CK Hutchison Holdings Ltd. won its European Union court fight to overturn the EU’s veto of its bid for rival O2, in a blow to Competition Commissioner Margrethe Vestager that may make it easier to get deals past merger watchdogs.
In a surprise ruling on Thursday, the bloc’s General Court toppled the European Commission’s 2016 merger ban, citing numerous mistakes in the EU regulator’s analysis and saying regulators failed to prove the tie-up would have harmed rivals and customers.
While the case is largely symbolic — the companies have expressed no plans to resurrect the deal — it’s one of a growing number of challenges to the EU’s merger review process. Regulators wield huge power to extract concessions from companies under threat of blocking a transaction they see as harmful to competition and likely to increase prices for consumers.
“This is a resounding victory not only for Hutchison but for the entire European mobile telephony industry,” said Douglas Lahnborg, a lawyer at Orrick. “It’s probably the most important court ruling over the last 15 years in the field of mergers.”
In its decision, the commission rejected Hutchison’s argument that combining its Three unit with Telefonica SA’s U.K. business would help the company invest more in new networks and technology. Instead, it found that it risked increasing prices. The EU’s opposition to merging two mobile networks in the same country also killed other potential deals, effectively pushing many telecoms operators to combine with cable companies or look at cross-border transactions instead of direct national rivals.
Vestager, now in her second term as EU commissioner, made her name with tough antitrust enforcement, making the EU one of the most-feared jurisdictions for global deal-making. The court’s criticism may weaken regulators’ ability to demand companies make the changes they want to get a deal through.
Hutchison said Thursday’s ruling forces the commission “to fundamentally revisit its approach to merger reviews in this key sector.”
‘Brake’ on Deals
“The commission’s approach has unfortunately acted as a brake on, or in a number of cases prevented, vital industry consolidation in Europe which would have resulted in significant new investment, innovation and benefits for European consumers and industry,” the company said in a statement.
The commission in Brussels said it will carefully study the judgment, which can be appealed.
EU merger enforcement has deterred most attempts by European telecoms operators to buy direct rivals, often deals that would have reduced the number of mobile phone providers in one country from four to three. While EU officials repeatedly say there’s no “magic number” for telecoms, they rarely approve so-called 4-3 deals.
The ruling is a step “in the right direction” for operators “toward consolidation,” said James Barford, a telecom analyst at Enders Analysis. He said 4-to-3 mergers “seem to have paused” since the 2016 decision “because it appeared the European Commission was taking a different view on them.”
Telefonica has moved on in the meantime, a spokeswoman said, referring to a new deal the company recently announced.
O2 agreed earlier this month to merge with Liberty Global Plc’s Virgin Media to create the U.K.’s largest phone and internet operator. Virgin Media doesn’t operate its own mobile network in the U.K., and currently rents connectivity from BT Group Plc to offer wireless services to customers. Virgin’s combination with O2 may face an easier ride from regulators because it combines fixed and wireless assets, not two wireless companies.
While the U.K. has quit the EU since the deal dispute erupted, the legal challenge highlights how tough antitrust enforcement has swayed telecommunications M&A activity in the region.
Virgin Media, O2 Combine to Create New Telecom Giant
In their ruling, the Luxembourg-based EU judges cited the EU’s failure “to show that the effects of the concentration on the network-sharing agreements and on the mobile network infrastructure in the U.K.” would have hindered competition significantly.
They also accused the commission of failing to prove “to the requisite legal standard” the effects of the deal on prices and quality of services for consumers. The tribunal found there was not sufficient proof either that the transaction would have significantly impeded competition on the wholesale market.
The case is: T-399/16 CK Telecoms UK Investments v Commission.
(Updates with lawyer comment from fourth paragraph)
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