Gun-jumping in mergers: why should the pre-clearance phase be monitored more closely?

Par HLG Avocats, le 22/07/2019

Commissioner Margrethe Vestager, in issuing a statement of objections against Altice, announced: “if companies jump the gun by implementing mergers prior to notification and clearance, they undermine the effective functioning of the EU Merger control system”. In another speech later on that day, she emphasized that the Commission takes gun jumping very seriously.

 

Under Article 7(1) of the EC Merger Regulation (ECMR), concentrations with a Community dimension cannot be implemented before they have been declared compatible with the single market.

 

In case undertakings do not comply with the procedural requirements relating to merger notifications (Art.7 (1)), the Commission can impose: fines of up to 10% of the turnover of the undertakings concerned.

 

Historically, the Commission and the national competition authorities have not been active in detecting and punishing practices of gun-jumping. However, there had been cases where the Commission investigated gun-jumping allegations.

 

The Commission has occasionally asked questions in the course of merger investigations about possible gun-jumping issues:

  • In Bertelsmann/Kirch/Premiere, the Commission issued an order demanding that the parties stop jointly marketing pay-TV decoders before the Commission had issued its approval decision[1].

 

  • In December 2007, according to press reports, the Commission together with the UK Office of Fair Trading held unannounced inspections (dawn raids) at two polyvinyl chloride (PVC) producers, Ineos and Hydro Polymers, to verify whether the parties had started implementing the Ineos/Kerling transaction before the Commission issued a decision, through the disclosure of confidential information[2].

 

  • In Yara/Kemira/GrowHow, the Commission questioned whether Yara’s acquisition of a 30.05% stake in GrowHow before the Commission’s approval decision fell within the exceptions provided in Art.7(2) of the EC Merger Regulations and whether it would initiate Article 14 fining proceedings.

 

It seems that from the late nineties to the early twenties, the Commission had been lenient towards undertakings. However, according to cases decided over the past ten years, it seems the Commission has changed its mind and is adopting a much more aggressive enforcement policy on gun-jumping violations, by opening investigations or punishing undertakings for implementing a transaction which has not received a clearance foreseen in the EU law.

 

Here is an overview of gun-jumping cases.

 

The European competition authorities have seemed to follow the European Commission’s policy regarding gun jumping practices. Indeed, the French competition authority sentenced Castel Frères in 2013 and Altice in 2016. In addition, the German Federal Cartel Office imposed a €4 million fine.

 

It seems that the European Commission drove European competition authorities on its ongoing monitoring of gun jumping practices.

 

Therefore, undertakings must proceed with greater caution than in the past and implement internal procedures during the pre-clearance phase to ensure that they do not jump the gun.

[1] Case IV/M.993, Bertelsmann/Kirch/Premiere, Commission decision of 27 May 1998 and Commission press releases of 5 Nov. 1997 (IP/97/593), 1 Dec. 1997 (IP/97/1062) and 15 Dec. 1997 (IP/97/1119).

[2] Case COMP/M.4734, Ineos/Kerling, Commission decision of 30 Jan. 2008 and Commission press release of 13 Dec. 2007 (IP/07/573).

 

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