Capital is global. Business is globalizing. Yet politics and
fiscal matters, primarily jobs and taxation, are inherently local
in nature.
The collision between capital/business interests and
political/fiscal interests primarily comes to the fore in
cross-border M&A. With the surge of big-ticket M&A activity
beginning at the end of 2013, this has played out in the United
States primarily as a fiscal issue, with U.S. politicians voicing
concerns about so-called "inversion" transactions in
which large U.S. corporate buyers have relocated their tax
domiciles from the U.S. to more tax-friendly countries like Ireland
and England. At the same time, as the EU economy has begun to
stabilize after the financial crisis, European companies have
increasingly become the targets of large, sometimes hostile
takeover bids by non-EU headquartered companies, raising national
political issues in the countries in which the targets are
headquartered.
This Commentary discusses a recent transaction that has
reignited the debate regarding protectionist measures against
attempted foreign takeovers of so-called "national
champions": Pfizer's £69 billion ($118 billion)
unsolicited takeover proposal for AstraZeneca.
The debate is not new. The public interest test of the sort
recently discussed in the UK is likely to be opposed by the
European Commission ("EC") as contrary to EU merger
control law and the EU internal market principles. These prohibit
most measures that would prevent or restrict the free movement of
services, goods, people and capital or the freedom of establishment
within the EU.
So, while national politicians debate how best to protect
so-called national champion businesses from foreign takeovers, a
threshold question in respect of takeovers of EU-based companies is
whether national governments actually have the power to do so in
light of well-established EU legal principles.
Pfizer–AstraZeneca
U.S.-based Pfizer withdrew its unsolicited offer proposal for
Anglo-Swedish AstraZeneca following the expiry of the May 26, 2014,
"put up or shut up" deadline imposed under the UK's
Takeover Code. It is unlikely, however, that Pfizer's
withdrawal will extinguish the public debate about whether a public
interest test should be applied to foreign takeovers of UK
companies involved in sectors of particular importance to the UK
economy. The same issue arose in the course of Kraft's
unsolicited offer for Cadbury (even though most of Cadbury's
operations were situated outside the UK, Cadbury was considered a
national champion) and, because the issue is gaining political
momentum, particularly on the left of the political spectrum, it
will undoubtedly arise the next time a foreign bidder seeks to take
over a large UK company.
Despite calls from many sides to do so, the British government was
initially reluctant to intervene in the
Pfizer–AstraZeneca transaction. In its view,
it was the shareholders of AstraZeneca who, as its owners, should
decide the outcome of any offer. In addition, given that the UK
benefits from having an open and transparent economy, an
intervention could send a potentially damaging signal that Britain
was not open for business. Furthermore, the political and public
reaction to the Kraft-Cadbury deal led to a significant rewrite of
the UK's takeover regulations to tilt the balance of power in
hostile takeover bids more in favour of the target company and its
board. Despite these changes, Chuka Umunna, the opposition Labour
Party's shadow business secretary, publicly stated that the
party's policy, should it come to power following the May 2015
general elections, would be to subject deals of this nature to a
public interest test and block them if the result was negative. The
timeframe of the deal would have supported this threat given that
it could have taken over a year to clear regulatory hurdles in
Europe, the U.S. and China. Mr. Umunna said that Labour would amend
the criteria for a public interest test on sensitive takeovers to
include the impact on Britain's science and research and
development ("R&D") base. A deal would be blocked if
a panel composed of scientists and businesspeople warned that it
would have an adverse effect.
As a result of mounting public pressure, the UK government gave
the go-ahead for officials to explore the government's options
with Brussels for a new public interest test and its compatibility
with EU law. The Secretary of State for Business, Innovation and
Skills, Vince Cable, has confirmed in an open letter of September
4, 2014, that the challenge the government faces in introducing
such a new test that complies with EU law "should not be
underestimated" but noted that it is not insurmountable.
The EU Dimension
The EC has exclusive jurisdiction over transactions such as
Pfizer–AstraZeneca because the parties' revenues meet the
EU Merger Regulation ("EUMR") thresholds, i.e., they have
an EU dimension. The general rule is that no EU member
state may apply its domestic competition rules to a deal that has
an EU dimension. There are exceptions, but none of them would be
likely to apply to Pfizer–AstraZeneca. For example, the
national competition authority of an EU member state may ask the EC
to refer the merger control review of whole or part of a deal to
that member state if the deal threatens to have specific adverse
effects on competition in that member state. The EC retains
discretion in assessing such request unless the markets are local
(smaller than national). In the Pfizer–AstraZeneca case, the
markets would likely be considered by the EC to be national (not
local) at their narrowest, and, perhaps more importantly, any
adverse effects on competition in any EU member state could be
remedied through concessions given at the EU level. Therefore, even
if the UK Competition and Markets Authority had grounds to make a
referral request, it seems likely that the EC would have denied
it.
However, the EUMR does allow member states to take measures to
protect legitimate public interests other than competition if they
are compatible with the general principles and other provisions of
EU law.
Public Interest Test
The EUMR contemplates three specific areas of legitimate public interest: (i) public security, (ii) plurality of media, and (iii) prudential rules in the financial services sector. None of these would apply to Pfizer–AstraZeneca. While this list is not exhaustive, if an EU member state wishes to take measures based on other public interest grounds (e.g., protection of R&D capabilities), it must obtain clearance from the EC before adopting the measures. If the member state intervenes without approval, it runs the risk of infringement proceedings at the EU level, and unless the member state is able to convince the EC that the grounds for its requests are legitimate—and case law suggests that member states are very rarely successful in this regard—the EC is likely to reject them. In a scenario where it cannot block a deal, a member state's option might be to sabre-rattle enough to negotiate a bilateral arrangement with the foreign acquirer to secure certain protections as a matter of practice.
Europe Has Seen This Before
Various EU member states threatened or implemented protectionist
measures against foreign takeovers in the mid-2000s. The EC showed
then that it was prepared to go to court to uphold EU merger law
and the laws on the free movement of capital. However, although
none of these attempted protectionist measures was compliant with
EU law, they disrupted and interfered with the overall deal
timetable and structure of particular deals.
For example, in 2006, Poland successfully intervened in a merger
involving a Polish company over which the EC had exclusive
jurisdiction. Following the EC's clearance of the acquisition
by Italian bank UniCredito of German bank HVB under the EUMR, the
Polish Treasury instructed UniCredito to sell its shares in BPH (a
Polish subsidiary of HVB). It cited a breach of UniCredito's
obligations under a noncompete clause from a 1999 privatisation
agreement (under which UniCredito acquired Polish bank Polska Kasa
Opieki) and threatened to revoke the agreement failing such a sale.
The EC launched infringement proceedings against Poland on the
basis that the measures infringed both the EC's exclusive
jurisdiction under the EU's merger control regime and the
EU's rules on free movement of capital. The dispute did not
reach court, as UniCredito agreed with Poland that it would divest
certain Polish branches and the BPH brand. Although Poland did not
succeed in blocking the deal, it managed to secure structural
changes that, as a matter of EU law, it arguably ought not to have
been able to secure.
Later that year, Italy sought to prevent Spanish motorway network
operator Abertis from acquiring its Italian counterpart Autostrade,
even though the EC had exclusive jurisdiction over the deal and had
cleared it unconditionally. The EC launched infringement
proceedings against Italy and Italy backed down, but its initial
opposition led to Abertis's withdrawal of the proposed
takeover.
The outcome of such protectionist battles can be unpredictable.
Around the same time as the Italian and Polish cases, the EC took
action against a ruling by the Spanish national energy watchdog,
CNE, imposing 19 conditions for approving German power group
E.ON's €27 billion takeover of Spanish power group Endesa,
despite the fact that Brussels had already cleared the deal. The
CNE ruling required E.ON to divest one-third of Endesa's
electricity generating capacity in Spain. The EC regarded this as
illegitimate and opened infringement proceedings against Spain,
which resulted in a judgment from the Court of Justice, the
EU's highest court, confirming the EC's position that EU
member states should not adopt measures that negatively affect
mergers with an EU dimension and that are not necessary and
proportionate for the protection of a legitimate public interest.
Nevertheless, the judgment came too late. In the face of opposition
from Spain, whose government wanted to create a national champion
and supported a lower bid for Endesa from Gas Natural, E.ON's
offer failed. To Spain's chagrin, Gas Natural subsequently
dropped its bid, E.ON entered the Spanish market through another
deal with Enel, an Italian electricity giant, and Acciona, a
Spanish construction and services group, and Endesa's European
arm's ultimate fate was to be broken up.
The National Dimension
All the above cases concerned deals having an EU dimension. The
legal analysis differs where a deal does not have an EU dimension
and therefore falls under national merger control rules.
In the UK, the government has the power to issue an intervention
notice if it believes that one or more public interest
considerations are relevant to the review of the merger. The effect
of an intervention can be either to allow a merger to proceed when
it might be blocked on competition grounds or to prevent a merger
from proceeding unchecked, in order to protect the public interest.
The UK government may specify a new public interest consideration
at any time, including after a merger has been announced. This is
achieved by an affirmative order, which must be approved by
Parliament within 28 days. For example, faced with the potential
collapse of the UK banking sector following the fall of Lehman
Brothers in 2008, the UK government issued an intervention notice
in the proposed merger of UK banks Lloyds TSB and HBOS on the basis
of a new affirmative order that the stability of the UK financial
system constituted a public interest consideration and this was
relevant to the consideration of this merger. The UK competition
authority (then called the OFT) contended that the deal would
result in a substantial lessening of competition in the UK.
However, the government considered that the stability of the UK
financial system outweighed the competition concerns identified in
the OFT's report and cleared the deal unconditionally on public
interest grounds.
Where a merger does not have an EU dimension, member states may
find it easier to block takeovers provided they comply with EU free
movement rules, such as the free movement of capital and freedom of
establishment, pursuant to which, if intra-EU trade is affected,
restrictions must be necessary, proportionate, nondiscriminatory
and aimed at protecting a legitimate public interest (usually
public health or public security, but also the broader concept of
public policy).
Conclusion
We expect any new attempts to implement protectionist measures
against foreign investments across the EU to meet strong resistance
from the EC. With respect to the UK, given that competition in
R&D within the EU internal market as a whole and not within
each member state is one of the key factors that the EC takes into
account in the review of pharmaceutical mergers under the EUMR, a
request for intervention aimed at protecting the UK's R&D
capabilities risks being rejected or challenged in court by the EC
as being incompatible with the aims of the EU internal
market.
The bottom line is that where a merger falls under the EC's
merger control jurisdiction, there is little, as a matter of law,
that an EU member state can do to block it unless it affects
national defence, media or financial prudential matters.
Nevertheless, a member state may be able to create enough heat and
light to negotiate a bilateral arrangement with the foreign
acquirer to secure protections. That said, such intervention can
have unpredictable results and fail to achieve what the national
government intended. Where a deal does not have an EU dimension,
member states may find it easier to block a takeover provided that
free movement rules, such as the free movement of capital and
freedom of establishment, are complied with.
All of this is taking place, of course, in a broader context in
which global capital/business interests collide with local
political/fiscal interests. The U.S. subjects transactions
affecting national security, including anti-terrorism, to a special
level of security by an interagency federal governmental committee,
called CFIUS, and ultimately the President of the U.S. This
scrutiny frequently imposes restrictions on, and in rare instances
has even resulted in blocks on, takeovers of U.S. companies by
non-U.S. buyers, sometimes in instances such as energy and food in
which the connection to national security interests seems
attenuated. Other countries such as Canada have merger controls
with a broader scope. The key for dealmakers in any cross-border
transaction is, in our view, approaching it in a localized manner,
understanding not only the host country's legal regime but also
developing a multifaceted political, employee and
investor-relations strategy in an effort to defuse the now almost
certain likelihood that local interests will be elevated
independent of shareholder interests. Properly approached in a
localized, multifaceted way, we believe that these often very
conflicting interests can be effectively satisfied without unduly
burdening the buyer's economic rationale for the
transaction.
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