Data-Heavy Silicon Valley Deals May Land in EU Firing Line

  • Revenue-based rules mean certain digital deals escape review
  • EU suggests adding purchase price as criteria for review

The European Union may include purchase prices in the criteria used to trigger its antitrust probes, in a bid to catch more data-heavy transactions in serious merger reviews in another warning shot to Silicon Valley.

The EU’s revenue-based rules mean some deals can currently avoid scrutiny when the target company doesn’t have significant sales even if it “already plays a competitive role, holds commercially valuable data, or has a considerable market potential for other reasons,” the European Commission said in a statement Friday that included the new proposals.

“So far, data has not been a prime concern, but we tend to look more and more into these issues,” EU Competition Commissioner Margrethe Vestager told reporters in Paris on Friday. “Holding big amounts of data is not a problem as such.”

Vestager has signaled a willingness to delve more into how merging companies leverage the trove of data at their disposal. Data was one of the key considerations in the review of Facebook Inc.’s takeover of messaging service WhatsApp Inc. While the EU cleared it without requiring any concessions in October 2014, Vestager said last month officials were now “asking some follow-up questions” about privacy-policy changes.

“The commission is nervous that, under the current rules, potentially problematic merger cases escape its jurisdiction,” according to Adrien Giraud, a lawyer at Willkie Farr & Gallagher LLP in Brussels. “This was triggered by the Facebook/WhatsApp case.”

Microsoft/LinkedIn

Vestager also signaled in June that Microsoft Corp.’s acquisition of professional social network LinkedIn Corp. is another deal where any EU probe would likely focus on its potential to leverage vast amounts of user data.

“Players in the digital economy may have considerable actual or potential market impact that may be reflected in high acquisition values, although they may not yet generate any or only little turnover,” the EU said Friday as it sought feedback on possible changes. “It has been suggested to complement the existing turnover-based jurisdictional thresholds of the EU merger regulation by additional notification requirements based on alternative criteria, such as the transaction value.”

The EU considers the possible legal gap may also affect the pharmaceutical industry.

“There have been indeed a number of highly valued acquisitions, by major pharmaceutical companies, of small biotechnology companies, which predominantly research and develop new treatments that may have high commercial potential, and do not yet generate any or only little turnover,” the commission said.

Giraud said the changes were likely to meet resistance during a consultation period that ends in January. He said that transaction value is often harder to determine than revenue.

“I expect the consultation to reveal some reluctance,” Giraud said. “The Facebook/WhatsApp case was cleared unconditionally after a summary review, thus showing that the commission wasn’t about to miss a truly problematic case.”

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