CONFERENCE : MERGERS - EUROPEAN UNION - FRANCE - GUN JUMPING - CHANGE OF CONTROL - CLEARANCE

Mergers and gun jumping: What are companies actually allowed to do? (New Frontiers of Antitrust - Paris, 11 June 2018)

Gun jumping has come to the forefront of antitrust enforcement in a number
of important jurisdictions, including the European Union and France.
 A consensus has emerged, particularly regarding infringements resulting
from the acquisition of control through shares and voting rights and the central criterion of “contribution to a change of control.” Nevertheless, in practice, competition authorities have increasingly relied on approaches according to which individually unproblematic behaviors may be construed together
as constitutive of gun jumping. In addition, while recent decisional practice have confirmed that merging parties may legitimately take certain preparatory steps to implement or close a transaction before clearance has been obtained, uncertainty remains as to the precise scope of these acceptable preparatory measures, complicating the business integration of merging parties.

Introduction Antoine Winckler [1] Partner, Cleary Gottlieb Steen & Hamilton, Brussels 1. In recent years, gun jumping has come to the forefront of antitrust enforcement in a number of important jurisdictions, including the European Union and France. Indeed, both the European Commission (“Commission”) and French Competition Authority (“FCA”) have adopted stricter stances towards the enforcement of procedural rules, including merger control standstill obligations. This has led to a number of record fines for the early implementation of concentrations. Since 2016, Altice alone, the multinational telecoms giant, has been ordered by regulators to pay over €200 million in fines for gun-jumping infringements. The financial repercussions that fall from the early implementation of

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  • Cleary Gottlieb Steen & Hamilton (Brussels)

Quotation

Antoine Winckler, Mergers and gun jumping: What are companies actually allowed to do? (New Frontiers of Antitrust - Paris, 11 June 2018), September 2018, Concurrences Review N° 3-2018, Art. N° 87852, www.concurrences.com

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