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原创 2016-10-09GCR反垄断实务评论

[导读：2016年10月7日，据GCR报道，欧盟委员会正在就引入非营业额合并控制标准问题进行咨询，而大数据标准是本次咨询的重要内容。欧盟委员会表示，欧盟合并规则中的营业额申报标准有效性已经引起了质疑，有建议称，可针对特定行业（例如数据服务或者医药行业）某些类型的交易制定可选择的标准。在上周于布鲁塞尔召开的会议上，欧盟委员会竞争专员Margrethe Vestager表示：“经营者可能仅为了获取竞争者的数据而进行收购，即使其还未设法将数据转化成利润。因此，我们正在考虑是否需要从具有价值的数据方面对合并进行考量，即使取得数据的经营者还未取得高额利润。”本次咨询将于2017年1月13日结束，可以看出，随着全球信息化的进一步发展，大数据在竞争法领域的作用愈发显著。（本文源自GCR网站。导读系本公众号原创，转载请注明文字出自本公众号。）]

The European Commission is consulting on the introduction of non-turnover based merger control criteria to address a possible “enforcement gap” under its current regime.

The commission today confirmed it is seeking feedback on the effectiveness of its current merger control procedures, after admitting that potentially anticompetitive deals may be slipping under its radar – especially in the digital and pharmaceutical sectors.

“Questions have been raised regarding the effectiveness of the purely turnover-based notification thresholds of the EU Merger Regulation,” the commission said in a statement.

“There have been suggestions to complement the existing thresholds by other alternative criteria in order to capture some types of transactions in certain sectors, for example digital services and pharmaceuticals.”

The consultation is considering possible alternative criteria such as transaction value or the value of target companies’ datasets.

Acquisitions in the digital sector often attract billion-euro price tags, but involve companies featuring turnovers that fall beneath current thresholds, even though they have significant growth potential and could pose risks to competition, the commission said.

“Similar issues may arise in the pharmaceutical industry if established players purchase highly valued biotech companies that own products under development that have not yet been marketed and therefore do not generate significant turnover,” the commission said.

EU competition commissioner Margrethe Vestager has frequently mentioned a possible alteration of DG Comp’s merger regime in recent months.

At a conference in Brussels last week, Vestager said datasets could have an important bearing on a merger’s effect on competition.

“A company might even buy up a rival just to get hold of its data, even though it hasn't yet managed to turn that data into money,” she said at the time. “We are therefore exploring whether we need to start looking at mergers with valuable data involved, even though the company that owns it doesn't have a large turnover.”

Digital companies collect huge amounts of user data, which allows them to better understand their customers’ behaviour and derive income from marketing and advertising. However, it often takes years for such companies to generate significant profits.

Facebook's $19 billion acquisition of WhatsApp in 2014 is regularly highlighted as an example of the merger control regime’s limitations: the deal did not have to be notified to DG Comp because WhatsApp’s turnover wasn’t large enough, although the commission subsequently assessed and cleared the transaction after the parties voluntarily notified it.

“A merger that involves this sort of company could clearly affect competition, even though the company’s turnover might not be high enough to meet our thresholds. So by looking only at turnover, we might be missing some important deals that we ought to review,” Vestager said in March.

Nicholas Levy at Cleary Gottlieb Steen & Hamilton in Brussels said he was sceptical about potential changes to merger control thresholds.

“The risk of course is that the commission’s interest in the digital sector, which may wane with time, could lead to rules of unduly broad application that subject a large number of transactions raising no antitrust issues whatsoever to delay, uncertainty, and burdensome review processes,” he said.

“Any test based on prospective sales, as some have floated, would be inherently difficult to apply and should be avoided. There might be some justification for an asset-based test, although allocating asset values across EU countries would be arbitrary and difficult in practice to effect.”

As with the prior reform proposals, fundamental questions remain about whether the commission has made a strong enough case that problematic transactions are routinely escaping regulatory scrutiny, Levy said.

Cadwalader Wickersham & Taft partner Alec Burnside in Brussels said the commission has identified a real issue, but the challenge is to find a solution that is measured and goes no further than is appropriate.

“DG Comp is still trying to find the right conceptual approach to dealing with the phenomenon of ‘free’, which isn’t captured directly in price and so therefore isn’t captured in mergers in revenue terms, but it is of huge importance. So it is a welcome consultation,” he said.

“Specifically regarding these digital mergers, there is a real issue that deals of major significance don’t routinely get caught under the thresholds, but the question is whether you can frame a new jurisdictional net in a way that is measured to that and doesn’t cause all kinds of spillover,” Burnside said. “The commission has quite appropriately asked for some specific fact-finding to assess how many deals they are really missing.”

Early this year, Andreas Mundt, head of Germany’s Federal Cartel Office, warned that Germany’s traditional merger control criteria may need to be changed, as it fails to reflect how online companies run their businesses. The retention of data gives online companies a competitive advantage, so authorities need to think about how they approach that asset, he said.

The European Commission today said it is also seeking feedback on its referral mechanism for allocating merger reviews and how to improve its simplified procedure for categories of mergers that do not typically raise competition concerns.

Nicholas Levy said the commission was correct to decide against pursuing an expansion of the merger regulation to capture non-controlling minority shareholdings. In April 2016, Vestager had suggested such reforms could be unjustifiable.

“Given the thin evidence that problematic investments were routinely escaping scrutiny, the complexity of the then-proposed new jurisdictional thresholds, and the risk that any such change might be followed by agencies across the world, thereby increasing compliance costs and regulatory uncertainty,” the commission was correct to drop this, he said.

The consultation is scheduled to close on 13 January 2017.