How does Foreign Direct Investment (FDI) control fit in and what is its role?
The European Union has for many years regulated mergers in order to address potential problems of market power arising from such deals. That is a process known as “merger control”, which is determined by the EU Merger Regulation, which has been in force for over 30 years. Under that regime, mergers of a certain size have to be pre-notified for approval to the European Commission and may not be completed before clearance.
In recent years there has been a concern about the rise of foreign investment in EU companies, especially by Chinese state-owned companies. This has resulted in a new EU Regulation to screen investments from third countries. Unlike the EU Merger Regulation, that process is devolved to the EU Member States with the Commission playing a coordinating role. Foreign investments may require pre-notification in a number of EU Member states and may not be completed until cleared by all of them. Since the UK’s excit from the European Union, the UK National Security and Investment Act (NSIA) filing it outside of this framework, but nevertheless it needs to be considered and taken very seriously.
Whereas the EU Merger Regulation is a legal process with legal tests that are well-understood, the FDI reviews are often based on political considerations relating to national security. Although the Commission is seeking to put a framework around these disparate regimes, expert knowledge is crucially important to ensure a coordinated pan-European approach to such questions. We have an excellent network of local contacts who can help you navigate this regulatory maze.
What makes Euclid different?
Every big law firm will claim to be ranked among the elite, to have stellar partners, to have worldwide presence and leading expertise, to collaborate and focus on management at every stage and use cutting edge technology.
Euclid Law could also make many of these claims and put ourselves in the running against ‘the big guys’. But why would we want to?
When our founding partners broke free of traditional law firms in 2015 they did so with the aim of building something different, something new. They founded Euclid Law with the vision of creating a new-era law firm with a fresh, human approach, one centred on clients and their needs.
Aside from our sole focus on competition law and foreign direct investment, this is fundamentally what makes Euclid Law truly different: we prioritise people over profit, both internal and externally.
We make communication around corporate compliance paramount, ensuring competition law is not only understood but also fully integrated into a company’s culture.
We do not just charge eye-watering bills for a piece of legal advice and leave you be; we communicate and build trust so that we can collaborate and build solid business cultures.
We use competition law to strengthen and build world-class businesses, ones based on good business ethics with the potential to grow, expand and solidify their status regardless of current market position.
Because ultimately we believe that competition law, if approached right, will positively impact businesses and, in turn, their customers, staff and the markets they operate in.
More on Euclid’s difference here.
What is competition law?
Competition law is nothing new – it’s been around since the Roman Empire, albeit its rules and applications have evolved over time.
A quick history lesson: markets and trade guilds became subject to systems and (sometimes cruel) sanctions in Roman times. Fast-forward to the Middle Ages to when these systems and sanctions were adapted for legislation in England to control monopolies and restrictive practices. This was the precursor to the English common law of restraint of trade, which was the direct predecessor to modern competition law.
The US later developed modern competition law to effectively prohibit agreements designed to retrain another’s trade. This evolution in competition law was based on the prohibition of agreements that ran counter to public policy, unless the rationality of an agreement could be shown.
And so we skip a few hundred years to today when competition law, also known as antitrust law, is a rule that promotes and seeks to maintain market fairness by regulating anti-competitive corporate conduct.
It has historically evolved within territorial boundaries of nation-states, but the basic principles remain more or less the same. This is because trade entails a certain level of competition between businesses, as it has been since the dawn of the industrial age and so it continues with the rapidly evolving digital age.
The model effectively acts that start-ups and young firms can freely enter markets and compete with existing firms – or to use legal language, there are no barriers to entry. In economic terms, competitive free markets will deliver allocative, productive, and dynamic efficiency. This market fairness definition is at the core of Competition law, which became global in the 20th century, and is the essence of what Euclid Law does.
UK & EU Competition Law
In the UK and European Union context in which Euclid Law specialises, competition law promotes the maintenance of competition within the European Single Market. Broadly speaking, this means ensuring there are no cartels, monopolies and illicit behaviours that would damage the interests of society.
Most of the EU business law today derives from the TFEU (Treaty on the Functioning of the European Union), although it takes its roots in the Treaty of Rome and later the Treaty of Lisbon. Accordingly, competition law focuses mainly on:
- The prohibition of practices and agreements that restrict free trade and inter-business competition
- Dominant positions, or a firm abusively dominating a market with anti-competitive practices.
- Mergers and acquisitions of big corporations and joint ventures. A common competitive process of approval is to suggest ‘remedies’, or the obligation to divest part of the merged business/offer licences/access to facilities to enable other business to continue competing.
And that, very briefly, is Competition Law. Get more in-depth insights here.
How does competition law affect my business?
As competition affects any business, big or small, competition law is naturally relevant to every business. In broadstrokes, competition law’s relevance to a business can be divided into two distinct categories:
1. Fighting Anti-Competitive Behaviour
Anti-competitive behaviours are a reality and can cause great damage by purposefully aiming to reduce fair advantage in a market and denigrate any notion of a “fair fight” between opposing parties in a sector. Put simply, an organisation in a dominant position has the potential to abuse that market position to the disadvantage of all other competitors.
You, as a business owner, have the right to defend your business’ right to grow and compete in a free and fair market. If you are, or have been, a victim or felt the weight of unfair agreements affecting your business directly or indirectly (such as price fixing, market shares, production control, bid rigging, etc.), you are likely to be in dire need of competition law advice.
Regulatory bodies are of the utmost importance and are on your side, as are we, to enforce competition laws to avoid these types of situations.
2. Ensuring Compliance and Competing Fairly
Conversely, as a business owner you have the moral and legal obligation to ensure you are not engaging in anti-competitive practices that impinge on the rights of others to compete freely and fairly.
This is not only important in terms of avoid penalties, but also in terms of establishing and/or protecting your brand image and the public’s perception of your business, which has a direct impact on your bottom line. A positive image of your business boosts income, while an ethically questionably image drives down profits.
How We Help Businesses
Our advice deals not only with the legalities of an uber competitive global market but also emboldens businesses to better themselves and, by doing so, positively impact consumers who will find the range of their options vastly widened. Hence the importance of remaining compliant all while growing ethically within a rich business culture – this feeds the dynamism and value of a given market.
On a macro market level, competition law promotes business ethics within corporations while also creating solid, long-lasting values. By establishing good business cultures and allowing businesses to improve and develop, competition law positively impacts markets.
On a micro level, compliance with competition law strengthens individual businesses. By not leaving any stone unturned when ensuring compliance with free and fair competition, you will also remain and/or become a strong competitor in your field.
More on our specialised services here.
Why choose a competition law specialist?
Any business, regardless of market sector, will at some stage be confronted with competition law, whether directly or indirectly.
Whether it’s the UK Competition and Markets Authority, the FTC’s Bureau of Competition, the European Commission or any markets authority around the world, there are rules to how the game is played.
If you’re not an expert on these rules, the prospect of a sector investigation, merging or acquiring another entity will take on a life of its own and present complex and intricate challenges that require field expertise of the highest order.
Enter Competition law experts.
We know the market; we understand the commercial and competitive issues and hurdles that await a business, whether it is emerging, well established or a household name in your respective industry.
We focus solely on the competitive and anti-competitive side of business and have created a unique network in addition to a wealth of senior experience.
We are accustomed to helping multinationals, large, medium, and small firms, on all sides of the spectrum. We are a flexible team who will work close to you with empathy, clarity and deep insight.
We will be your best asset to strategize and present a case to your advantage, whether to confront business behemoths and fierce, unapologetic competitors, or to defend a decision or an outcome to your relevant national business authorities.
As specialists we will be your vigilante and protect your business from anti-competitive behaviour at all times. This entails being vigilant on competitor business around you and protecting your business from anti-competitive behaviours, such as agreements invalidated by companies sharing sensitive and confidential market information, price fixing through horizontal or vertical agreements, sectorial cartels and abuse of market dominance (through predatory pricing and exclusive dealings).
It is of course paramount that you, in turn, are also fully compliant. You will want to avoid being directly or indirectly anti-competitive yourself, which could lead to potentially crippling consequences: financial repercussions, criminal prosecution, fines and a tarnished reputation. We are here to expertly guide you through all processes and ensure you are always beyond reproach.
Ultimately, being competitive without acting anti-competitively seems straightforward on paper, but it isn’t. It can be an ordeal and requires a wealth of knowledge and ‘tricks of the trade’.
This is why choosing a law firm to help navigate the rules and laws of business is not simply a case of ‘instructing’ legal advisers. It’s about strategically selecting close and specialised collaborators to help take you forward and build solid, long-term bases.
More on Euclid Law’s unique approach here.