Global Competition Law is primarly a practitioner's guide presenting the most salient aspects of the major competition laws country by country, giving an overview of their structure and most charasteristic elements.
Global Competition Law also provides insight into possible future developments in the field.

Global Competition Law

Mergers were initially subject to control solely under Section 1 of the Sherman Act (Northern Securities Co. v. United States, 193 U.S. 197 (1904)), holding that formation of a holding company to purchase railroad stock was a “combination in restraint of trade” violating Section 1). In 1914, Congress enacted the Clayton Act, whose Section 7 strengthens measures protecting the public from harmful m …

Section 7 of the Clayton Act

Mergers were initially subject to control solely under Section 1 of the Sherman Act (Northern Securities Co. v. United States, 193 U.S. 197 (1904)), holding that formation of a holding company to purchase railroad stock was a “combination in restraint of trade” violating Section 1). In 1914, Congress enacted the Clayton Act, whose Section 7 strengthens measures protecting the public from harmful mergers (15 U.S.C. § 18). Thereafter, the Celler Kefauver amendments to the Clayton Act were enacted in 1950, closing loopholes in the Clayton Act's coverage and creating a legislative record to guide the interpretation by the courts. The Clayton Act was later amended by the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (HSR Act), modified in January 2001, which requires mandatory pre-merger notification in certain circumstances.

In addition to this legislation, more detailed specifications are provided in the Code of Federal Regulations (16 C.F.R. § 801 et seq). Section 801 defines the terms used in the HSR Act and rules, and specifies which acquisitions are subject to reporting and waiting period requirements. Section 802 establishes exemptions under the HSR Act. Finally, Section 803 contains the procedural rules for complying with the HSR Act.

In 1992, the DoJ and the FTC jointly issued guidelines setting forth the criteria used by both agencies in screening mergers for compliance with the Clayton Act. These 1992 Horizontal Merger Guidelines were further amended in 1997, and were replaced by new Guidelines in 2010. In December 2023, the DoJ and FTC jointly published a new version of the Merger Guidelines, replacing both the 2010 Horizontal and 2020 Vertical Merger Guidelines. The DoJ and FTC also issued Vertical Merger Guidelines in 1984, superseded in June 2020 by new Vertical Merger Guidelines. However, these 2020 Vertical Guidelines were withdrawn in 2021 by the FTC, and have now been fully superseded by the 2023 Guidelines. The guidelines state the criteria that the agencies use in determining whether to challenge a merger in court and thus are not necessarily identical to the case law developed by the courts in applying the Clayton Act.

It should be noted that a presidential decree was signed on July 9, 2021, to foster competition in the American economy. The decree not only addresses technology, it mentions for example the concentration in the hospital environment at the expense of rural areas. The purpose of the Order is to promote innovation and equity. In the text accompanying the decree, it is requested to monitor “the dominant internet platforms, paying particular attention to the acquisition of nascent competitors, serial mergers”. 

The initially limited scope of Section 7 of the Clayton Act has been greatly expanded by subsequent amendments. As originally enacted, the scope of Section 7 was limited to acquisitions of one corporation's stock by another corporation, where both corporations were engaged in interstate commerce. The 1950 amendments expanded the scope of Section 7 to include the acquisition of assets, including, inter alia, patents, trademarks, leases and licenses, as well as asset acquisitions resembling mergers. In 1980, the statute was again amended to include acquisitions by or from individuals or partnerships and certain joint ventures, as well as corporations. In 2005, the rules were once again amended to include in the coverage of merger control acquisitions of controlling interests in unincorporated entities, i.e. partnerships, limited liability companies, cooperatives, certain trusts. On the other hand, acquisitions by foreign Governments (or the United States or any of the States) are not covered (16 C.F.R. § 801.1(a)). This exemption does not apply to acquisitions by governmental corporations, which do come within the scope of Section 7.

Prior to the 1980 amendments, Section 7 did not apply to entities engaged only in local activities, even if those activities may have affected interstate commerce. Section 7 was extended in 1980 to include firms engaged in “any activity affecting commerce.” In this context, commerce has the same meaning as it does in Section 1 of the Clayton Act or Section 4 of the F TCA (Rule 801.1(l)).

Global Competition Law

1468. Section 7 of the Clayton Act

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Les notions juridiques connexes

1468. Section 7 of the Clayton Act

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Les notions juridiques connexes

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