WAMS 2022 Year in Review Takeaways at a Glance (January 2023 Update)

White & Case Global Antitrust Merger StatPak (WAMS)—the first real-time clearinghouse for global merger notification data—has analyzed year-to-date 2022 merger notifications in reporting jurisdictions and has included spotlights on select jurisdictions below.

Key Highlights

• Ukraine: Merger filing activity in Ukraine was down 61% compared to the record-breaking 2021, in which the Antimonopoly Committee of Ukraine reviewed 879 merger notifications. Except for a three-month period of inactivity during the beginning of the war, the Ukrainian competition authority, operating from Kyiv, has tried to maintain normal statutory review timelines, reviewed over 300 mergers throughout 2022, and initiated at least six new Phase II cases in 2022.
• United States: HSR filings were down nearly 40% compared to 2021's record-shattering year, but were 1.1% above the five-year trailing average of U.S. HSR filings.
  • In November 2022—historically the busiest month for U.S. Hart-Scott-Rodino (HSR) filings—there were only 243 filings, which was 60% lower than the November 2021 total of 607 HSR filings and 43% lower than the November 2020 total of 424.
  • Despite announcements of more enforcement (measured by court actions), the Federal Trade Commission and Department of Justice, Antitrust Division have filed a similar number of complaints in 2022 as compared to 2021.
  • In 2023, U.S. merger filing fees have increased dramatically for large deals, increasing resources for US antitrust authorities to pursue aggressive enforcement agendas.
  • Also, in 2023, US antitrust authorities are expected to release new merger guidelines that may significantly alter the existing frameworks for assessing mergers.
• Europe: EU merger filing activity in 2022 decreased by 8.4% compared to 2021, but was down only 5.1% compared to the four-year average (2018 – 2021) and up 6% compared to the 10-year average for full years 2012 – 2021.
  • In 2022, there was a higher intervention rate for merger filings. Between January 1, 2022 and November 30, 2022, the European Commission issued two prohibition decisions, compared to none in full years 2021 and 2020.
  • The EU General Court confirmed the European Commission's jurisdiction to review the Illumina/Grail transaction following a referral pursuant to Article 22, despite the fact that the transaction did not meet the turnover thresholds in any EU Member State. The European Commission published a Frequently Asked Questions and Answers ("Q&A") document which aims to provide practical information with respect to the application of its recently revised Article 22 referral policy.
• Latin America
  • Brazil filing activity rose steeply, up 47% compared to the five-year average for the same period (January – November) and up 6% compared to 2021. From January 1 – November 30, 2022, there were 609 merger notifications in Brazil. In 2021, a record year for Brazil, there were 628 merger notifications by year-end.
  • Merger notifications in 2022 in Mexico kept pace with 2021. From January 1, 2022 – October 31, 2022, transacting parties made 149 merger notifications to the Comisión Federal de Competencia Económica (COFECE), which was similar to the eight-year average for 2014 – 2021
  • 2022 was a significant year for Peru's merger control regime. In 2021, Peru approved a new pre-merger notification regime that expanded Peru's merger control regime to all sectors and industries, when merging parties meet certain revenue thresholds. From January 1, 2022 – June 15, 2022, the Peruvian competition authority, Instituto Nacional de Defensa de la Competencia y de la Protección de la Propiedad Intelectual (Indecopi) received eight notifications, which is double the notifications that it received the prior year.
• Middle East and North Africa:
  • Middle East merger control activity increased in 2022. Saudi Arabia filing activity in 2022 was up by 14% compared to 2021, and in 2022, the Saudi Arabian competition authority blocked its first deal on substantive grounds. Moreover, the Saudi Arabia General Authority for Competition this year issued detailed Merger Review Guidelines to clarify the procedural aspects of merger filings and the substantive standards that apply to merger analysis.
  • Merger control filings in Turkey in 2022 kept pace with 2021 merger filings despite significant changes to Turkish merger control rules and procedure. From January 1, 2022 – June 30, 2022, the Turkish Competition Authority (TCA) reviewed 152 transactions, cleared without commitments 130 transactions, and found 20 transactions non-notifiable.
  • Egypt adopted a new merger control regime, requiring pre-merger clearance under new turnover thresholds and will institute gun-jumping fines that could exceed US$ 20 million. In March 2022, the Egyptian Competition Authority led the effort to launch the Arab Competition Network, which includes 17 competition regimes from the region and aims to coordinate their enforcement efforts.
• Australia: Australia merger assessments were up 39% above the four-year average of 2017 – 2020.
  • The Australian Competition and Consumer Commission has proposed significant merger reform in 2022, namely a proposal to introduce a mandatory and suspensory merger clearance regime and to focus on transactions involving minority interests.

White & Case's Global Antitrust Merger StatPak (WAMS)—the first real-time clearinghouse for global merger notification data—has analyzed year-to-date 2022 merger notifications in reporting jurisdictions and has included spotlights on select jurisdictions below.

Sharp Decrease in U.S. Merger Control Filings in 2022 Compared to 2021's Record Level

View full image: US monthly merger notifications, 2021 vs. 2022 (PDF)

View full image: US merger notifications, 2017 – 2022 (PDF)

EU Merger Filing Activity is Down 8.4% in 2022 Compared To 2021, But 6% Above the 10-Year Historical Average

View full image: EU merger notifications, 2018 – 2022 (PDF)

View full image: EU merger notifications, 2021–2022 (PDF)

Ukraine Competition Authority Continued to Analyze Transactions During Russia's War in Ukraine

View full image: Ukraine merger notifications, 2017 – 2022* (PDF)

Brazil Merger Filing Activity Was Record-Breaking in 2022, 47% Above Historical 5-Year Averages

View full image: Brazil merger notifications, January – November 2017 – 2022 (PDF)

Mexico Merger Filing Activity Remained High in 2022 Despite New Levels of Scrutiny

View full image: Mexico merger notifications, 2014 – 2022* (PDF)

Merger Notifications in Australia Were 39% Above Historical Four-Year Average

View full image: Australia merger notifications, 2017 – 2022* (PDF)

Saudi Arabia Merger Filings on Track for Double-Digit Spike in 2022 Over 2021

View full image: Saudi Arabia merger notifications, 2017 – 2022* (PDF)

Turkey Merger Filing Activity in 2022 Expected to Surpass 2021 Merger Filing Activity

View full image: Turkey merger notifications, H1 2017 – H1 2022* (PDF)

_{The WAMS team is comprised of White & Case's antitrust team, with particular contributions from J. Mark Gidley, George L. Paul, Katarzyna Czapracka, Strati Sakellariou-Witt, Tamer Nagy, Stefanie Benson, Belinda Harvey, Henri Capin Gally, Sezin Elcin Cengiz, Gabriela Baca, Joao Lacerda, Germán Ricardo Macías, Esma Akta, Anastasia Bodnar, Nina Frie, Daniel North, Ashley Stoner, Rucha Phadtare, Tony Lopez, and Nathan Martin.}

_{White & Case means the international legal practice comprising White & Case LLP, a New York State registered limited liability partnership, White & Case LLP, a limited liability partnership incorporated under English law and all other affiliated partnerships, companies and entities.}

_{This article is prepared for the general information of interested persons. It is not, and does not attempt to be, comprehensive in nature. Due to the general nature of its content, it should not be regarded as legal advice.}

_{© 2023 White & Case LLP}