VBB On Competition Law | Volume 2023, NO1

• Published date: 31 May 2023
• Subject Matter: orporate/Commercial Law, Antitrust/Competition Law, M&A/Private Equity, Antitrust, EU Competition
• Law Firm: Van Bael & Bellis
• Author: Van Bael Bellis

The ESG regulatory and transactional environment in Southeast Asia and India continues to evolve quickly. Sustainability standards are becoming mandatory in corporate and financial reporting, social and labour standards are being enhanced across the region, and green and sustainable financing flows remain strong.

Investors are demonstrating increasing willingness to challenge board directors on their companies' climate performance and scrutinise climate risk management disclosures and emissions reduction plans. Key government policy initiatives include supporting energy transition, reducing environmental barriers to trade, and strengthening environmental risk management.

MERGER CONTROL

National level

FRANCE

French authorities fine metal recycling companies for non-compete and no-poach agreements in merger

On 6 January 2023, the Directorate-General for Competition, Consumer Affairs and Fraud Control of the French government (DGCCRF) announced its decision to fine three metal recycling companies a total of ' 148,000 for entering into non-compete and no-poach agreements in the context of a merger.

The French authorities reaffirmed that non-compete and no-poach agreements can be found illegal if (i) they are not necessary to complete the transaction; (ii) they constitute the main object of the agreement in question; or (iii) their geographical, material or temporal scope is disproportionate.

In this case, the non-compete and no-poach agreements were concluded for a period of three years and covered the whole national territory, which exceeded the territory in which the seller offered its services. The French authorities found that, because of their wide territorial scope and their reciprocal nature, the non-compete and no-poach agreements went beyond what was necessary to complete the merger and therefore amounted to a market sharing agreement.

Accordingly, in a settlement procedure, the DGCCRF fined the three companies ' 37,600, ' 90,000 and ' 21,000 respectively, and required them to commit not to apply the non-compete and no-poach agreement.

GERMANY

Meta/Kustomer - Higher Regional Court Düsseldorf provides guidance on when a target has "significant domestic activities" under the transaction value threshold for merger notifications in Germany

On 23 November 2022, in appeal proceedings lodged by Meta against a decision of the German Federal Cartel Office ("FCO") relating to its acquisition of Kustomer, the Higher Regional Court of Düsseldorf (the "Court") provided guidance on the interpretation of the criterion of...