Greater scrutiny for Europe's outsourcing deals

The Commission's latest updated guidelines--and its interpretation of the 1990 Merger Regulation, which defines the Commission's regulatory role for mergers--now include a section on how an increasing number of joint-venture outsourcing deals can fall under the terms of the Merger Regulation.

This means that where an outsourcing supplier is buying all or part of the IT assets being outsourced by a company, the deal may need to go to the European Commission for approval.

The threshold test for deals that will need Commission approval is if the supplier has sales of $6.8 billion globally and $340 million in Europe, and if the potential sales of the outsourced IT operation also exceeds $340 million per year.

Deals that have already come under European Commission scrutiny include IBM Italia's IT-services deal with Fiat Group's Business Solutions unit in 2001 and Deutsche Lufthansa's IT joint venture with technology services company EDS in 1995. Most deals will be approved within five weeks but a small number that may need greater scrutiny could take up to four months to get the go-ahead from the Commission.

Phil McDonnell, head of competition at London-based law firm Addleshaw Goddard, said companies will have to factor this extra time and possible delay into their outsourcing plans from the start.

"You have got to build in some time into your procurement to give the supplier time to go through the hoops," McDonnell said. "You could also use it to identify suppliers who will give you least aggravation--it might give the smaller suppliers potential differentiation."

Suppliers will also need to factor these likely delays into their planning, but McDonnell also warned that the Commission may eventually start to restrict the number of outsourcing deals any one supplier can hold with companies in a particular sector because of competition regulations.

"There will come a point where a regulator will say a supplier has too many deals in the same sector," he said. "I don't think we are at that point yet, but that is where it is heading."

Andy McCue of Silicon.com reported from London.