Procedural developments in EU merger control
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Procedural developments in EU merger control Gun-jumping and provision of incorrect/misleading information Marion Bailly1 · Christos Malamataris1
© Europäische Rechtsakademie (ERA) 2020
Abstract To deliver accurate decisions in tight timelines, the EU merger control system has procedural rules regarding gun jumping (i.e., no implementation of concentrations before notification/clearance) and provision of correct/non-misleading information. Recently, the Court issued two judgments and the Commission adopted three decisions applying these rules. The Courts’ judgments provide guidance on the concepts of partial implementation; single concentration; and fines for gun-jumping. The Commission’s decisions concerned gun-jumping through warehousing schemes (Canon), through veto rights in agreements and during integration discussions (Altice). In GE/LM Wind, the Commission emphasized the need for precise information in merger notifications, including on parties’ pipeline activities. Keywords Mergers · Gun-jumping · Procedural infringements
The views expressed are purely those of the writers and may not in any circumstances be regarded as stating an official position of the European Commission. The authors of this article would like to thank Caroline Tixier for her comments.
B M. Bailly
[email protected] C. Malamataris [email protected]
1
Case Handlers, DG Competition, European Commission, Brussels, Belgium
M. Bailly, C. Malamataris
1 Introduction European Union (“EU”) merger control provides a quick and efficient one-stop shop for companies.1 To be able to deliver accurate decisions within these very tight timelines, the EU merger control system is built on clear procedural rules that companies must fully respect. The remainder of this article focuses on recent developments regarding two sets of procedural rules in the EU merger control regime. The first set of rules relates to the prohibition of gun-jumping, requiring notification and preventing companies from implementing their envisaged concentration pending the Commission’s approval. The second set of rules relates to the prohibition of the submission of incorrect and misleading information during the EU merger review, ensuring that the Commission can fully rely on the information provided by companies. Sect. 2 provides an overview of the relevant provisions in the Merger Regulation on those two sets of rules.2 Sect. 3 discusses recent judgments of the Court of Justice of the EU (“CJEU”) on gun-jumping. Sect. 4 turns to the Commission’s recent decisional practice on the same issue. Finally, Sect. 5 discusses a recent decision of the Commission fining an undertaking for the provision of incorrect information in the merger notification form. Sect. 6 concludes.
2 Gun-jumping and provision of incorrect/misleading information Under the Merger Regulation, concentrations3 having a Union dimension as defined in Article 1 of that Regulation shall be appraised by the Commission with a view of establishing whether they are compatible with the int
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