June 2024 – ECLA

Another EU Antitrust Action Against Microsoft: A New Chapter in a Longstanding Saga

Posted on June 26, 2024 by admin

On June 26, 2024, the European Commission issued a Statement of Objections to Microsoft, indicating its preliminary view that the tech giant has violated EU antitrust laws by tying MS Teams, its communication, collaboration, and conferencing platform, to its popular productivity and corporate software suites, Office 365 and Microsoft 365. This move marks the latest development in the EU’s ongoing scrutiny of Microsoft’s market practices, particularly concerning its software bundling strategies, one which has ongoing for the better part of two decades.

The Commission notes that Microsoft’s bundling of Teams with its core SaaS (Software as a Service) productivity applications limits consumer choice and stifles competition. The integration of Teams within Microsoft’s widely used productivity suites ostensibly provides it an unfair distribution advantage over competitors, who provide individual software solutions. This practice, the Commission argues, restricts competition and innovation in the market for communication and collaboration tools, potentially violating Article 102 of the Treaty on the Functioning of the European Union (TFEU), which prohibits the abuse of a dominant market position.

ECLA/GCLC General Counsel Roundtable: Cross-border M&A transactions and Pan-European transformation projects

Posted on June 25, 2024 by admin

Cross-border M&A transactions and Pan-European transformation projects was the topic of today’s Virtual General Counsel Roundtable with 15 general counsel from 8 different European countries 🇪🇺. Key take-aways from the very active discussion among participants and presentation by Alain Raemy and Björn Otto from CMS Corporate/M&A Group:

💡 PMI Importance: Effective post-merger integration is critical for M&A success, ensuring the new organisation meets objectives and achieves synergies.
💡 Strategic Complexity: M&A goals are complex and vary by scenario, with integration challenges depending on the transaction type.
💡 Early Planning: Successful integration requires detailed early planning, avoiding delays until post-closing to merge companies.
💡 Integration Considerations in Due Diligence: Early integration considerations should be included in the due diligence questions.
💡 Planning Integration Steps: Concrete planning of integration steps should begin as soon as the transaction structure is determined.

Stay tuned for more upcoming sessions virtually and physically and meet us personally in Berlin, Germany on 7/8 October for the “General Counsel Forum Europe” – the annual expert meeting for GC across Europe: www.ecla.eu

Many thanks to CMS and the ECLA and General Counsel Leadership Circle Europe network!

Status of Legal Professional Privilege Across Europe

Posted on June 12, 2024 by admin

The societies of Europe are based on the rule of law. At the heart of this important principle lies the Legal Professional Privilege…

However, the profession of in-house counsel is still not recognised everywhere in Europe and our colleagues’ clients do still not benefit from legal professional privilege (LPP) everywhere. Nevertheless, there has been remarkable developments in the last 3 years in many European countries, that recognise the importance of in-house legal advise for companies and their compliance systems, e.g:

✏ France: Drafting of a bill in process to recognise LPP for in-house counsel
✏ Switzerland: Recognition of LPP to in-house counsel in civil proceedings
✏ Netherlands: LPP confirmed for Dutch in-house counsel by supreme court
✏ Spain: Confirmation that LPP of in-house counsel must be respected
✏ UK: LPP granted to foreign in-house counsel even contrary to ‘touch-base’ an

alysis

Still the ‘LPP Landscape Across Europe’ map shows too many jurisdictions that are not shaded in green.

Learn more about the current status of the profession of in-house counsel in ECLA’s newly published ‘EUROPEAN COMPANY LAWYERS REVIEW 2024/25’. This comprehensive book of 250 pages offers a unique overview of the situation in 30 countries in Europe and beyond. You can order your personal copy now at: https://ecla.martenmannis.eu.online/review/

ECLA will continue fighting for the profession of in-house counsel guided by our motto: Independence by Design!

ECLA/GCLC General Counsel Roundtable: European M&A trends 2024

Posted on June 11, 2024 by admin

Locked box vs. completion accounts and purchase price adjustments in Europe vs. the US…?

ECLA and the General Counsel Leadership Circle Europe held a highly interesting and active virtual roundtable discussion on ‘European M&A trends 2024’ together with CMS Corporate/M&A Group represented by Louise Wallace and Laura Christin Stein, including 14 general counsel from 8 different European countries 🇪🇺.

Key observations in the market taken from CMS’ European M&A Study 2024:

💡 The M&A market remains under pressure due to economic uncertainties, higher interest rates, slow GDP growth in the US and Europe and geopolitical threats but also proves to be resilient
💡 Earn-out agreements are overall decreasing in M&A deals, indicating a shift towards more predictable deal terms
💡 Liability caps remained relatively stable across various purchase price segmentation in the years from 2010 to 2024
💡 W&I insurances are used in M&A deals across Europe with the use remaining stable
💡 ESG considerations still on the rise: Due diligence continue to focus on sustainable and responsible investments

Overall there is reasons to be cheerful in 2024:
📣 Global Q1 M&A volume rose 5-10% vs. 2023
📣 Banks lending again. Monetary policy should ease

📣 Risk of a sharp economic downturn is receding
📣 PE likely to return as they seek exit strategies and redeployments
📣 Seismic shifts driving M&A e.g. AI, sustainability, tech-enabled consumer class
📣 Favourable sector dynamics e.g FS consolidation, Tech-driven M&A, Oil & Gas consolidation, renewables

The new CMS study on European M&A trends can be downloaded here: https://cms.law/en/deu/publication/cms-european-m-a-study-2024

ECLA’s next general counsel roundtable discussion is scheduled for 25 June 2024 at 10:00 CEST and will focus on ‘Cross-Border M&A Transactions and Pan-European Restructuring / Transformation Projects’.

Stéphanie Fougou Elected President of ECLA

Posted on June 5, 2024 by admin

ECLA is pleased to announce the election of Ms. Stéphanie Fougou, SVP, General Counsel and Board Secretary at Technicolor Group SA, as its new president, effective immediately. This transition marks a significant milestone in the association’s history as it continues to advance its mission of strengthening the corporate legal profession across Europe.

Ms. Fougou brings a wealth of experience to the role, with a decades-long background in legal leadership positions at Executive Committee level. She is the first woman to serve as president of the association. Under her stewardship, ECLA will continue growing the representation and promotion of the profession at both European and at international levels, while further building relationships with existing organisations whose goals are aligned. Furthermore, she particularly aims to target contemporary legal and regulatory challenges and enable ECLA to provide increased value to corporate lawyers across Europe.

Comments from Leadership

“I am honoured to take on this role and continue the great work that ECLA has already done.” said Ms. Fougou. “My primary goal will be to enable ECLA to act as the European relay for national corporate lawyer associations and provide increased value to company lawyers across Europe. As an umbrella association, ECLA will strive to become both a lightning rod for regulatory and other advocacy-related challenges and act as an information and networking hub for all corporate lawyers based in Europe, among which the reflexions about the future of Corporate In-House Lawyers facing IA challenges and the CSR systemic litigation risks for companies. I look forward to collaborating with all our 22 member associations and stakeholders to achieve our objectives and with our 6 additional board members.”

Her tenure starts at a challenging time, as both geopolitical challenges and technological advancements have significantly impacted legal work in recent years. ECLA’s outgoing President Jonathan Marsh has been elected honorary president of the association, and commented as follows: “Current challenges require leadership to be both sharp and experienced in leading legal departments and advocating for the profession. I am delighted that our beloved association gains such an industry titan to steer us through the unknown. I am excited to see how ECLA will evolve further.”

Stephanie Fougou will serve as the 17^th president of the association. She has been elected for a 2-year term which will last until Spring 2026

About ECLA

The European Company Lawyers Association (ECLA) was founded in 1983 and is the umbrella organization of 22 different national associations of in-house counsel working in companies and organizations. For more than 41 years, ECLA has been committed to the profession of company lawyers throughout Europe and accounts for approximately 70,000 professionals in its network and represents the more than 160,000 company lawyers across Europe.

Download the press release here