Pharmaceuticals – Dealing in Uncertain Times – The Article 22 Merger Procedure

• 07/05/2021
• Articles

With the Commission’s publication of Guidance on its expanded use of the Article 22 merger review procedure, and its immediate use against the Illumina / Grail transaction, pharmaceutical companies face a new world where any acquisition of a small biotech or company with key technology could now face a merger control investigation and potentially a prohibition.  So what can pharmaceutical companies do in these uncertain times…

Background

In recent years, the European Commission has expressed concerns that large companies in the pharmaceutical and tech sectors are conducting “killer acquisitions” of new entrants or smaller competitors that fall below the revenue thresholds for merger review.   In order to address this concern, the Commission expanded the use of Article 22 of the Merger Regulation in a manner that would effectively empower the Commission to review any transaction.  Under Article 22, any national competition authority (on its own motion or following encouragement by the Commission or by interested parties) may refer a transaction to the Commission, even if the transaction does not meet EU or national merger thresholds.  Further, such a review process can be triggered even after the closing of the transaction.  For companies in the pharmaceutical sector, this means that transactions involving a biotech or other company with little revenue could still be subject to a merger clearance process, even after closing, and could potentially result in a prohibition or required changes.   

Dealing in Uncertain Times

Identifying At-Risk Transactions

While the Commission has issued guidance concerning the characteristics of transactions that may be caught, companies operating in the pharmaceutical sector will not find much comfort, as the characteristics will fit many transactions in the sector.  These characteristics include transactions involving a target (i) with turnover/revenue that does not reflect its actual or future competitive potential or that is significantly lower than the consideration being paid to the seller, (ii) that is an important innovator or is conducting potentially important research, (iii) has access to competitively significant assets (such as raw materials, infrastructure, data or intellectual property rights), and/or (iv) provides key inputs/components.

Pharmaceutical companies therefore are largely left to assess for themselves the practical risk of a transaction being subject to the expanded Article 22 procedure, taking into account possible challenges by competitors, customers, payors or suppliers, or an investigation initiated by a competition authority.  Particular care is recommended for any transactions that could be politically sensitive or important to national health authorities or payors, which are more likely to be pursued by the competition authorities.  The Illumina / Grail transaction provides a good example, as the case concerns next-generation gene testing for cancer, a topic that is important to the Commission’s Beating Cancer Plan.

Negotiating Contractual Protections

Deal terms will need to address this new risk of an Article 22 referral and merger review process, including the possibility of a decision imposing conditions or prohibiting the transaction.  These terms will also need to address the possibility that a review could be initiated up to six months post closing, or even longer if the transaction raises serious competition law concerns. 

Informal Consultation with the Commission?

The European Commission has indicated that it may be willing to provide informal guidance to parties concerning whether the transaction would likely be caught by the Article 22 procedure.  However, as any guidance would be non-binding, the parties would only get very little legal certainty in the best scenario.  For this reason, the main benefit from an informal consultation would arise where a transaction could raise substantive issues or is likely to be reviewed, in which case a pro-active approach would allow the parties to present their case and avoid that the authorities only hear from parties seeking to block the deal.

Make the Transaction “Known” to National Authorities?

Where a notification is not required in a Member State, the EU Merger Regulation specifies that national competition authorities may only refer the transaction to the Commission if the referral occurs within 15 working days from when the transaction is “otherwise made known” to the authority.   This rule creates the opportunity for the parties to informally notify relevant national authorities of the transaction (so that the transaction is “made known” to the authority), and then await expiry of the 15-day period before closing the deal.  Through such a step, the parties may achieve additional comfort that the transaction would not later face referral and review by the Commission after closing. 

However, the use and effect of such an informal notification remains untested, and may not be beneficial for all transactions.   Currently, the law is not clear concerning what information would have to be provided to an authority for the transaction to be “made known”, and prevent a later referral after the expiry of the 15-day period.  Further, the parties may incur significant costs and legal fees notifying authorities in all relevant countries.   For these reasons, parties might instead choose to proceed without any informal notification or consultations, particularly where the transaction does not raise any significant substantive competition law issues and therefore is unlikely to face any later decisions requiring remedies or the unwinding of the deal.

Influencing Whether the Commission Will Pursue an Article 22 Request

The Commission’s Guidance indicates that the parties will be notified “as soon as possible” where a referral request is being considered.  Parties to a transaction may therefore have a brief opportunity for informal submissions to the Commission and national authorities, seeking to convince the authority that the transaction does not merit referral.  However, in light of the very short timelines available to the authorities to decide whether to refer a transaction, any opportunity for submissions and consultation would be very limited, and such measures are only likely to have an impact for simple transactions with no significant competition law concerns.

Procedure if the European Commission Accepts the Referral

If the Commission accepts a referral, the parties will be required to notify the transaction and the resulting review of the transaction will be largely governed by the standard EU merger review rules and procedures.  As an exception, the “stand-still” obligation on the parties will only apply if the transaction has not already been implemented on the day on which the Commission informs the parties of a referral request from a national authority.

New Opportunities for Third-Parties to Challenge Transactions

While the expanded use of the Article 22 procedure creates significant risks for merging parties, it creates opportunities for competitors or other parties interested in challenging transactions.  The European Commission’s guidance specifically welcomes third parties to “contact the Commission or the competent authorities of the Member States and inform them of a concentration that, in their opinion, could be a candidate for a referral under Article 22 of the Merger Regulation.”  Suffice it to say, this creates a significant opening for any interested party to raise issues and introduce additional uncertainty for the parties seeking to complete or implement a transaction, even after closing.