues merger enforcement aggressively — evident in high-profile cross-jurisdictional cases, including those that fall below the threshold.

India: Its competition commission indicates that it has no authority to review below-threshold transactions, but it can initiate an ex officio investigation to assess whether thresholds are met or not.