The EU General Court confirms the Commission’s decision fining an audio visual company €28M for gun jumping in warehousing scheme (Canon / Toshiba)

On 18 May 2022, the EU General Court (GC) upheld the European Commission’s (EC) € 28 million fine imposed on Canon for gun-jumping in the context of a (somewhat unique) so-called warehousing structure. The judgment confirms that structures such as the one at issue are not allowed under EU law without an express derogation from the EC.

Key points of the judgmentThe GC confirms that the warehousing structure put in place by Canon was in breach of the obligation not to implement its acquisition of Toshiba Medical Systems Corporation ('TMSC') before the EC cleared the transaction (and the obligation to notify the deal prior to implementation). The GC rules that a breach of the standstill obligation does not require that control be acquired in full or in part. By placing TMSC into a warehousing structure, Canon had partially implemented the acquisition, as this structure contributed to a lasting change of control in the target. Background In 2016, Canon Inc. acquired TMSC. The acquisition was carried out through a holding (or a warehousing) structure in two steps: In March 2016, MS Holding (an SPV created for the

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Jérémie Jourdan, Katarzyna Czapracka, Axel P. Schulz, Tilman Kuhn, Peter Citron, The EU General Court confirms the Commission’s decision fining an audio visual company €28M for gun jumping in warehousing scheme (Canon / Toshiba), 18 May 2022, e-Competitions June 2022 - II, Art. N° 106932

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