Compliance programmes and AI tools
Implementing the right culture throughout the business is integral to an effective competition law compliance programme.
Comprehensive risk management policies are less onerous and more cost effective than dealing with a dawn raid or a regulatory body investigation. Additionally, competition authorities may look favourably on such compliance efforts and are more likely to show leniency towards companies that can prove they have a genuine culture of compliance.
We aim to simplify this challenging area of law by providing bespoke commercial and practical risk management programmes in a language that ensures all levels of the business understand how competition law applies to what they do at work every day.
This includes formulating and updating guidelines, giving staff presentations and training and performing simulated dawn raids, including acting as standing counsel in the event of future dawn raids and investigations. We also assist our clients in conducting in-depth audits if anti-competitive conduct is suspected, or as part of a due diligence process.
While traditional law firms have been slow to adopt AI, we are at the forefront of technology advances in this ever-changing landscape. Together with leading forensic IT and legal outsourcing firms, we advise clients on the adoption and implementation of the latest AI data analytics surveillance software. This is focused on prevention and early detection in identifying and addressing potential competition law or regulatory breaches.
Mergers & Joint Ventures
Competition law is critical in the context of merger and joint venture deals and global transactions. We are highly expert in structuring deals and designing appropriate remedies to remove any competition concerns. We also advise third parties wishing to act as a complainant against a proposed merger.
‘We have a great network of like-minded firms, because we can use great people who think like us, wherever they may be in the world’– Marie Leppard, Partner
CLIENTS & CASES
- Imprivata, Global medical technology company, on the competition and public interest aspects of its proposed acquisition of Isosec and subsequent CMA review.
- London Stock Exchange Group on obtaining EU Phase 2 merger clearance with remedies for its merger with Refinitiv
- Siemens and BP in relation to a Joint Venture.
- Statoil Fuel & Retail (now Circle K) on its merger with Shell’s retail fuel network in Denmark before the European Commission.
- PKN Orlen, leading Polish oil company, on obtaining EU Phase 2 merger clearance with remedies for its merger with rival Grupa Lotos.
- Refresco on Phase 1 clearance with remedies for its acquisition of Cott’s bottling activities before the CMA.
- Johnson & Johnson on obtaining EU Phase 2 merger clearance with remedies for its acquisition of Synthes.
- EEX/Powernext as a third-party complainant in the acquisition of Trayport by ICE before the CMA.
- Refresco in relation to notification to the CMA of its proposed buyout by PAI and BCiM.
- CityJet on its long-term wet lease arrangement with Aer Lingus, involving very rare strategic exit rationale.
- Private Equity Houses on mergers, acquisitions and joint ventures in the UK and Europe.
We act both for and against companies that have significant market power. That is possible because market power in itself is not unlawful; it is the misuse of that market power that gives rise to competition issues.
‘We are still the only law firm to have successfully obtained a competition law injunction against Google’– Marie Leppard, Partner
CLIENTS & CASES
- Slovak Telekom in relation to EC investigation into refusal to supply and margin squeeze conduct, as well as subsequent litigation at the EU General Court.
- Various complainants in EC investigations against Google.
- Microsoft in relation to the EC investigation into the tying of Internet Explorer with Windows.
- Huawei in the EU Court of Justice Huawei v. ZTE preliminary ruling concerning Article 102 TFEU and SEP licensing.
- BidonThis as a third-party complainant resulting in the CMA’s investigation into ATG Media’s suspected abuse of dominance in the supply of auction services in the UK.
- NHBC in relation to the CMA’s investigation into structural warranty service undertakings for new homes.
From challenging European Commission decisions to securing urgent relief from the UK Courts to prevent a client from being cut off by a dominant supplier, we combine our mediation and litigation skills to resolve disputes effectively and pragmatically.
‘I use my litigation skills on a daily basis to the benefit of our clients. Disputes are there to be resolved – in the interest of our client, of course’– Oliver Bretz, Partner
CLIENTS & CASES
- Unlockd in its litigation against Google for abusing its dominant position by removing Unlockd’s apps from the Google Play Store ecosystem and denying access to its ad server Admob.
- Slovak Telekom in Case T-851/14, Slovak Telekom v. Commission.
- Huawei in Case C-170/13, Huawei v. ZTE.
- Samsung in Case T-84/13, Samsung SDI and others v. Commission.
- Leading Asian mobile device makers in several arbitration proceedings against SEP holders.
- Leading car manufacturer in arbitration proceeding against parts supplier.
Cartels & Anti-Competitive Agreements
We have considerable experience in advising clients across a range of sectors on complex cartel investigations and anti-competitive agreements, including before the European Commission (EC), the European Courts, the UK Competition and Markets Authority (CMA), the UK Financial Conduct Authority (FCA), and the Belgian Competition Authority.
We have established excellent working relationships based on our many years of experience working for, or with, the competition authorities on a number of complex cases.
We understand the time-critical nature of a company’s response when a cartel investigation is launched. Our close relationships with leading forensic IT and legal outsourcing firms assist clients in high pressure situations by responding quickly to dawn raids by regulatory and enforcement officials, ensuring forensic evidence preservation, document collection and using the latest artificial intelligence software in the most effective manner to ensure clients are able to make informed decisions.
We value the need to provide sound judgment and commercial advice on the antitrust risks associated with proposed commercial agreements with business partners. We ensure our advice always focuses on the key issues, a commercial approach to risk and setting out a practical way forward.
CLIENTS & CASES
- Barclays in relation to the Libor and Forex investigations by the European Commission.
- BidonThis as a third-party complainant resulting in the CMA’s investigation into ATG Media’s suspected concerted practices in the supply of auction services in the UK.
- International Investment Bank in relation to the FCA’s investigation into the Libor/Euribor misconduct.
- AXA in relation to the CMA’s market investigation into digital comparison tools and follow on investigation into a price com parison website (PCW) for its use of most favoured nation clauses in the home insurance market.
- National Lighting Company in relation to the CMA’s domestic light fittings Resale Price Maintenance (RPM) investigation.
- International pharmaceutical company on its defence in relation to the CMA’s investigation into suspected anti-competitive agreements.
- International Oil Company in relation to the EC’s investigation into the alleged manipulation of the energy agency Platts’ oil price benchmarks
- Multinational resource company on the establishment of a new European benchmark pricing mechanism.
- International pharmaceutical company on its proposed global co-development and commercialisation agreement.
Commercial agreements and strategy
Competition law issues can arise from many common types of commercial agreement. For example, when it comes to distribution agreements, as well as limiting a supplier’s ability to set a product’s resale price, European competition law is generally hostile to suppliers imposing restrictions on cross-border or online sales. IP rights licensing can raise additional and potentially complex issues.
This is important, since an agreement that infringes competition law will be unenforceable. In addition, the European Commission and many national competition authorities are actively investigating distribution agreements that raise competition concerns and, in many cases, imposing substantial fines.
Our lawyers have extensive experience of advising a wide range of companies on the competition law implications of their commercial agreements, including selective and exclusive distribution, software and content licensing, media rights exploitation, R&D joint ventures and IP commercialisation.
We have also assisted companies in defending themselves against competition law investigations relating to their commercial arrangements or as third parties to investigations into the commercial arrangements of their suppliers or competitors.
'Having advised some of the world’s largest e-commerce companies on their commercial agreements and strategy, as well as related antitrust investigations, I am well versed in how online markets function and am able rapidly to zero in on potential issues and assist clients with calibrating the associated risk.'– Becket McGrath, Partner
We have particular expertise in e-commerce, with experience advising online retailers, marketplaces, pricing software vendors and games companies. Euclid is a founding member of eControl Global, which helps brands gain more control over their distribution arrangements through the use of selective distribution. We work closely with brands, ranging from household names to start-ups looking to sell products online for the first time.
'I love working with our eControl brands, as we help them ensure that their products are sold in a way that protects their brand value, while maximising the benefits offered by e-commerce for them and consumers.'– Sarah Long, Partner
Environmental Competition Law
We believe that a much more holistic approach to environmental and sustainability issues is urgently required to boost European efforts to address the climate crisis. We have therefore developed a new approach to environmental issues and competition law, one that involves thought leadership at the frontier between law and public policy, based on an open and constructive dialogue with regulators.
‘We wanted competition law to be part of the solution, rather than remaining a problem. It seems like the rest of the world has come around to our thinking’– Becket McGrath, Partner
CLIENTS & CASES
- European Recycling Systems in relation to on facilities sharing and vertical issues.
- Chemicals Trade Association – representation on studies regarding toxicity.
- Major Logistics Provider on back-haul CO2 savings through data sharing and cooperation.
Market and Sector Investigations
Market and sector investigations are complex and can result in fundamental changes to commercial practises and behaviour in a sector, which can be extremely burdensome to the companies involved. We find innovative solutions to ease that burden.
‘I used to work in a major bank just after the financial crisis. It felt like the whole sector was under scrutiny, despite the fact that we had done nothing wrong. At Euclid, we want to change this.’– Natalie Greenwood, Partner
CLIENTS & CASES
- TESLA in relation to the CMA’s market study into EV charging.
- Memoria in relation to the CMA’s market investigation into funeral directors and crematoria services.
- HBF in relation to the CMA’s consumer law investigation into the leasehold housing market.
- BP on the CMA’s market study into Electric Vehicle Charging.
- European Commission together with Europe Economics, appointed to assist and advise the European Commission DG Comp in its market study in relation to loan syndication in Europe.
- AXA in relation to the CMA’s market investigation into digital comparison tools and follow-on investigation into a price comparison website (PCW) for its use of “most favoured nation” clauses in the home insurance market.
- Mastercard on settlement of the Payment System Regulator’s Chapter 1 investigation into prepaid cards in the UK.
- Generic pharmaceutical client in relation to the CMA’s excessive pricing and anti-competitive conduct investigation.
- StubHub on the CMA’s secondary ticketing consumer protection investigation.
Under European Union rules, it is unlawful for EU Member States to provide financial or other assistance to selected companies, without the specific approval of the European Commission. We have advised both EU Member States and companies on all aspects of the EU state aid rules, and have particular expertise in financial services, postal services, media, infrastructure projects and energy.
‘If a contract is granted by a state-owned company at a favourable rate, that could be State aid. State aid is unlawful until it is authorised by the European Commission’– Becket McGrath, Partner
CLIENTS & CASES
- ALRO in relation to a EC state aid investigation regarding a Power Purchase agreement with Hidroelectrica.
- ALRO on the EC state aid investigation into the Romanian renewable energy (“Green Certificates”) scheme, and subsequent amendments to the scheme.
- Bpost in relation to EC state aid investigation regarding compensation for services of general interest, and related litigation.
- National Media Federation as a complainant to the EC against state broadcaster.
EU Foreign Direct Investment and UK National Security
We are highly expert at navigating the Foreign Direct Investment Regimes in the EU and the UK.
On 25 March 2020 the European Commission issued Guidance to the Member States concerning foreign direct investment and free movement of capital from third countries, and the protection of Europe’s strategic assets (the “Guidelines”), ahead of the application of Regulation (EU) 2019/452 (the “FDI Screening Regulation”) in October 2020. This was addressed to Member States setting out what they can do in advance of the FDI Screening Regulation mechanism coming into force. The document was part of the overall Commission response to the COVID-19 crisis.
There are currently 15 notified national screening regimes in the EU, some of which require compulsory notification and clearance of relevant mergers backed up by criminal penalties.
The UK has its separate screening regime and does not take part in the EU FDI framework, as the UK left the EU on 31 January 2020. The UK Government has now published the draft National Security and Investment Bill introducing an entirely new ownership vetting regime for transactions involving targets in key UK sectors. The regime will introduce a mandatory filing requirement for all acquisitions of entities that are active in 17 specified sectors, which have been selected on the basis that the government considers that transactions involving them have the most potential for risks to national security to arise.
There will be a mandatory waiting period of 30 working days from filing, although officials hope to be able to shorten this in straightforward cases. Transactions that close after the commencement date and that fall within the sectors specified must first be notified and cleared, otherwise they will be void.
Penalties may also be imposed for completing a notifiable transaction without approval, up to and including imprisonment. Transactions that raise national security concerns (likely to be a small minority of all notified deals) may be called in for a more detailed review and ultimately be subject to remedies. Transactions involving entities in other sectors, and any acquisitions of assets, may be notified voluntarily and the government will be able to call in such deals, if there is a potential national security issue.
Although the new law is aimed at targeting acquisitions by ‘hostile actors’, as drafted the bill’s provisions apply to all acquisitions, regardless of the identity or nationality of the buyer. The bill does provide a mechanism for the Government to implement a ‘white list’ that will dis-apply the notification requirement for buyers based in certain jurisdictions, or for certain types of investment, but the detail of this mechanism is not yet clear.
The Government have published a list of the 17 affected sectors for consultation, with a closing date of 6 January. The sectors, which include computing hardware, communications, data infrastructure, engineering biology, cryptographic authentication and quantum technology, will be confirmed after the consultation ends.
Deals will be notifiable if they involve acquisitions of shares or voting rights that take the buyer through thresholds of 15%, 25%, 50% and 75% and below 15% if it involves the acquisition of material influence.
If commencement takes place before closing, closing cannot legally take place unless and until the deal has been notified and cleared, even if in the meantime it is cleared by the CMA (where relevant).
CLIENTS & CASES
- Advising a manufacturer of dual-use products on a UK acquisition.
- Advising a software manufacturer on the public interest issues of a UK acquisition.
- Representing a supplier of healthcare IT in front of the CMA.
- Assisting an acquiror on Foreign Direct Investment filings in multiple EU countries.