Papers by David Reader
Competition Law International, 2018
As part of preparations for life after Brexit, the UK Government has introduced wide-ranging prop... more As part of preparations for life after Brexit, the UK Government has introduced wide-ranging proposals for strengthening its powers to scrutinise mergers, acquisitions and investments that raise national security concerns in specific sectors. The proposals seek to extend the scope that the government currently has to intervene in transactions in order to ensure the national security of the UK, while simultaneously minimising any adverse effect these reforms may have on predictability and procedural transparency. Yet, while the government’s proposal document makes all the right noises with regard to investor certainty, the resurrection of ministerial decision-making under the proposed reforms could yet act to deter foreign direct investment by creating perceptions of an assessment process based on subjective criteria.
European Competition and Regulatory Law Review, 2017
In the face of momentous change in global politics – which has already begun to usher in a new ag... more In the face of momentous change in global politics – which has already begun to usher in a new age of nationalism, populism and protectionism – the European Commission continues to afford primacy to its competition-based approach to merger assessment. However, the Commission is facing increasing pressure from some EU Member States to respond to the emerging challenges of globalisation by adopting a more protectionist industrial strategy that would shelter strategic industries from ‘unwanted’ foreign takeovers. Not since the global financial crisis has the ‘pressure to protect’ been so palpable, and this renewed scrutiny will test the Commission’s resolve to continue enforcing its strict competition-based approach. This article reflects on the recent developments that have left EU merger control at a crossroads in terms of how it proceeds to react to anti-globalisation sentiment. It also examines a radical proposal to task the Commission with the role of analysing foreign takeovers that arise in the EU’s strategic sectors. It finds compelling evidence to suggest that the existing regime provides a legal basis for the Commission to afford greater consideration to public interest factors in merger cases, which would allow it to undertake this task in lieu of legislative reform.
Journal of Antitrust Enforcement, 2017
A notable effect of ‘Brexit’ is that it will create new freedoms for the UK to shape its competit... more A notable effect of ‘Brexit’ is that it will create new freedoms for the UK to shape its competition policy outside the EU, but these freedoms come at a cost and could prove damaging to competitive markets. In merger control, the UK will be free to employ more frequent public interest interventions (especially for foreign acquisitions), but these could be misused and create uncertainty. In State aid, there will be pressure for greater protection of UK industries through State interventions, but such freedom will constrain, and be constrained by, the UK’s new trade arrangements and could prove wasteful. In antitrust, the UK will be free to set its own path, for example by fully criminalizing its cartel enforcement regime, but cooperation with other EU competition agencies will dwindle. The UK also faces difficulties in continuing to benefit from the significant level of fines currently imposed by the European Commission on its behalf. The article concludes that any immediate changes to policy should be avoided and that it may even be necessary to legislate to limit the exercise of some new freedoms. We also note how, for current EU/UK levels of enforcement to be maintained, the Competition and Markets Authority’s resource requirement may have to be doubled.
CCP Working Paper 16-3, 2016
In the wake of recent convergence initiatives, many countries now adopt a competition-based appro... more In the wake of recent convergence initiatives, many countries now adopt a competition-based approach to merger control assessment. Given the emphasis that is placed on competition criteria in these assessments, the influence of wider ‘public interest’ criteria has become increasingly marginalised. Yet despite this marginalisation, many merger regimes continue to afford scope to public interest criteria – which poses a number of questions regarding the feasibility of further convergence internationally. This paper conducts an empirical study of 75 domestic merger regimes to draw two sets of insights. Firstly, the paper identifies the different means by which states have chosen to accommodate public interest criteria within their domestic merger laws. It finds that most states will: (i) treat the public interest as an ‘exception’ to a competition-based test or frame it within sector-specific policy, and (ii) assign decision-making powers to either a national competition authority or a politician. Secondly, the paper explores the socio-economic factors that may influence how a state choses to accommodate public interest criteria. Statistical analysis suggests that factors traditionally thought of as influential (such as economic development) have only a negligible correlation with the chosen method of accommodation. In contrast, the ‘effectiveness’ of domestic governance within a state appears to demonstrate a significant correlation with how states choose to frame public interest criteria within legislation.
CPI Antitrust Chronicle, 2014
When US pharmaceutical giant Pfizer launched a takeover for its UK-listed counterpart AstraZeneca... more When US pharmaceutical giant Pfizer launched a takeover for its UK-listed counterpart AstraZeneca in May 2014, much discussion centred around the possible adverse impact that the merger could have on the UK’s science base, particularly in light of Pfizer’s questionable track record for asset-stripping and cutting investment in Research and Development (“R&D”). Although the proposed £69 billion (US $117 billion) takeover ultimately crumbled, the prospect of Pfizer returning with an improved offer in the near future has led many to ask whether the UK should adopt a tougher stance on foreign takeovers that threaten the national interest. The UK Business Secretary has since proposed new safeguards to counteract these perceived threats; but do they represent the best course of action in practice?
CPI Antitrust Chronicle, 2014
In the wake of a high-profile public inquiry into media culture and an on-going court case regard... more In the wake of a high-profile public inquiry into media culture and an on-going court case regarding phone-hacking, the state of the UK media has rarely featured so prominently on the political agenda. One of the key debates to have emerged regards the ownership of the British media and, in particular, how ownership can be regulated in a way that facilitates diversity and media plurality.
On 4 February 2014, the Communications Committee of the House of Lords published a report in which it proposes a number of changes to the regulation of media ownership in the UK. Among the most notable of these is the proposal to grant decision-making powers to the national media regulator, Ofcom, in respect of mergers that raise potential media plurality concerns. At present, this power is assigned to a government minister but, owing to some recent controversies, the ability of politicians to undertake this role impartially has been called into question. The NewsCorp/BSkyB case, in particular, is a testament to the potential for politicians to be exposed to undue influence and bias in the media sector. Re-allocating the decision-making role to Ofcom could overcome this risk of regulatory capture, but it could equally amount to substituting one problem for another.
This article explores the current assessment relating to media mergers in the UK and proceeds to scrutinise the House of Lords' proposals to amend this procedure.
Blog Posts & Short Articles by David Reader
After Melrose plc last week formalised its £7.4bn hostile takeover bid for the Armed Forces suppl... more After Melrose plc last week formalised its £7.4bn hostile takeover bid for the Armed Forces supplier GKN plc, Business Secretary Greg Clark is facing renewed pressure from the Labour Party and the UK’s largest trade union, Unite, to block any forthcoming deal on national security grounds. Moreover, in response to questions over the transaction, the Prime Minister has herself declared that ‘the government as a whole will always act in the UK national interest’ when faced with such takeovers. Yet, although there is every possibility that the resulting merger would be subjected to national security scrutiny, there is only a very remote chance that the transaction would be blocked outright.
CCP Research Bulletin, 2017
A momentous shift in global politics has ushered in a new age of nationalism, populism and protec... more A momentous shift in global politics has ushered in a new age of nationalism, populism and protectionism, which has led many to question the European Commission’s resolve to continue enforcing its strict competition-based approach to merger control. The election of President Trump, the impending realisation of Brexit and a sharp increase in the number of Chinese takeovers of EU firms have, to varying degrees, fuelled anxieties in several EU Member States, who fear the EU’s openness to foreign direct investment (FDI) may have negative implications for security and the economy. In his recent article, David Reader reflects on recent developments that have given rise to this anti-globalisation sentiment and why it may leave EU merger control at a crossroads.
CCP Research Bulletin, 2016
A new CCP study estimates that 88% of countries with merger control continue to incorporate some ... more A new CCP study estimates that 88% of countries with merger control continue to incorporate some form of public interest criteria, despite the global rise of a competition-based approach to merger assessment. In practice, these countries have adopted numerous different approaches to accommodating the public interest, which raises a number of intriguing questions regarding (i) the feasibility of harmonising cross-border merger procedure, and (ii) the role that the public interest is perceived to play in modern-day merger control.
Competition Policy Blog, 2016
After two years at its helm, the Chief Executive of the UK’s Competition & Markets Authority (CMA... more After two years at its helm, the Chief Executive of the UK’s Competition & Markets Authority (CMA), Alex Chisholm, is stepping down to become the new Permanent Secretary at the Department for Energy and Climate Change. His departure marks the end of an era for the competition watchdog which, despite only becoming fully operational in April 2014, has reached a number of key milestones during his tenure. In a recent speech reflecting on the CMA’s achievements over the last two years, Chisholm made reference to notable progress on enforcement activity, efficient merger control and, of course, some very high-profile market inquiries. His verdict, then, is that there is cause for optimism as the authority embarks on a new chapter. But the outgoing CEO is also mindful of ‘the 3 big challenges’ that lay ahead for his successor. Perhaps the most striking of these ‘harder nuts to crack’, as Chisholm puts it, is the CMA’s ability to deal with ‘challenges to the primacy of competition analysis when sensitive mergers give rise to calls for public interest interventions’.
Competition Policy Blog, 2014
When US pharmaceutical giant Pfizer sought to acquire its UK-listed counterpart AstraZeneca in 20... more When US pharmaceutical giant Pfizer sought to acquire its UK-listed counterpart AstraZeneca in 2014, discussion centred around the supposed adverse impact that the merger could have on the UK’s science base, particularly in light of Pfizer’s questionable track record for asset-stripping and cutting investment in R&D. Although the proposed £69 billion takeover ultimately crumbled, the prospect of Pfizer returning with an improved offer led many to ask whether the UK should adopt a tougher stance on foreign takeovers that threaten the national interest. The UK’s Business Secretary, Vince Cable MP, would go on to propose new safeguards in an effort to counteract these perceived threats – but do they represent the best course of action in practice?
Competition Policy Blog, 2014
On 4 February 2014, the House of Lords Select Committee on Communications published its Report on... more On 4 February 2014, the House of Lords Select Committee on Communications published its Report on Media Plurality proposing a number of changes to media ownership regulation in the UK. Among the most notable is a proposal to grant decision-making powers to the media regulator, Ofcom, in mergers raising potential media plurality concerns. At present, this role is performed by the Secretary of State but, as has been noted in a previous post on this blog by Andreas Stephan, the ability of politicians to undertake this role impartially has been called into question. In particular, the close contact between a NewsCorp lobbyist and a Special Adviser to (the then Culture Secretary) Jeremy Hunt during the NewsCorp/BSkyB assessment, as exposed by the Leveson Inquiry, highlights the sheer extent to which politicians can be subjected to undue influence in the media sector. Re-allocating the decision-making role to Ofcom could overcome this problem, but it could equally amount to substituting one problem for another.
CCP Research Bulletin, 2013
The competition reforms brought about by the Enterprise and Regulatory Reform Act 2013 have inten... more The competition reforms brought about by the Enterprise and Regulatory Reform Act 2013 have intentionally overlooked the uncertainties that still engulf ‘public interest mergers’ in the UK. The Secretary of State retains a residual power to propose new public interest exceptions and there is speculation of what form these new interests could take. This note alludes to some of the proposals for new public interest criteria and considers the implications of these on the future of UK merger control.
Consultation Responses by David Reader
Response to South African Department of Economic Development: Invitation to comment on Competitio... more Response to South African Department of Economic Development: Invitation to comment on Competition Amendment Bill, 2017. January 2018.
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Papers by David Reader
On 4 February 2014, the Communications Committee of the House of Lords published a report in which it proposes a number of changes to the regulation of media ownership in the UK. Among the most notable of these is the proposal to grant decision-making powers to the national media regulator, Ofcom, in respect of mergers that raise potential media plurality concerns. At present, this power is assigned to a government minister but, owing to some recent controversies, the ability of politicians to undertake this role impartially has been called into question. The NewsCorp/BSkyB case, in particular, is a testament to the potential for politicians to be exposed to undue influence and bias in the media sector. Re-allocating the decision-making role to Ofcom could overcome this risk of regulatory capture, but it could equally amount to substituting one problem for another.
This article explores the current assessment relating to media mergers in the UK and proceeds to scrutinise the House of Lords' proposals to amend this procedure.
Blog Posts & Short Articles by David Reader
Consultation Responses by David Reader
Inquiry page: https://beisgovuk.citizenspace.com/ccp/nsiireview/
Inquiry page: https://beisgovuk.citizenspace.com/ccp/nsiireview/
Inquiry Page: https://www.parliament.uk/business/committees/committees-a-z/commons-select/business-energy-industrial-strategy/inquiries/parliament-2017/pre-legislative-scrutiny-of-draft-tariff-cap-bill-inquiry/
Consultation page: https://www.ofcom.org.uk/consultations-and-statements/category-3/public-interest-test-sky-fox
Link to Inquiry page: https://www.parliament.uk/business/committees/committees-a-z/commons-select/business-innovation-and-skills/inquiries/parliament-2015/industrial-strategy-16-17/
On 4 February 2014, the Communications Committee of the House of Lords published a report in which it proposes a number of changes to the regulation of media ownership in the UK. Among the most notable of these is the proposal to grant decision-making powers to the national media regulator, Ofcom, in respect of mergers that raise potential media plurality concerns. At present, this power is assigned to a government minister but, owing to some recent controversies, the ability of politicians to undertake this role impartially has been called into question. The NewsCorp/BSkyB case, in particular, is a testament to the potential for politicians to be exposed to undue influence and bias in the media sector. Re-allocating the decision-making role to Ofcom could overcome this risk of regulatory capture, but it could equally amount to substituting one problem for another.
This article explores the current assessment relating to media mergers in the UK and proceeds to scrutinise the House of Lords' proposals to amend this procedure.
Inquiry page: https://beisgovuk.citizenspace.com/ccp/nsiireview/
Inquiry page: https://beisgovuk.citizenspace.com/ccp/nsiireview/
Inquiry Page: https://www.parliament.uk/business/committees/committees-a-z/commons-select/business-energy-industrial-strategy/inquiries/parliament-2017/pre-legislative-scrutiny-of-draft-tariff-cap-bill-inquiry/
Consultation page: https://www.ofcom.org.uk/consultations-and-statements/category-3/public-interest-test-sky-fox
Link to Inquiry page: https://www.parliament.uk/business/committees/committees-a-z/commons-select/business-innovation-and-skills/inquiries/parliament-2015/industrial-strategy-16-17/