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William Pen

Specialised Subjects

Agency Law, Commercial Law, Commercial Property Law, Company Law/Business Law, Constitutional/Administrative Law, Consumer Law, Contract Law, Criminal Law, Employment Law, European Law, Finance Law, General Law, Housing Law, Intellectual Property Law, International Law, Jurisprudence, Land Law / Property Law, Landlord and Tenant Law, Law, Negligence Law, Planning/Environmental Law, Shipping Law, Tax Law, Trusts Law

I have a master’s degree in Investment Management at Coventry University. I have been awarded Distinction for this degree. I am also currently studying a professional certificate in accounting with the Association of Chartered Certified Accountants. During my spare time I volunteer at Coventry Refugee Centre in their Befriending project. My job is to meet the asylum seekers socially on a regular basis and provide appropriate support, signposting clients to agencies for specialist advice and guidance where necessary. Before my master’s degree, I gained two years working experience in the banking industry of Malaysia.

How has the current financial crisis affected domestic competition rules?

Question

“Domestic competition rules and EU state aid rules are an attempt to ensure anti-competitive activities are punitively sanctioned. However, during the current financial crisis, States have sought to put rules governing competition to one side to protect the national interest.
Discuss in light of the nationalisation of Northern Rock and Bradford & Bingley, and the takeover of HBOS by Lloyds TSB.”

Answer

This essay will discuss in the light of the nationalisation of Northern Rock and Bradford & Bingley, and the takeover of HBOS by Lloyds TSB, the statement that, “Domestic competition rules and EU state aid rules are an attempt to ensure anti-competitive activities are punitively sanctioned. However, during the current financial crisis, States have sought to put rules governing competition to one side to protect the national interest”.

Nationalisation can be defined as an act of taking a certain industry or assets into public ownership by the government or state. A takeover can be defined as the acquisition of control, usually of a smaller company by another company. It is usually achieved by buying shares in the target company with the agreement of all its members or only its controllers, by purchases on the Stock Exchange, or by means of takeover bid .

State aid, according to European Union (EU) rules , is aid from a Member State to business, which the Treaty of Rome declares is generally incompatible with the Common Market, the reason being that financial aid favours selected businesses and has the potential to distort competition and affect trade between EU Member States, as stated in Article 87 of the European Commission (EC) Treaty . However, our examination of the cases of Bradford & Bingleyand Northern Rock suggests that the EC may be able to approve state aid in compatibility with the Treaty on the basis of national interest in accordance with Articles 87 and 88 of the EC Treaty, during a financial crisis. Also, from our investigation of the takeover of HBOS by Lloyds TSB, such a takeover could be argued to be unlawful under the United Kingdom (UK) Competition Act 2002 and the UK Enterprise Act 2002. However, given the fact that the Government has sought to change the law, and classified the bank crisis as falling under public interest, the rules governing competition in relation to such a takeover can be set aside to protect national interest.

Therefore, as we examine the above issues in this essay we will also consider the reasoning behind the EU state aid rules and refer to certain UK cases, and the implications involved in decisions on mergers and takeovers.

Once nationalisation has taken place, it can be argued that it promotes accountability and diverts profit maximisation goals (shareholders’ interests) to public interest goals (e.g. depositors’ interests). Furthermore, nationalisation can be argued to be more concerned with social interests. At the same time, the current action taken in nationalising Northern Rock and Bradford & Bingley can also be argued to be anti-free market. Alan Greenspan, the former US Federal Reserve Chairman, explained to the Financial Times that: “…it may be necessary to temporarily nationalise some banks in order to facilitate a swift and orderly restructuring” .

Therefore, nationalisation might solve the problem of banks being reluctant to lend to firms due to great anxiety about creating bad loans. Furthermore, with nationalisation, banks can cut costs and prevent a moral hazard because shareholders, employees and managerial staff share responsibility. In other words, the government will have a great deal of influence on the payment of bonuses to employees, which have been viewed by many people as inappropriate; Gordon Brown during his term of office vowed to take “aggressive” action to sweep away “the old short-term bonus culture” .

In the cases of Northern Rock and Bradford and Bingley, the UK Government decided to nationalise these institutions in order to confront a worsening financial position . After the global credit markets froze in September 2008, Bradford and Bingley faced unprecedented margin and liquidity problems. Therefore, on Saturday the 27th of September 2008, the UK Financial Services Authority (FSA) confirmed that the company could no longer meet its threshold conditions for operating as a deposit taker under the Financial Services and Markets Act 2000 and FSA rules . As a result, on Monday 29 September 2008, the UK Treasury brought forward an order (the ‘Bradford & Bingley Transfer Order’) to nationalise all shares in Bradford & Bingley and sell certain Bradford & Bingley assets to Abbey National plc, a subsidiary of Banco Santander SA . As with the case of Northern Rock, the authority for nationalising Bradford & Bingley was governed by the Banking (Special Provisions) Act 2008.

However, it can be argued that there is a difference between the reasons behind the nationalisation of Bradford & Bingley and the Northern Rock. The nationalisation of Northern Rock specifically indicated that the purpose of the order was to ‘protect the public interest’. Therefore, in such circumstances the UK Treasury had to provide financial assistance to Northern Rock. On the other hand, it can be argued that the reasons behind the nationalisation of Bradford & Bingley were indicative of the aim of ‘maintaining the stability’ of the UK financial system because in such circumstances the UK Treasury considered that there would be a serious threat to banking stability (contagion risk) if the nationalisation was not made . Therefore, the nationalisation of Bradford & Bingley can be said to be in the light of the ‘doctrine of necessity’, which suggests, from the UK Treasury’s point of view, that necessary action had to be taken in order to prevent a serious threat to the UK economy from materialising .

In a more laissez-fair banking system, state aid can be argued for, instead of nationalisation, since it provides liquidity and capitalisation, but unlike nationalisation it can be argued that state aid does not lead to restructuring. However, the most controversial issue in relation to state aid is the distortion of competition within the EU and domestic markets. As a result, the higher the state aid, the more distortive the impact felt in the market. For this reason the Lisbon Council Conclusions included a commitment to reduce overall levels of aid within the EU. As an example, let us look at the case of Celtic Energy; although it is not a banking case it is relevant to state aid competition concerns. Celtic Energy complained under the state aid rules that the massively subsidised German mines were using aid to undercut prices of anthracite on the UK market. The EC investigated and found that aid had indeed distorted competition and ordered the German companies to repay DM 20m back to the German State. The German Government paid compensation to Celtic .

In the above case, the Commission followed a statement of principle under Article 87 and 88 of the Treaty of Rome that any form of aid, whether provided directly by the State, or indirectly ‘though State resources’, is incompatible with the Common Market if it distorts or threatens to distort competition within the Community. However, not all state aid is unlawful. The Commission may, as an exception permitted by the Treaty, formally approve aid measures within certain limits (depending on the size, sector and location of the beneficiary). These ‘limits’ are detailed in the frameworks, guidelines and regulations.

Subsidies granted to individuals or enterprises are not covered by Article 87 of the EC Treaty and do not constitute state aid. Also, in order to ensure that anti-competitive activities of state aid are punitively sanctioned, unauthorised state aid is illegal and, as a consequence, aid payments can be suspended; firms may have to repay the state with interest; policies may have to be altered; legislation may need to be amended; recipients can be sued by a competitor for damages; and companies can also take the government or granting authority to court for damages against illegal aid recovered .

However, in some circumstances, it can be argued that government intervention is necessary for a well-functioning and equitable economy. Therefore, the Treaty leaves room for a number of policy objectives for which state aid can be considered compatible. As a result, the EC has established a system of rules under which state aid is monitored and assessed within the EU . Under such a system the EC granted a formal approval to a rescue aid package for Bradford & Bingley in less than 24 hours . Recently, the EC has put in place guidance in line with the EC Treaty to Member States regarding the measures that can be taken in order to assist banking institutions in this current banking crisis .

Now let us examine the case of Sweden which notified the Commission on the 10th of February 2009 about its measures to provide state aid for a recapitalisation scheme for fundamentally sound banks. In October 2008, the Swedish Government came up with measures to calm the financial market turmoil. The measures included the provision of a state guarantee scheme for the debt issued by the financial institutions and rescue aid to banks in difficulty. As the EC assessed the Swedish measures, Article 87(1) provision was highlighted. However, the EC agreed with the Swedish Government that the scheme constituted state aid within the meaning of Article 87(1) of the EC Treaty in favour the eligible financial institutions.

In this case, the eligible institutions included banks and mortgage institutions, incorporated and operating in Sweden and also included Swedish subsidiaries of foreign institutions, provided they met minimum capital adequacy under Swedish law. For groups of two or more eligible institutions, only one entity was eligible for capital under the measures.

It was also pointed out that since the scheme would confer an economic advantage on the beneficiaries and strengthen their position in Sweden and the EU, the scheme could distort competition and could affect trade between Member States. However, in the EC’s view the advantage is provided through state resources and is selective since it benefits only beneficiaries under the scheme.

After considering all the factors the EC found in favour of the Swedish Government that the scheme constituted state aid within the meaning of Article 87(1) of the EC Treaty. In the case of Carnegie Bank , using the same criteria,the EC approved, under EC Treaty state aid rules, emergency liquidity assistance worth €225 million (SEK 2.4 billion) that the Swedish authorities had granted to Carnegie Investment Bank AB.

It must be noted that the EC has sole competence to decide and review what constitutes state aid. As a result, the EC has the ultimate say in all state aid matters, subject to limited review by the European Court of Justice. Also, the EC has considerable powers to monitor, control, and restrict the forms and levels of aid given by the Member States to their industries. In monitoring, controlling and restricting state aid schemes the EC can order a state to discontinue and recover any unlawfully granted aid as in the case of the Commission of the European Communities v Federal Republic of Germany .

In the case of the Federal Republic of Germany, an application was lodged on the 24th of May 2000 in accordance with the second subparagraph of Article 88(2) EC, and in doing so, the EC sought a declaration that the Federal Republic of Germany had failed to comply with the EC’s decision 2000/392/EC of 8 July 1999 regarding aid granted to the public bank, Westdeutsche Landesbank-Girozentrale (WestLB). In its application, the EC complained that Germany had failed to adopt within the prescribed time limit, in accordance with Article 88 of the EC Treaty, the measures necessary to recover the aid that it unlawfully granted to the aforementioned bank and, at the same time had failed to comply with the obligations imposed by the fourth paragraph of Article 249 EC and Article 3 of the decision. This is because state aid must notified to the EC under Article 88 EC in order to allow the EC to verify whether the operation complies with the established market economy private investor principle and, if it is found not to do so, to verify its compatibility with the Common Market. However, the irony of the EC decision in the case of the Commission of the European Communities v Federal Republic of Germany can be seen when one looks at the case of Northern Rock and the failure of the UK authorities to notify in time as per Article 88 of EC Treaty.

In the case of Northern Rock, the UK authorities notified the measures to the EC on the 26th of November 2007. The measures included the provision of a liquidity facility which was granted by the Bank of England on the 14th of September 2007; a state guarantee for existing accounts granted from the 17th to 20th of September 2007; and, the extension of the Bank of England liquidity facility as restated on the 9th of October 2007. The EC concluded that the measures taken from the 17th to 20th of September 2007 as well as the measures decided on the 9th of October 2007 did constitute state aid per Article 87(1) of the EC Treaty. Since the UK had put aid into effect in breach of Article 88(3) of the EC Treaty, the aid measures constituted non-notified state aid. However, the EC went on to decide that since these UK measures were compatible with the Common Market as rescue aid as per Article 87(1) of the EC Treaty,no objection was raised against the measures.

In accordance with the position taken by the EC, it can be therefore argued that the EC will allow state aid measures to be implemented as per Article 87(1) of the EC Treaty,regardless the fact that Article 88(3) of the EC Treatymight not have been fully complied with. However, the EC will still request further information or communication, as can be noted in the particular decision of Northern Rock, where it was stated that: “The Commission expects your authorities to respect their commitment to communicate to the Commission, no later than 17th of March 2008, a credible and substantiated restructuring plan or a liquidation plan or a proof that the aid measures granted have been repaid in full and that the guarantees have been terminated”.

Therefore, aid schemes consisting of guarantees or recapitalisation schemes can be cleared by the EC quickly if they fulfil conditions which guarantee that they are well-targeted and proportionate to the objective of stabilising financial markets and contain certain safeguards against unnecessary negative effects on competition .

In order to counter the negative effects on competition, the following conditions must be met:

  • Non-discriminatory access, in order to protect the functioning of the Common Market by making sure that eligibility for a support scheme is not based on nationality;
  • State commitments limited in time in such a way that it is ensured that support can be provided as long as it is necessary to cope with the current turmoil in financial markets but will be reviewed and adjusted or terminated as soon as improved market conditions so permit;
  • State support clearly defined and limited in scope to what is necessary to address the acute crisis in financial markets while excluding unjustified benefits for shareholders of financial institutions at the taxpayer’s expense;
  • An appropriate contribution of the private sector by way of an adequate remuneration for the introduction of general support schemes (such as a guarantee scheme) and the coverage by the private sector of at least a significant part of the cost of assistance granted;
  • Sufficient behavioural rules for beneficiaries that prevent abuse of state support, for example, expansion and aggressive market strategies on the back of a state guarantee;
  • An appropriate follow-up by applying structural adjustment measures to the financial sector as a whole and/or by restructuring individual financial institutions that have had to rely on state intervention .

Therefore, on the basis of national interest during this financial crisis, state aid can be allowed even if it can distort competition. However, it can also be argued that the EC’s guidelines are not clear in regards to when review and adjustment or termination of such state aid can be carried out. In other words, how and when will the EC decide that there must be an end to state aid provision as a result of the end of the financial crisis?

Also, mergers and takeovers, that can be viewed as anti-competitive, can also be allowed on the basis of national interest. On the 18th of September 2008, Lloyds TSB and HBOS announced that they had reached agreement on the terms of a recommended acquisition by Lloyds TSB of HBOS . In this particular acquisition, HBOS shareholders received a 0.83 Lloyds TSB share for every 1 HBOS share . This deal was intended to be a scheme which would require approval of both HBOS and Lloyds TSB shareholders, the sanction of the court and other regulatory approvals from, for example, the FSA and the Office of Fair Trading (OFT) . The acquisition became effective and was completed around the end of 2008/early 2009, regardless of the fact that the acquisition contradicted the anti-competition laws governed by the Enterprise Act 2002 and Competition Act 2002. Furthermore, it must be noted that since over two thirds of the turnovers of Lloyds TSB and HBOS are in the UK, the transaction was not subject to the EC merger regime . As a result the Enterprise Act 2002 governed this transaction .

HBOS is the largest mortgage lender in UK with a market share of about 20 percent, whilst Lloyds bank is the fourth largest with a market share of eight percent. As a result, the merger could have been blocked by the Competition Commission (CC) , as in 2001 whenLloyds sought to take over Abbey National plc . However, in order for the Lloyds/HBOS merger to go through, the UK Government intervened using powers under section 42 of the Enterprise Act 2002. Under s.42 the Secretary of State can issue an intervention notice to the OFT. However, the intervention by the Government through the Secretary of State cannot be on a political basis, but in the public interest. In this case it could be argued that the Government was seeking to stabilise the economy and avoid a downturn such as that witnessed in the case of the Lehman Brothers . Furthermore, public interest considerations can also be found in s.58 of the Enterprise Act 2002, even though prior to September 2008 only national security and media public interest considerations had been specified.

The issuing of an intervention notice based on public interest considerations must be approved by parliament as soon as practicable. In the case of HBOS, the notice was approved by parliament on the 6th of October 2008 and it was stated that: “The financial services sector and banking sector in particular, are vital to the rest of the economy, and that financial instability in the financial service sector can have a damaging effect on the wider economy” . During the parliamentary debate the issue of the new public interest consideration raised a lot of questions on whether the takeover necessarily required government intervention to overrule competition concerns; however, the order was approved as Lord Razzall said that: “Only a lunatic would attempt to vote against it at this sensitive time” .

As a result, parliament changed the law in order to enable the Government to successfully clear and broker the deal, since the banking industry was faced with a crisis. Alistair Darling, the then Chancellor of Exchequer stated that: “The Government would change the law to ensure that the transaction went through, as financial stability must trump competition fears” . Without Government intervention, the merger should have been referred to the CC for further investigation in accordance with the Enterprise Act 2002. However, there is a residual power invested in the Secretary of State, acting on behalf of the Government, to intervene in the public interest . John Hutton, the then Secretary of State for Business and Enterprise suggested that public interest considerations include “the stability of the UK financial system” .

On the basis of public interest, the Secretary of State has the power to decide whether or not to refer a merger to the CC for an in depth investigation or to clear it subject to undertakings. However, section 45 of the Enterprise Act 2002 provides that there is a necessity of the Secretary of State to take into account the effect of a merger on competition as well as on the public interest. Regardless of this, the Secretary of State can still decide that public interest overrides the competition concerns expressed the OFT because the Secretary of State can refer cases to the CC .

However, it must also be noted that intervention by the Secretary of State cannot stop the OFT from carry its own investigations in order to review the impact of the merger or takeover on competition and public interest grounds (as would have been proposed by the Secretary of State). Such an investigation by the OFTon the Lloyds TSB/HBOS takeover was reported to the Secretary of State on the 24th of October 2008. The OFT report found a realistic prospect that the merger would lead to a substantial lessening of competition in relation to PCAs, banking services for small and medium-sized enterprises, and mortgages . In spite of this, Lord Mandelson (the Secretary of State) cleared the merger on public interest grounds, without making a reference to the CC and without the imposition of undertakings .

As a result, the implications of the takeover of HBOS by Lloyds TSB can be argued to have resulted in a concentration of economic power from the perspective of competition law. Concentrations can increase economies of scale, which can be beneficial to the economy. However, in most cases such a concentration can result in the misuse of market power; thereby reducing the number of competitors (deterring competitors or creating barriers to new competitors to enter the market), which can result in a severe impact on consumer deals. This implication was also considered in the case ofMerger Action Group v Secretary of State for Business, Enterprise and Regulatory Reform [2008] , in which an unincorporated association applied for a review of Secretary of State for Business, Enterprise and Regulatory Reform’s decision not to refer a proposed financial merger to CC on the basis of section 120(1) of the Enterprise Act 2002.

Section 120(1) provides that: “[A]ny person aggrieved by a decision of the OFT, [OFCOM],the Secretary of State or the Commission under this Part in connection with a reference or possible reference in relation to a relevant merger situation or a special merger situation may apply to the Competition Appeal Tribunal for a review of that decision”. Dismissing the implication of anti-competitive practice over public interest, the court held that there was no basis for the allegation that the issue of the continuing need for the merger was not properly considered by the decision maker nor did the court find that was there any substance in the claim that the respondent had wrongly taken account of the views of the FSA on the competitive strength of HBOS in preference to the position of the OFT, or had failed to have regard for the EC’s latest position on state aid .

Also, it must be noted that an implication of a merger or takeover’s implication to the enterprise can be that of recapitalisation, for example an increase in the general level of indebtedness of the company through the issuance of additional debt securities or entering into bank loans; the issuance of ordinary or convertible preference shares to return surplus cash to the shareholders; an exchange offer pursuant to which ordinary shares are exchanged for new equity and/or debt securities; the purchase of assets which may raise competition law and other regulatory problems for the hostile offeror, while simultaneously deploying the target company’s surplus cash .

The implication of a merger on competition was also discussed in the case of British Sky Group plc v Competition Commission 2008, although this case does not involve banking firms. The important issue here is that of competition implications. Under a review of the CC’s decision that company (S)’s purchase of shares in another broadcaster (X) created a relevant merger situation likely to reduce competition, the CC still concluded that a relevant merger situation existed which was likely to result in a substantial lessening of competition in the United Kingdom market for television services, with adverse effects on the public interest.

To conclude, it can be argued that the nationalisation of Northern Rock and Bradford & Bingley, and the takeover of HBOS by Lloyds Banklessen competition within the EU and the UK markets. Therefore, under Articles 87 and 88 of EC Treaty,such state aid and nationalisation is unlawful. Moreover, according to the UK Enterprise Act 2002 and Competition Act 2002, the takeover of HBOS by Lloyds TSB is also unlawful. However, since the EC has provided an exception on the grounds of public interest for such state aid and nationalisation, and the UK Government has changed the law to include banking crisis as an issue of public interest on which the Secretary of State can intervene, the competition concerns can be set aside in favour of the public interest thereby rendering such a takeover, state aid and nationalisation lawful.

BIBLIOGRAPHY
Books
Kenyon-Slade; Mergers and Takeovers in the US and UK; 1ST Edition; 2004; Oxford University Press
Hansard, HL vol.704, col.855; October 16, 2008
Oxford Law Dictionary, 6th Edition, 2006
Articles
Abbey National by Lloyds TSB IN 2001; www.abbey.com/
Bradford and Bingley plc, Interim Management Statement (22 Apr 2008); ibid, Interim Financial Report (29 August 2008).
Craig Pouncey; Ingrid Bukovics; Merger control, credit-crunch style: UK Government intervention in the Lloyds/HBOS merger; European Competition Law Review 2009
Financial Services Authority, News Release, Bradford and Bingley plc (29 Sept 2008).
http://ec.europa.eu/competition/state_aid/
http://news.sky.com/skynews/Home/Politics/Bankers-Grilling-Day-Two-Bonus-Row-RBS-Chief-Executive-Stephen-Hester-Pressured-To-Stop-Payments/Article/200902215220613
http://www.berr.gov.uk/whatwedo/businesslaw/state-aid/index.html
www.opsi.gov.uk/si/si2008/em/uksiem_20082645_en.pdf
http://news.bbc.co.uk/1/hi/business/7615931.stm
HBOS; http://www.lloydsbankinggroup.com/?WT.mc_id=HBSO10901D_HBOShomepage
Lisbon Council; www.europarl.europa.eu/Summits
Lloyds; http://www.lloydstsb.com/
Ioli Tassopoulou, Mergers: banking sector-financial stability, European Competition Law
Review; 2009
Krishna Guha and Edward Luce in Washington; Financial Times: Greenspan backs bank nationalisation; Published: February 18 2009 00:06 http://www.ft.com/cms/s/0/e310cbf6-fd4e-11dd-a103-000077b07658.html?nclick_check=1
N Jansen Calamita; The British Nationalisations: an international law perspective; International and Comparative Quarterly Law; 2009
P Trowbridge and B Livesey, Bradford and Bingley Is Seized; Santander Buys Branches,                                        andBloomberg.com(29Sept2008),availableathttp://www.bloomberg.com/apps/news?pid=newsarchiveandsid=ajIkm9fWTtRI.
Statute
EC Treaty
Enterprise Act 2002
Companies Act 1985
Competition Act 2002
Cases
British Sky Group Plc v Competition Commission [2008] CAT 25; [2008] Comp. A.R. 223
Carnegie Bank NN 64/2008
Commission of the European Communities v Federal Republic of Germany, 2000/392/EC; Case C-209/00
Merger Action Group v Secretary of State for Business, Enterprise and Regulatory Reform 2009.S.L.T.10

Oxford Law Dictionary, 6th Edition, 2006, page 526.

Art 87 of the European Community Treaty.

Art 87(1) of the EC Treaty states: “Save as otherwise provided in this Treaty, any aid granted by a Member State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods shall, in so far as it affects trade between Member States, be incompatible with the Common Market.”

http://news.sky.com/skynews/Home/Politics/Bankers-Grilling-Day-Two-Bonus-Row-RBS-Chief-Executive-Stephen-Hester-Pressured-To-Stop-Payments/Article/200902215220613

Bradford & Bingley plc, Interim Management Statement (22 Apr 2008); ibid, Interim Financial Report (29 August 2008). See also P Trowbridge and B Livesey, Bradford & Bingley Is Seized; Santander Buys Branches,                                        and Bloomberg.com (29 Sept 2008), available at http://www.bloomberg.com/apps/news?pid=newsarchive&sid=ajIkm9fWTtRI N Jansen Calamita; The British Nationalisations: an international law perspective; International & Comparative Quarterly Law; 2009.

Financial Services Authority, News Release, Bradford & Bingley plc (29 Sept 2008).

The Bradford & Bingley plc Transfer of Securities and Property etc Order 2008, SI 2546/2008.

N Jansen Calamita; The British Nationalisations: an international law perspective; International & Comparative Quarterly Law; 2009.

Ibid.

Lisbon Council; www.europarl.europa.eu/summits/

http://ec.europa.eu/competition/state_aid/overview/index_en.html

http://www.berr.gov.uk/whatwedo/businesslaw/state-aid/index.html

http://ec.europa.eu/competition/state_aid/overview/index_en.html

Ibid.

http://ec.europa.eu/competition/sectors/financial_services/financial_crisis_en.html

http://europa.eu/rapid/pressReleasesAction.do?reference=IP/08/1495&format=HTML&aged=0&language=EN&guiLanguage=en: The guidance is based in particular on EC Treaty rules allowing for aid to remedy a serious disturbance in the economy of a Member State (Article 87.3.b of the EC Treaty). The EU state aid rules require that measures taken do not give rise to disproportionate distortions of competition, for example by discriminating against financial institutions based in other Member States and/or allowing beneficiary banks to unfairly attract new additional business solely as a result of the government support. Other requirements include that measures must be limited in time and foresee adequate contributions from the private sector. The Commission will aim to approve schemes that comply with this guidance very quickly (within 24 hours, if possible).

Ibid.

This Guarantee was approved by the Commission on the 29th of October 2008; case N 533/2008 as amended by the Commission’s decision of 29 January 2009 in case N 26/2009.

Article 87(1) of the EC Treaty provides that any aid granted by a Member State or through state resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods shall, in so far it affects trade between Member States, be incompatible with the Common Market.

NN 64/2008.

2000/392/EC; Case C-209/00.

2000/392/EC; Case C-209/00.

Ibid.

Ibid.

Ioli Tassopoulou, Mergers: banking sector-financial stability, European Competition Law Review; 2009.

http://www.investorrelations.lloydstsb.com/media/pdf_irmc/ir/2008/2008Aug_LTSB_Acquires_HBOS.pdf

Financial Services Authority www.fsa.gov.uk/

Office of Fair Trading www.oft.gov.uk/

Under the ‘two-thirds rule’, a merger is subject to national merger control provisions rather than the jurisdiction of the European Commission, even where the thresholds in Regulation 139/2004 of 20 January 2004 on the control of concentrations between undertakings (ECMR) are met. The rule applies where each of the parties concerned achieves more than two-thirds of their EC turnover in one and the same Member State. The UK merger control system is unusual in that merger notifications are voluntary. The Office of Fair Trading (OFT) can ‘call in’ mergers for review where it considers that the jurisdictional test is met. A statutory timetable for the OFT’s review only applies when the parties choose to notify. In the present case, no formal notification was made.

Ibid.

HBOS; http://www.lloydsbankinggroup.com/?WT.mc_id=HBSO10901D_HBOShomepage

Lloyds; http://www.lloydstsb.com/

See proposed acquisition of Abbey National by Lloyds TSB IN 2001; www.abbey.com/

www.abbey.com/

http://news.bbc.co.uk/1/hi/business/7615931.stm

www.opsi.gov.uk/si/si2008/em/uksiem_20082645_en.pdf

Hansard, HL vol.704, col.855; October 16, 2008.

Ibid.

The Secretary of State also has power to intervene on public interest grounds in certain situations where the merger is not subject to review by the OFT due to insufficient size (the special public interest intervention regime, in ss.59-66 of the Enterprise Act 2002).

Ioli Tassopoulou, Mergers: banking sector-financial stability, European Competition Law Review; 2009.

S.46(2) Enterprise Act 2002.

The OFT made it clear that its belief that the merger would result in a substantial lessening of competition (SLC) was not based on the balance of probabilities and that it was instead belief of a “realistic prospect” under the “may be the case” standard. It stated that: “It is by no means a foregone conclusion that the [Competition Commission] would reach an SLC finding on the balance of probabilities standard” at the end of its review period (OFT Report, para.10). As no remedies had been offered by Lloyds, and in the restricted time for its review, the OFT was unable in its report to recommend undertakings in lieu of reference to the CC (OFT Report, para.15). Craig Pouncey; Ingrid Bukovics; Merger control, credit-crunch style: UK Government intervention in the Lloyds/HBOS merger; European Competition Law Review 2009.

BERR, “Peter Mandelson Gives Regulatory Clearance to Lloyds TSB Merger with HBOS”, (press release 2008/253, October 31, 2008). Craig Pouncey; Ingrid Bukovics; Merger control, credit-crunch style: UK Government intervention in the Lloyds/HBOS merger; European Competition Law Review 2009.

2009.S.L.T.10.

Ibid.

Section 425 to 427 of the Companies Act 1985.

Kenyon-Slade; Mergers and Takeovers in the US and UK; 1st Edition; 2004; Oxford University Press.

[2008] CAT 25; [2008] Comp. A.R. 223