Published on Jan 10, 2024
Margrethe Vestager, the EU’s top antitrust enforcer, could be out of the job by the end of the year. The current European Commission mandate runs until October 31. A third term for Vestager, having been in the competition post since late 2014, would be unprecedented.
Vestager, therefore, has some 10 months to either conclude or make progress on a host of high-profile matters. The next commission will only sit once there’s political agreement on all posts, which could give Vestager a little longer in the competition seat. Dutch politician Neelie Kroes gained an extra few months in late 2009 following the late confirmation of the second José Manuel Barroso commission.
With the clock fast running down on Vestager’s second term, among the most pressing matters on the agenda are antitrust cases against Big Tech giants as well as merger reviews in industries that are either undergoing profound change or suffered recent shocks due to the Covid-19 pandemic.
An EC spokesperson didn’t respond to a request for comment.
Digital antitrust legacy. Digital markets have been the hallmark of Vestager’s tenure, and she’ll want to resolve at least some of her agency’s fairly advanced Big Tech antitrust investigations before October. Other considerations and priorities are also in play though, particularly the Digital Markets Act (DMA).
The DMA requires designated gatekeepers—so far Alphabet (GOOGL), Amazon (AMZN), Apple (AAPL), ByteDance, Meta (META) and Microsoft (MSFT)—to comply by March 7 with obligations aimed at opening up digital markets to competition.
In 2022, Amazon settled a pair of antitrust investigations with commitments that mirror its forthcoming DMA obligations so other gatekeepers could choose to do the same, noted Christophe Carugati, the founder of advisory firm Digital Competition. The EC will also be motivated to close cases in this way “to save administrative resources and time,” he added.
“Regardless of what happens in the next commission, there will be quite strong momentum for the resolution of a number of big files” over the coming months, said Brussels-based Cooley partner Jonas Koponen.
One such probe is the EC’s investigation into whether Meta illegally ties its online classified ads service, Facebook Marketplace, to the use of its social media platform and imposes unfair trading conditions on competing classified ads services that advertise on Facebook or Instagram. The CMA last year accepted commitments from Meta to resolve a similar investigation, but the EC is said to have rejected that remedy offer before sending the company a Statement of Objections (SO) in December 2022.
The EC then designated Facebook Marketplace as a “core platform service” under the DMA, a decision Meta is challenging before the EU General Court. The company’s resulting obligations as a core platform service could address some of the EC’s concerns so the authority may want to wait for the outcome of the appeal before resolving its antitrust investigation. The appeal doesn’t stop the company from having to comply with the regulation in the meantime.
The agency’s investigation into Apple’s refusal to grant rival payment providers access to its mobile wallet technology also falls under the DMA because the wallet is part of Apple’s iOS operating system, which also has been designated as a core platform service.
A separate probe into Apple’s anti-steering rules for music streaming providers on its App Store could be decided before the DMA’s March deadline, according to one report. The DMA’s requirement that device operators allow rival app stores on their devices won’t resolve the EC’s allegations that Apple’s restrictions on app developers prevent them from informing iPhone and iPad users of alternative music subscription options with lower prices outside of the app.
The company declined to comment on the status of either investigation but said it was working closely with the EC.
Carugati said Vestager might also want to resolve the Google adtech case before she leaves but could struggle to do so because “the structural remedy she asks for requires strong legal and economic evidence on a very complex topic that Google will surely challenge.”
Speaking at a conference in Brussels last month, EC Director-General for Competition Oliver Guersent said he expects that consumers will see changes including “new third-party app stores and choice screens on new devices” when the DMA obligations kick in on March 7. He also noted that the new regime is very resource intensive, with the agency handling 150 separate files corresponding to each designated core platform service plus ongoing market investigations to designate more.
EC officials have publicly and privately lamented a lack of staff and the authority has been actively recruiting case handlers and a chief technology officer for the past year, suggesting a perhaps unavoidable slowdown in antitrust enforcement.
Not just Big Tech. That said, the EC is close to ending several other abuse of dominance investigations. For instance, it’s been market testing commitments from Spain’s national rail operator, Renfe, to resolve concerns that the company refuses to give third-party ticketing platforms access to its real-time data. Renfe has said it will implement the data-sharing remedies by February 29.
One new frontier that could see a decision this year is anticompetitive disparagement in the pharmaceutical sector, which national European enforcers have penalized but the EC hasn’t yet. The agency sent Teva an SO in October 2022 accusing it of illegally extending patent protection over its multiple sclerosis drug Copaxone while “systematically spreading misleading information” about a rival product, and it held an oral hearing in March 2023.
The authority is similarly probing Vifor Pharma for disparaging rival Pharmacosmos, although that case is not as far along as the Teva probe. It’s also preparing new guidelines on exclusionary abuses that will make it easier to penalize firms for conduct that forecloses rivals.
Cartel enforcement could also see the EC enter new territory such as labor markets and sustainability. The enforcer opened its first public no-poach investigation late last year, targeting food delivery platforms Delivery Hero and Glovo. It also issued a chargesheet in November to a suspected battery recycling cartel.
Both cases, Koponen noted, involve seemingly novel issues that have been “bubbling for some time” but ultimately come down to suspected buy-side collusion, a well-confirmed theory of harm.
The EC also is coordinating with the CMA on another sustainability-focused investigation into suspected collusion among major carmakers in the collection and recycling of scrapped vehicles, as well as a probe into suspected fragrance price-fixing. Those cases have been stymied by court challenges that are still ongoing in both the EU and UK but they suggest the agencies are working closely outside of merger enforcement and digital markets.
Other responsibilities in the competition portfolio, particularly state aid supervision and the enforcement of a new foreign subsidies regime, are very important because of their link to industrial policy, Koponen added.
“The three-dimensional puzzle between antitrust and DMA enforcement with industrial policy, state aid, subsidy control, economic security and foreign investment is going to be important in the year ahead,” he said. “This is the year where the instruments that Vestager has steered and that have been adopted during her term come into fruition.”
Merger control. Whatever the makeup of the next commission, Vestager will be at the helm of the competition department for the conclusion of several high-profile merger reviews that are in the latter stages of in-depth investigations in Brussels. They include Amazon’s (AMZN) pending $1.4 billion acquisition of iRobot (IRBT), Korean Air Lines’ (KRX:003490) plan to buy rival Asiana Airlines (KRX:020560) and the proposed combination of the Spanish operations of Orange (ORA: FP) and MasMovil.
The parties in Orange/MasMovil offered formal concessions to the EC December 12 in a bid to address the regulator’s concern that a reduction in mobile network operators (MNO) in Spain from four to three is anticompetitive.
Romanian company Digi Communications announced last month it had agreed to acquire assets from Orange and MasMovil, elevating the buyer to MNO status. Digi is a virtual network operator in Spain, offering services via access to Telefónica’s Movistar network.
Digi’s December 12 announcement said that the company would acquire certain spectrum licenses from MasMovil and that it would have the option of entering a national roaming service agreement with access to all “available technologies in the mobile network of Orange Espagne S.A.U. or its affiliates, including MasMovil Ibercom S.A.U., in Spain.”
That probe had been on hold since late July and the merging parties’ move to offer concessions only one day after the commission resumed its phase 2 investigation December 11 suggests the authority is at least broadly on board with the remedy package.
Much could still depend on the outcome of the EC’s remedy market test, but the deal’s trajectory is said to be pointing toward a conditional clearance, rather than to prohibition.
The regulator’s decision deadline is February 15, meaning the EC’s competition unit will soon have to reach a determination on the case prior to circulating it to the broader commission departments for consultation.
A spokesperson for MasMovil declined comment. Orange didn’t respond to a request for comment.
Asiana saga. Another fast-approaching review deadline involves Korean Air’s acquisition of rival airline Asiana, which the EC must conclude by February 14. That transaction, between the Republic of Korea’s two largest airlines, was first penned in November 2020.
The buyer finally submitted remedies to the EC on November 3, 2023, but several weeks passed before the watchdog was ready to market test the offer, suggesting tweaks to the package were made in consultation with the authority.
Part of the concessions involve Korean Air enticing a new entrant on passenger routes between Seoul and four European cities—Barcelona, Frankfurt, Paris and Rome. The merger parties compete head-to-head on those routes.
Korean Air reportedly has agreed to transfer control of five passenger planes and some 100 pilots to South Korean low-cost T’way Air to facilitate that entry.
Significantly, Korean Air has also proposed divesting the whole of Asiana’s cargo unit in its bid for EC clearance, a move the target’s board only agreed to a day prior to the formal remedy submission in November.
Korean Air CEO Walter Cho in his New Year message said he expects the year ahead to bring intensified competition and a slowdown in the cargo business. Cho expressed confidence that the Asiana deal will close: “We will complete the acquisition of Asiana Airlines in 2024. Although it has taken much longer than expected.”
A spokesperson for Korean Air confirmed the remedy offer, adding “we expect this to facilitate the remaining process.”
The spokesperson also said the airline “will also communicate closely with the remaining regulatory bodies to finalize the approval process as quickly as possible.”
Tough standards for Telcom and Aviation. If the commission clears both the Orange/MasMovil and Korean Air/Asiana deals, the regulator shouldn’t be seen as having softened its stance on telecom and aviation transactions.
In 2016 the EC prohibited the last attempt to consolidate the number of MNOs in a large European country when it blocked CK Hutchison Holdings from merging its Three UK unit with Telefónica’s O2 UK. More recently, both the Air Canada/Transat and International Airlines Group (IAG)/Air Europa deals were abandoned by the parties in the face of regulatory resistance from Brussels.
Remedies offered in the Orange/MasMovil and Korean Air/Asiana deals strongly indicate the commission has maintained its tough standards. But unlike those previous failed mergers, Orange/MasMovil and Korean Air have been able to offer the necessary, wide-ranging remedies, that Hutchison, Air Canada and IAG either couldn’t or wouldn’t offer.
That’s noteworthy for IAG as well as Deutsche Lufthansa, who both have merger deals currently before the commission. IAG is making a second attempt to buy Air Europa, while Lufthansa and the Italian Ministry of Economy notified the EC on November 30 of their plan to jointly control Italian airline Italia Trasporto Aereo, which emerged from the now defunct Alitalia.
Lufthansa and the Italian Ministry on Monday offered phase 1 concessions in a bid to obtain EC approval for that deal. IAG’s latest tilt at Air Europa was filed on December 11 and the buyer has until midnight next Wednesday, January 17, to submit phase 1 remedies.
Yet companies contemplating future deals, particularly in the telecom space, will be keeping an eye out for the identity of the next competition commissioner. From 2012 to 2014 the EC approved several mergers under competition chief Joaquín Almunia that cut the number of mobile network operators in various countries.
The commission’s stance under Vestager of requiring the entry of an MNO as a condition to doing those deals put of a freeze on that type of dealmaking in Europe. A different commissioner, with more sympathy for the investment arguments made by telecom companies, could usher in a new wave of consolidation.
iRobot. Another merger decision Vestager will oversee is Amazon/iRobot, which has also been undergoing a phase 2 review in Brussels. The EC issued Amazon with an SO in late November and is currently set to decide on the deal by February 14.
The authority’s concerns about the merger focus on the type of foreclosure issues the online marketplace giant recently addressed through an antitrust settlement with the EC, meaning Amazon should in theory be capable of winning approval for the iRobot deal, according to analysis by The Capitol Forum.
But the commission’s prohibition of Booking Holdings’ bid to buy Etraveli Group, said to be driven by Vestager, adds a level of intrigue to the Amazon/iRobot review. After all, Booking/Etraveli was also a non-horizontal transaction. A critical difference, though, is that in the Etraveli deal, the EC focused on how the merger would boost Booking’s already dominant position in hotel services, whereas for Amazon/iRobot the commission’s concerns appear focused on foreclosure effects in the market for robot vacuum cleaners, rather than boosting Amazon’s position in online marketplace services.
Amazon has until midnight to offer formal remedies to the EC.
Commenting on the deal, Didier Reynders, the EU’s acting competition commissioner during Vestager’s absence, reportedly said late last year that the “main issue is to be sure to have a fair treatment of all the different actors,” referring to iRobot’s competitors. But Reynders has now returned to focus solely on the bloc’s Justice portfolio, with Vestager back at DG Comp following her failed attempt to become president of the European Investment Bank.
Vestager’s proclivity for taking on Big Tech companies will remain a concern for Amazon.
Investors, though, have been questioning the buyer’s enthusiasm for the transaction. Those doubts probably intensified after iRobot reported a net loss of $79 million for the third quarter ended September 30. The target has posted a series of losses which last July led the companies to renegotiate their agreement, lowering the purchase price to $1.4 billion from $1.7 billion.
Yet it probably doesn’t suit Amazon’s longer-term strategic goals to have the EC block the iRobot acquisition. It would probably make any future acquisitions that touch on Amazon’s marketplace business more difficult as it would show Amazon has both the ability and incentive to foreclose, as well as an inability to address those concerns with adequate concessions.
A remedy offer by Amazon would push the EC’s deadline to March 6. iRobot’s Q4 and full year 2023 results are expected around mid-February.
Spokespeople for Amazon and iRobot didn’t repond to requests for comment.
In addition to those three phase 2 probes, the commission this year will tackle a host of other merger deals including Qualcomm’s (QCOM) plan to buy vehicle chipmaker Autotalks; European Energy Exchange’s proposed purchase of Nasdaq’s European power trading and clearing business; Cisco’s acquisition of cybersecurity firm Splunk; and potentially Microsoft’s investment in OpenAI.
