DG Comp will inform the parties by midnight tonight if they will launch a “Phase II” investigation into whether or not the planned tie-up will be anti-competitive.
SJ Berwin is representing Universal and Slaughters is advising BMG Publishing in all aspects of their planned merger, including the potential probe by DG Comp.
Universal is a subsidiary of French media conglomerate Vivendi, while BMG Music Publisihing currently belongs to Slaughers’ client Bertelsmann of Germany.
London-based Philippe Chappatte and Brussels-based John Boyce at Slaughters are the competition partners leading the team and will advise on any probe. Relationship partner Charles Randell is advising Bertelsmann on its disposal of BMG Music Publishing.
At SJ Berwin, head of competition Stephen Kon is advising Universal Music.
DG Comp’s investigation can last up to 90 days under EU law. A combination between Universal and BMG Music Publishing would create the biggest music publisher in the world.
DG Comp’s decision to investigate was triggered by the fact that the Court of First Instance overturned merger clearance given to Sony BMG by the Commission. Sony and BMG have had to resubmit their applications to merge.
But a merger between Universal and BMG Music Publishing would not be as controversial. As a combined entity, it would have a market share of 22 per cent, below the threshold to be of substantial concern to the Commission.
Meanwhile, changes to DG Comp’s leniency rules in relation to cartel investigations come into force today.
Companies have been able to apply for leniency by whistle-blowing to the Commission about collusion in their industry. Only the first company to approach the Commission about an alleged cartel is eligible for leniency. In an attempt to encourage more whistle-blowing, the Commission has clarified its position on leniency and added several sweeteners.
The most important change is the introduction of a marker system. Essentially, a company needs only to provide skeleton information about a cartel for the company to land on DG Comp’s radar as eligible for leniency. The company can then prepare more detailed information to reduce or avoid any potential fine.
The marker system means that DG Comp can inform a company immediately whether or not it was the first to supply information and therefore be eligible for leniency.