Kyriakos Fountoukakos is a partner at Herbert Smith Freehills LLP, Brussels, specialising in all aspects of EU and UK competition law, including merger control, cartels and investigations, and litigation before the EU courts. Kyriakos has particular expertise through his background as an EU official, having held positions as a European Commission official at DG Competition’s merger task force and then as a legal assistant in the cabinet of the president of the General Court of the EU.
HOW HAS THE ROLE OF THE COMPETITION LAWYER CHANGED SINCE YOU ENTERED THE FIELD?
Cases are becoming ever more complex. Competition practitioners used to cover all areas of competition law (and they still do to a large extent!) but increasingly lawyers focus on particular areas (e.g. M&A or cartels) and particular sectors. It is important to understand a sector well to give focussed and strategic advice. I have recently done a lot of work in TMT and pharma – two very different sectors each with their own jargon and issues.
WHAT IMPACT HAS THE UK’S DECISION TO LEAVE THE EU HAD ON COMPETITION WORK IN BRUSSELS?
Well the UK has not left yet! So any impact is more limited for the time being. I think one implication is that there will be duplicate investigations and merger filings in both Brussels and London. Having strong capability in both cities will become more important in the future to be able to provide a seamless service to clients.
WHAT ISSUES DOES THE PHARMACEUTICAL INDUSTRY POSE IN THE CURRENT COMPETITION MARKET?
Pharma is a fascinating and competitive sector with companies spending vast amounts on R&D to bring innovative drugs to the market for the benefit of patients. These drugs are protected by patent rights and there is, by definition, a tension with competition law, which tries to open up markets for new entrants (generics, biosimilars). Companies seek advice to ensure they can legitimately protect their IP rights, pursue business strategies and price their products appropriately in compliance with the competition rules. There is also significant M&A activity in the sector spawning complex merger filings.
WHAT IS THE CURRENT APPROACH TO FOREIGN DIRECT INVESTMENT IN EUROPE?
This is a very hot topic at the moment. There is increasing protectionism around the world. Many jurisdictions are applying foreign direct investment (FDI) rules with renewed vigour to stop acquisitions on national security and other public interest grounds. Unlike the US, with its CFIUS regime, the EU does not have a pan-EU regime. It has traditionally been an open economy for foreign investment with the European Commission vetting mergers on pure competition grounds. Many member states do have FDI rules and are beefing them up (eg, the UK has recently lowered thresholds for review of certain mergers in specified sectors). The European Commission has made proposals to establish an EU system of monitoring FDI for the first time. This is pending for adoption so we will see more developments in this area.
WHAT IS THE SIGNIFICANCE OF THE RECENT MERGER ACTIVITY IN THE MEDIA INDUSTRY?
The recent merger wave in the industry has all been about convergence and vertical integration (content providers merging with distributors) and not really about consolidation. This is true for example in the bids for Sky by Fox and Comcast and the acquisition of Time Warner by AT&T (disclosure: I acted for Sky and Time Warner!).
HOW IS THE EUROPEAN COMMISSION APPROACHING CARTELS IN ITS ENFORCEMENT OF COMPETITION RULES?
Cartel enforcement remains a priority for the Commission with continuing activity and record fines. There has been a tendency for cases to settle with perhaps an over-reliance on settlement and leniency as tools in enforcement. There is of course also increasing cooperation with other regulators around the world.
WHAT HAS BEEN YOUR GREATEST ACHIEVEMENT TO DATE?
Can I pick two projects that I really enjoyed working on? One from my time at the European Commission: I was thrilled to have been involved in the team that drafted the EU Merger Regulation rules (and various notices) which were adopted in 2004. And, in my current practice, I have been particularly pleased to have helped set up a dedicated team spanning Brussels and Tokyo to provide seamless EU competition law advice to our Japanese clients. (Japan travel is an added bonus as I love Tokyo!)
Kyriakos Fountoukakos is recognised as “a big name” who stands out for his “in-depth expertise, thorough knowledge and strong business acumen”.
Kyriakos Fountoukakos is the managing partner of Herbert Smith Freehills' Brussels office. He is widely recognised as a leading competition lawyer – ranked in the Who’s Who Legal: Thought Leaders – Competition and other major directories – and has over 20 years of experience in competition law. Kyriakos specialises in all aspects of EU and UK competition law, including merger control, cartels, antitrust investigations and advice, distribution agreements, dominance and competition litigation before the EU courts. He has advised clients across a broad range of industries including TMT, pharmaceuticals, energy and mining, financial services, transport and consumer goods. Kyriakos works closely with the Herbert Smith Freehills network to provide advice on multi-jurisdictional transactions and investigations. He is particularly active in advising clients in Japan and manages Herbert Smith Freehills' cross-border Japan competition practice.
Kyriakos brings particular expertise through his former positions as a European Commission official at DG Competition's merger task force and as a référendaire (legal assistant) in the cabinet of the president of the General Court of the EU. While at the Commission, he dealt with merger transactions and was part of the team that drafted the current Merger Regulation and accompanying notices.
Kyriakos is an officer (committee secretary) of the IBA’s antitrust committee. He actively speaks and writes about competition law, is co-editor of the mergers chapter of Jones and Van der Woude’s EU Competition Law Handbook, and lectures on merger control as part of the LLM programme at UCL.
Kyriakos has studied at the University of Athens (LLB), King's College London (LLM), the University of Cambridge (MPhil in European studies) and Columbia Law School, New York (LLM). He is qualified as a Greek lawyer, as a solicitor in England and Wales and as advocaat in the Brussels Bar. Kyriakos is fluent in English, Greek and French.