Gun jumping

Foreword Gun jumping: an overview of EU and national case law

Most merger control regimes, including in the EU, are both mandatory and suspensory. This means that mergers must first be notified to the relevant competition authority and approved, before they can be implemented. A violation of these requirements is often referred to as “gun-jumping.” Until recently, the European Commission (Commission) has pursued very few gun-jumping cases. The Commission’s recent actions, however, and tough talk by EU Competition Commissioner Vestager demonstrate that the Commission is becoming increasingly intolerant of gun-jumping, as well as other procedural breaches. The Commission’s increasingly stringent approach to gun-jumping was most recently demonstrated by its €28 million fine imposed on Canon for partially implementing its acquisition of Toshiba Medical Systems Corporation (TMSC) before notification and approval. A year earlier, the Commission set a new global record with its €124.5 million fine on Altice for early implementation of its acquisition of PT Portugal. With Commissioner Vestager’s unusual appointment to a second term as Competition Commissioner, this trend is highly likely to continue. This article discusses the types of conduct that may lead to a finding of gun-jumping and the Commission’s and national competition authorities’ (NCAs’) enforcement history in this area. In conclusion, this article offers some practical guidance on avoiding gun-jumping issues in future transactions.

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Norton Rose Fulbright (Brussels)
Norton Rose Fulbright (Brussels)

Mergers

The Australian Competition Authority investigates the impact of a completed acquisition on the supply chain for bulk grain export through the Port of Newcastle (Qube Logistics / Newcastle Agri Terminal)
Australian Competition and Consumer Commission (Canberra)
ACCC investigates Qube’s completed acquisition of Newcastle Agri Terminal* The ACCC will conduct an investigation into potential competition issues arising from Qube’s (ASX: QUB) completed acquisition of the Newcastle Agri Terminal. As the investigation relates to a completed acquisition it will (...)

The EU General Court upholds a decision from the Commission sanctioning a telecommunications operator for gun jumping and clarifies in its decision the applicable rules for gun jumping (Altice / PT Portugal)
McDermott Will & Emery (Brussels)
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On September 22, 2021, the EU General Court (GC) upheld a decision from the European Commission (Commission) by which it fined telecommunications operator Altice for gun jumping (T-425/18, Altice Europe v Commission). In particular, the GC affirmed that the Commission could impose two separate (...)

The EU General Court dismisses a French telecommunications company’s action against the Commission’s decision to impose two fines totaling €124.5 million in connection to its acquisition of a Portuguese competitor (Altice / PT Portugal)
General Court of the European Union (Luxembourg)
The General Court dismisses Altice Europe’s action against the Commission decision imposing two fines totalling €124.5 million in connection with the acquisition of PT Portugal* However, it orders the amount of the fine relating to the breach of the obligation to notify the concentration to the (...)

The EU General Court upholds the Commission’s decision to fine a telecommunications company for gun jumping but grants a limited 5% reduction of part of the €124.5 million fine imposed (Altice / PT Portugal)
Skadden, Arps, Slate, Meagher & Flom (London)
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Skadden, Arps, Slate, Meagher & Flom (Brussels)
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Skadden, Arps, Slate, Meagher & Flom (Brussels)
On September 22, 2021, the European General Court issued its judgment upholding the decision by the European Commission (Commission) to fine Altice for gun-jumping in the acquisition of Portugal Telecom (PT) in 2015. The General Court did grant Altice a limited 5% reduction of part of the €124.5 (...)

The EU Commission raises the stakes by issuing a statement of objections against a healthcare company in which it threatens to adopt interim measures to prevent potentially irreparable damage on competition (Grail / Illumina)
Van Bael & Bellis (Brussels)
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Van Bael & Bellis (Brussels)
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Van Bael & Bellis (Brussels)
Less than a month ago, the European Commission (the Commission) announced that it would open an investigation to determine whether Illumina’s decision to acquire Grail pending its review of that transaction under Regulation 139/2004 on the control of concentrations between undertakings (the (...)

The EU Commission announces interim measures following a breach of the standstill obligation between two healthcare companies specialized in genomic sequencing (Grail / Illumina)
DG COMP (Brussels)
Mergers: The Commission adopts a Statement of Objections in view of adopting interim measures following Illumina’s early acquisition of GRAIL* The European Commission has sent a Statement of Objections to Illumina and GRAIL informing them of the interim measures it intends to adopt following (...)

The US FTC presents a report on nearly a decade of unreported acquisitions by Big Tech companies
US Federal Trade Commission (FTC) (Washington)
FTC Staff Presents Report on Nearly a Decade of Unreported Acquisitions by the Biggest Technology Companies* Report analyzes acquisitions by Alphabet/Google, Amazon, Apple, Facebook, and Microsoft At an open Commission meeting today, the Federal Trade Commission staff presented findings from (...)

The US FTC publishes a report summarizing findings from a study of unreported Big Tech acquisitions
Hogan Lovells (Washington)
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Hogan Lovells (Washington)
On 15 September 2021, the Federal Trade Commission (FTC) published findings from its retrospective study of the non-reported acquisitions by five large technology companies from 2010-2019 (the Report). Focusing on 616 transactions valued at above US$1 million, the Commissioners noted four key (...)

The US DoJ announces the fining of a Wall Street bank CEO for gun-jumping (Richard Fairbank / Capital One)
US Department of Justice (Washington)
Capital One CEO to Pay Civil Penalty for Violating Antitrust Pre-Transaction Notification Requirements* The Justice Department’s Antitrust Division, at the request of the Federal Trade Commission (FTC), filed a civil antitrust lawsuit today in U.S. District Court for the District of Columbia, (...)

The US FTC fines the CEO of a Wall Street bank for repeatedly violating antitrust laws by illegally finalizing stock acquisitions (Capital One / Richard Fairbank)
US Federal Trade Commission (FTC) (Washington)
FTC Fines Capital One CEO Richard Fairbank for Repeatedly Violating Antitrust Laws* On multiple occasions, Wall Street banker failed to comply with federal antitrust laws when he illegally finalized stock acquisitions Today, the Federal Trade Commission announced that Richard Fairbank, CEO of (...)

The EU Commission opens a new front by investigating a possible violation of a standstill obligation under the EU Merger Regulation against a concentration that is below usual EU and national thresholds for review (Grail / Illumina)
Van Bael & Bellis (Brussels)
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Van Bael & Bellis (Brussels)
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Van Bael & Bellis (Brussels)
On 20 August 2021, the European Commission (the Commission) announced that it would investigate whether Illumina’s decision, made public on 18 August 2021, to acquire Grail pending the Commission’s review of that transaction under Regulation 139/2004 on the control of concentrations between (...)

The EU Commission starts an investigation for possible breach of a standstill obligation in a merger between two biotechnology and pharmaceutical companies (Grail / Illumina)
DG COMP (Brussels)
Mergers: Commission starts investigation for possible breach of the standstill obligation in Illumina / GRAIL transaction* The European Commission has decided to open an investigation to assess whether Illumina’s decision to complete its acquisition of GRAIL, while the Commission’s in-depth (...)

The Spanish Competition Authority imposes a fine of 300 000 euros on a company for failing to notify the purchase of a funeral home (Albia Gestión de Servicios)
Spanish Competition Authority (Madrid)
The CNMC imposes a fine of 300,000 euros on Albia Gestión de Servicios, S.L.U, a subsidiary of the Santa Lucía group. The company failed to comply with its obligation to notify the CNMC of the purchase of the funeral home Tanatorios Móstoles, S.L. prior to the operation in 2019. This is a serious (...)

The Austrian Competition Authority fines a big tech company for gun-jumping (Facebook / Giphy)
Austrian Competition Authority (Vienna)
Austrian Federal Competition Authority files application to fine Facebook for failing to notify GIPHY acquisition* Facebook cooperates with the AFCA in the course of an amicable conclusion of proceedings and accepts the fine of EUR 9.6 million requested by the AFCA. Background In the course (...)

The Israeli Competition Authority considers imposing a fine on a big tech company for gun-jumping in two takeovers of national companies (Facebook / RedKix / Service Friend)
Israel Competition Authority (Jerusalem)
The Director General for Competition is considering to impose monetary sanctions on Facebook a for a violation of the Economic Competition Law by consummating transactions in Israel without the Director General’s consent* The Director General for Competition notified Facebook today, May 11, (...)

The Indonesian Competition Authority imposes penalties on six companies for failing to notify their respective transactions in accordance with the mandatory post-closing notification requirements under the national merger control regime (Taiko Plantations / Aplikasi Karya Anak Bangsa / Saratoga Investama Sedaya / Dharma Satya Nusantara / Travel Circle / Orix)
Ashurst (Singapore)
Key takeaways The Indonesian merger regime requires notifiable transactions to be submitted 30 days post-closing. Failure to meet filing deadlines could result in fines of at least IDR 1 billion being imposed. There is no express statute of limitations pursuant to the merger regime, meaning the (...)

The EU Commission plans on reviewing a transaction even though EU and national turnover thresholds are not reached (Grail / Illumina)
Van Bael & Bellis (Brussels)
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Van Bael & Bellis (Brussels)
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Van Bael & Bellis (Brussels)
In a controversial move, the European Commission (the Commission) announced on 20 April 2021 that it would review the proposed acquisition of cancer detection test start-up Grail by genomics firm Illumina, both of the US. The Commission acted on a request of France, which was backed by three (...)

The Spanish Competition Authority initiates disciplinary proceedings against a funeral services provider for gun-jumping (Albia / Tanatoria Móstoles)
Spanish Competition Authority (Madrid)
The CNMC initiates disciplinary proceedings against Albia Gestión de Servicios, S.L.U., a subsidiary of the Santa Lucía group.* The company did not notify the CNMC of its purchase of the funeral services company Tanatoria Móstoles, S.L. before acquiring it in 2019. Companies that exceed certain (...)

The Spanish Competition Authority initiates disciplinary proceedings against a national funeral service for gun-jumping (Funespaña)
Spanish Competition Authority (Madrid)
The CNMC initiates disciplinary proceedings against Funespaña, S.A., asubsidiary of the Mapfre Group* The company did not inform the CNMC that it was purchasing the Alianza Canaria funeral home prior to doing so. The Anti-Trust Law states that companies must inform the CNMC of any merger before (...)

The Mexican Competition Authority clears merger between two national airline companies but imposes sanctions for not notifying their concentration in time (Interject / HBC)
Mexican Competition Authority (Mexico City)
COFECE sanctions Interjet and HBC for not notifying their concentration in time* The Commission imposed fines for a total amount of 955 thousand 680 Mexican pesos. The concentration was authorized after verifying that the operation does not affect competition and free market access. The Board (...)

The Czech Competition Authority imposes fine for gun-jumping on mobility company (Skyport / CSG)
Czech Competition Authority (Brno)
The Office imposed a fine for gun-jumping in the csg/skyport case* The Office for the Protection of Competition (“the Office”) imposed a fine of CZK 4,487,000 on Skyport, a. s. (formerly CSG a.s.) for unapproved implementation of concentration before its clearance by the Office. The decision has (...)

The EU Commission finds no gun-jumping in a merger in the water and waste management market and clarifies the scope of the public bid exemption to the standstill obligation (Veolia / Suez)
White & Case (Brussels)
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White & Case (Paris)
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White & Case (Dusseldorf)
In the midst of the Homeric battle between Veolia and its takeover target, Suez, the European Commission rejects Suez’s gun-jumping claim and provides further clarifications on the scope of the exemption to the standstill obligation in the case of two-step acquisitions encompassing a public bid. (...)

The Chinese State Administration for Market Regulation fines internet companies for failures to notify past transactions (Alibaba / China Literature / Shenzhen)
Herbert Smith Freehills (Hong Kong)
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Herbert Smith Freehills (Hong Kong)
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Herbert Smith Freehills (Shanghai)
On 14 December 2020, China’s State Administration for Market Regulation (SAMR) imposed fines against three internet based companies Alibaba Investment Limited, China Literature Limited and Shenzhen Hive-box Network Technology for respective failures to notify past transactions under the merger (...)

The Chinese State Administration for Market Regulation publishes new rules related to antitrust merger reviews
Jones Day (Shanghai)
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Jones Day (Beijing)
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Jones Day (Beijing)
In Short* The Development: China’s antitrust authority, the State Administration for Market Regulation ("SAMR"), published new rules related to antitrust merger reviews—the Interim Rules on the Review of Concentrations of Undertakings ("Interim Rules"). The Result: The most significant changes (...)

The Polish Competition Authority imposes its biggest fine for gun jumping in the energy sector (Gazprom / Nord stream 2)
Bird & Bird (Warsaw)
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Bird & Bird (Warsaw)
The President of the Polish Office of Competition and Consumer Protection ("UOKiK") has imposed the biggest fine for gun-jumping ever by a national competition authority. The UOKiK imposed a fine of over PLN 29 billion (approx. EUR 6.5 billion) on Gazprom, and a total of over PLN 294 million (...)

The Serbian Competition Authority opens proceedings against a pharmaceutical company for a non-notified merger implemented without authorization (Apoteka Janković)
Serbian Commission for Protection of Competition (Belgrade)
Commission Institutes Proceedings Against Apoteka Janković* The Commission for Protection of Competition instituted ex officio proceedings against company Zdravstvena ustanova Apoteka Janković to investigate a merger implemented before obtaining clearance under the Law on Protection of (...)

The Polish Competition Authority imposes fines for failure to report concentration and for failure to provide information during a market study on two companies in the gas market (AmeriGas / Linde Gaz)
Polish Competition Authority (Warsaw)
Concentration control - fines imposed by the President of UOKiK* Fines for concentration without the consent of the President of the Office and for failure to provide information during the proceedings - these are the latest decisions of the President of UOKiK Tomasz Chróstny regarding (...)

The Hungarian Competition Authority imposes a fine for gun jumping on three venture capital funds (Hiventures / Talentuno Technologies)
Van Bael & Bellis (Brussels)
On 22 September 2020, the Hungarian Competition Authority (“GVH”) imposed fines totalling HUF 15.4m (approximately € 42,000) on three venture capital funds, two of which are controlled by the state-owned venture capital firm Hiventures Zrt, for failing to notify in a timely manner their (...)

The Portuguese Competition Authority issues a statement of objections against two real estate investment companies for failure to notify a merger (Fidelidade / Saudeinveste)
Portuguese Competition Authority (Lisbon)
AdC issues statement of objection against Fidelidade - Sociedade Gestora de Organismos de Investimento Imobiliário, S.A. (Fidelidade SGOII) for failure to notify a merger* The AdC (Autoridade da Concorrência – Portuguese Competition Authority) sent a statement of objections to Fidelidade SGOII (...)

The Serbian Competition Authority opens an investigation against a chain of pharmacies for gun jumping (Apoteke Janković / Zrenjanin)
BDK (Belgrade)
The Serbian Commission for Protection of Competition launched its fourth investigation in September 2020. The latest one will look into whether Zdravstvena ustanova Apoteka Janković, a privately owned chain of pharmacies (“ZUA Janković“), breached merger control rules by not notifying the (...)

The Italian Competition Authority fines three companies active in the energy sector for gun jumping (Acea / Mediterranea Energia / Alma)
Ashurst (Brussels)
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Ashurst (Brussels)
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Ashurst (Milan)
On 15 September 2020 the Italian Competition Authority ("AGCM") fined three companies active in the production and distribution of energy for failure to notify a concentration before its closing, rejecting the parties’ claim that the concentration was interdependent on a second transaction that (...)

The Italian Competition Authority imposes gun-jumping fine on gas distributors (Acea / Mediterranea Energia / Alma / Pescara Distribuzione Gas)
Van Bael & Bellis (Brussels)
On 15 September 2020, the Italian Competition Authority (“ICA”) imposed a € 153,000 fine on three companies, Acea, Mediterranea Energia and Alma C.I.S., for failing to notify a transaction before closing. The three acquiring companies had purchased one target, Pescara Distribuzione Gas, in March (...)

The Italian Competition Authority fines three energy companies for late merger control notification (Acea / Mediterranea Energia / Alma)
Giannino SI (Monserrato)
In Pescara Distribuzione Gas the Italian Competition Authority (ICA) has found Acea, Mediterranea Energia (ME) and Alma CIS (Alma) guilty of gun-jumping for late merger control notification. They violated Article 16(1) of the Law no. 287/1990 whereby mergers exceeding the statutory dimensional (...)

The Spanish Competition Authority investigates unauthorized merger operations and antitrust practices in the funeral insurance and funeral services sectors
Spanish Competition Authority (Madrid)
The CNMC investigates the possible execution of unauthorised mergers, as well as potential antitrust practices involving the funeral insurance and funeral services markets.* From 8 to 10 September, dawn raids were carried out at the headquarters of various companies active in the aboved (...)

The Czech Supreme Administrative Court rejects moderation of fine imposed for gun-jumping in the energy sector (Armex Oil)
Skils (Prague)
On 14 September 2020, the Supreme Administrative Court (SAC) granted a cassation appeal lodged by the Czech Office for Protection of Competition (Office) against the previous judgment of the Regional Court in Brno of 5 June 2019 (Ref.No. 29 Af 96/2016) relating to the proceedings conducted by (...)

The Czech Supreme Court decides on clearly disproportionate fines for unauthorized acquisition (Armex Oil)
Bird & Bird (Prague)
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Bird & Bird (Prague)
Supreme Administrative Court decides on clearly disproportionate fines for unauthorized acquisition. In 2013, the company ARMEX Oil acquired an ownership interest in the company TRANSCARGO without notifying the Competition Protection Office ("Office") and awaiting its approval. Two years (...)

The Norwegian Competition Authority imposes a fine for not disclosing acquisition of grocery store premises (Norgesgruppen)
Norwegian Competition Authority
Norgesgruppen is fined 20 million for not disclosing acquisition of grocery store premises* The Norwegian Competition Authority has today imposed a fine of 20 million NOK on Norgesgruppen for the infringement of disclosure requirements related to an acquisition of grocery store premises. On (...)

The New Zealand Competition Authority opens investigation into the completed acquisition of North Island animal rendering assets (Wallace / Glenninburg)
New Zealand Commerce Commission (Wellington)
Investigation opened into acquisition of Wallace’s North Island rendering assets* The Commerce Commission has opened an investigation into the acquisition of the North Island animal rendering assets of Wallace Group GP Limited (Wallace) by interests associated with Glenninburg Holdings Limited (...)

The Mexican Competition Authority fines 2 merger cases for failure to notify a concentration (Santander / USB Americas) (KKR Rainbow Aggregator / Coty)
Mexican Competition Authority (Mexico City)
COFECE imposed fines in two cases for failure to notify a concentration: Santander and USB Americas; and KKR Rainbow Aggregator and Coty* COFECE fined diverse subsidiaries of Santander, Elavon and USB Americas a total of 2 million 172 thousand Mexican pesos because they modified the (...)

The UK Competition Authority fines a sports manufacturer and its parent company for breach of merger-freeze order with a footwear retailer (JD Sports / Footasylum)
Van Bael & Bellis (Brussels)
On 5 August 2020, the UK’s Competition and Markets Authority (the “CMA”) fined JD Sports and its parent company Pentland Group £300,000 for failing to comply with an initial enforcement order (“IEO”) imposed with regard to JD Sports’ completed merger with footwear retailer Footasylum. The CMA found JD (...)

The Austrian Cartel Court clarifies the calculation method for domestic turnover thresholds and imposes a €100,000 fine on a car parts manufacturer for failing to notify its acquisition (Castanea Rubra / Neue Halberg)
Van Bael & Bellis (Brussels)
On 4 August 2020, the Austrian Cartel Court published a decision dated 13 February imposing a € 100,000 fine on Castanea Rubra Assets GmbH (“Castanea Rubra”) for failing to notify its acquisition of 94% of shares in Neue Halberg Guss GmbH (“Neue Halberg”) in 2018. This failure to notify violated the (...)

The French Competition Authority updates its merger control guidelines
Latham & Watkins (Brussels)
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Latham & Watkins (Paris)
New French Competition Authority Merger Control Guidelines* On 23 July 2020, the French Competition Authority (FCA or Authority) published new merger control guidelines, which replace the previous guidelines dated 4 July 2013. In the new guidelines, the Authority clarifies and completes (i) (...)

The Mexican Competition Authority imposes fine for failure to notify a concentration in the energy sector and authorises the transaction (BAS Corporation / ESZ KI / ESZ KII / EXI Solar)
Mexican Competition Authority (Mexico City)
COFECE sanctions BAS Projects Corporation, ESZ KI, ESZ KII, and EXI Solar for failing to notify a concentration and authorizes the transaction* Imposes fines totaling to 977 thousand Mexican pesos. Authorizes the concentration considering that the operation does not pose risks to the process (...)

The Mexican Competition Authority fines two merging parties for gun-jumping but approves merger due to no competition concerns (SoftBank / WeWork)
Mexican Competition Authority (Mexico City)
COFECE sanctions SoftBank and WeWork for failing to notify a concentration and authorizes the transaction* Fines amounting to 3 million 379 thousand 600 Mexican pesos were imposed. The concentration is authorized as it is considered that it does not pose risks to competition and free market (...)

The EU Commission and National Competition Authorities implement remote working for the vast majority of their workforces, presenting challenges in merger control during the COVID-19 outbreak Free
Orrick, Herrington & Sutcliffe (London)
Like most organisations, the European Commission (the "Commission") and national competition authorities ("NCAs") have implemented remote working for the vast majority of their workforces. This presents unique and unprecedented challenges in merger control, one of the regulatory areas with the (...)

The Austrian Competition Authority announces that retrospective notification of an acquisition of shares of a car parts manufacturer is a violation of the notification requirements and subject to fines (Castanea Rubra)
Van Bael & Bellis (Brussels)
On 27 March 2020, the Austrian Federal Competition Authority (“FCA”) announced that, pursuant to its request, the Cartel Court had imposed a fine of € 100,000 on Castanea Rubra Assets GmbH. Castanea Rubra Assets GmbH had acquired 94% of the shares of German-based car parts manufacturer Neue (...)

The Portuguese Competition Authority fines a hospital for gun-jumping but accepts payment of the fine in multiple installments to avoid negatively affecting the hospital’s operations during the COVID-19 pandemic (Hospital Particular do Algarve) Free
Portuguese Competition Authority (Lisbon)
AdC fines Hospital Particular do Algarve for gun-jumping* The AdC fined Hospital Particular do Algarve, SA (HPA) in the total amount of 155,000 euros for acquiring sole control of Hospital de S. Gonçalo de Lagos S.A. (HSGL) without prior notification of the acquisition and, consequently, (...)

The Portuguese Competition Authority allows payment of a gun-jumping fine in installments due to the COVID-19 outbreak (Hospital Particular do Algarve) Free
Van Bael & Bellis (Brussels)
In September 2019, the Portuguese Competition Authority (“AdC”) imposed a fine of € 155,000 on Hospital Particular do Algarve (“HPA”) for gun-jumping, finding that HPA had acquired sole control of Hospital de São Gonçalo de Lagos without the AdC’s prior approval. The AdC has recently announced that it (...)

The EU Court of Justice upholds the EU Commission’s fines to a fish farmer and processor company for infringing merger control rules (Marine Harvest)
Hogan Lovells (London)
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Hogan Lovells (London)
Norwegian salmon farmer Marine Harvest has been unsuccessful in its appeal to the Court of Justice of the European Union (CJEU) regarding substantial and separate fines imposed on it by the European Commission for both failing to notify a merger and for ’jumping the gun’ in implementing the (...)

The EU Court of Justice dismisses the appeal made by a Norwegian seafood company against the Commission’s decision in fining the company for putting into effect its acquisition of a salmon producer before getting the approval (Marine Harvest)
Ashurst (London)
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Ashurst (Brussels)
On 4 March 2020, the European Court of Justice ("ECJ") dismissed the appeal made by Norwegian seafood company Marine Harvest against a 2017 ruling of the General Court ("GC") confirming the European Commission ("Commission") 2014 decision fining Norwegian seafood company Marine Harvest for (...)

The EU Court of Justice upholds a gun jumping fine on a sea food company (Marine harvest)
Callol, Coca & Asociados (Madrid)
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Callol, Coca & Asociados (Madrid)
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Callol, Coca & Asociados (Madrid)
On 14 December 2012, Marine Harvest entered into a share purchase agreement under which it acquired a 48.5% stake in one of its competitors, Morpol. The transaction, which was not notified to the Commission, was completed on 18 December 2012. In 2013, Marine Harvest made a mandatory public (...)

The EU Court of Justice upholds the Commission’s decision and fines a seafood company for gun-jumping (Marine harvest)
Zepos & Yannopoulos (Athens)
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Zepos & Yannopoulos (Athens)
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Zepos & Yannopoulos (Athens)
On 4 March 2020 the Court of Justice of the EU delivered its judgement with which it dismissed Marine Harvest’s appeal against the Commission’s decision imposing two separate fines (EUR10 million each) for failure to notify a transaction under Article 4(1) EUMR and for implementing that (...)

The EU Court of Justice dismisses the appeal by a seafood company against the Commission’s fine for failure to notify a transaction (Marine Harvest)
Sidley Austin (Brussels)
CJEU Confirms Double Trouble for Gun Jumpers* On 4 March 2020, the European Court of Justice (“CJEU”) rendered its judgment in the Marine Harvest case. The CJEU dismissed Marine Harvest’s appeal against a European Commission (“Commission”) decision in which the Commission imposed two separate fines (...)

The Lithuanian Supreme Administrative Court upholds the Competition Authority’s €947,700 gun-jumping fine imposed on one of Lithuania’s largest agricultural processing companies (Kauno Grūdai)
Van Bael & Bellis (Brussels)
On 17 January 2020, the Lithuanian Competition Council, Konkurencijos taryba, published a decision of the Lithuanian Supreme Administrative Court upholding a € 947,700 gun-jumping fine imposed on Kauno Grūdai, one of Lithuania’s largest agricultural processing companies. Kauno Grūdai acquired 51% (...)

The Indian Competition Authority invites public comments on a proposed amendment to the Combination Regulations relating to the acquisition of shares pursuant to a public bid or a stock exchange
Shardul Amarchand Mangaldas (New Delhi)
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Shardul Amarchand Mangaldas (New Delhi)
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Shardul Amarchand Mangaldas (Mumbai)
The CCI invited public comments on a proposed amendment to the Combination Regulations relating to the acquisition of shares pursuant to a public bid or on a stock exchange. At present, such an acquisition cannot, where it qualifies as a notifiable transaction, be completed until CCI clearance (...)

The Brazilian Competition Authority’s Tribunal discusses the possibility of increasing the legal limits for fines in gun jumping cases (IBM / Red Hat)
Vinicius Marques de Carvalho Advogados (VMCA) (Sao Paulo)
IBM Red Hat case triggers discussion on gun jumping fine* CADE’s Tribunal debates changing the limits for fines, which would be currently outdated for high-value transactions. In the context of an Administrative Proceeding to Investigate a Merger (APAC, in its Portuguese acronym), CADE’s (...)

The Spanish Competition Authority imposes a fine on a fruit-wholesaler for gun-jumping (Nufri)
Gómez-Acebo & Pombo (Brussels)
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Gómez-Acebo & Pombo (Brussels)
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Gómez-Acebo & Pombo (Brussels)
NUFRI, Sociedad Agraria de Transformación, has been fined by the CNMC for implementing a merger prior to its notification. In the beginning of the year, NUFRI acquired fruit-based products’ manufacturer Grupo Indulleida. The transaction was only pre-notified on 15 April 2019 and, subsequently, (...)

The Polish Competition Authority fines €40 million a company in the energy sector for not providing requested information during an investigation (Engie)
Bird & Bird (Warsaw)
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Bird & Bird (Warsaw)
On 7 November 2019, the Polish Office of Competition and Consumer Protection ("UOKiK") imposed a PLN 172 million (EUR 40 million) fine on Engie Energy Management Holding Switzerland AG ("Company") for not providing requested information. The fine was imposed due to the lack of response to (...)

The Austrian Competition Authority fines two companies for gun-jumping in the motorcycle and sports car manufacturing market (KTM / Kiska )
Austrian Competition Authority (Vienna)
KTM AG and Kiska GmbH fined for illegal merger* The Cartel Court, at the Austrian Federal Competition Authority’s request, has imposed a fine of € 60,000 on KTM AG and Kiska GmbH. The first respondent had held a 26% stake in the second respondent during the period from 7 October 2015 to 29 (...)

The Austrian Cartel Court fines a company for gun-jumping in the investment market (Eurazeo)
Austrian Competition Authority (Vienna)
Eurazeo SE fined for illegal merger* The Cartel Court, at the Austrian Federal Competition Authority’s request, has imposed a fine of € 30,000 on Eurazeo SE. The respondent had indirectly acquired a 58.8% stake in 2R Holding SAS and thus been in a position of sole control between 17 July 2018 (...)

The EU Advocate General Tanchev issues his opinion and recommends that the EU Court of Justice partially annul a gun-jumping fine (Marine Harvest)
Dentons (Brussels)
GUN JUMPING: AG TANCHEV TELLS EUROPEAN COURT OF JUSTICE THAT MARINE HARVEST SHOULD RECEIVE ONE FINE, NOT TWO* There has been an important milestone in the search for more legal certainty in gun-jumping cases: On September 26, 2019, Advocate General (AG) Tanchev issued his opinion in the Marine (...)

The Ukrainian Competition Authority issues guidelines clarifying the notification of joint ventures
Redcliffe Partners (Kyiv)
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Redcliffe Partners (Kyiv)
ANTIMONOPOLY COMMITTEE OF UKRAINE ISSUED NEW GUIDELINES CLARIFYING THE NOTIFICATION OF JOINT VENTURES: ANTIMONOPOLY COMMITTEE OF UKRAIN / UKRAINIAN COMPETITION AUTHORITY / JOINT VENTURES / MINORITY ACQUISITIONS* On 26 September 2019, the Antimonopoly Committee of Ukraine (the ’AMC’) issued new (...)

The Portuguese Competition Authority sends a statement of objection accusing a company of gun-jumping (Capital / SCA / SICAR)
Portuguese Competition Authority (Lisbon)
AdC accuses HCapital, SCA - SICAR of gun-jumping* The AdC (Autoridade da Concorrência – Portuguese Competition Authority) sent a statement of objections to HCapital, SCA – SICAR for acquiring sole control of Solzaima without prior notification of the transaction and, consequently, without (...)

The Spanish Competition Authority initiates proceedings against an undertaking for having closed an acquisition before gaining merger clearance (Nufri / Idulleida)
Callol, Coca & Asociados (Madrid)
On 6 September 2019, the CNMC has initiated proceedings against NUFRI for having closed the acquisition of Grupo IDULLEIDA before gaining merger clearance. On 11 July 2019, the CNMC cleared in first phase the transaction which had been notified on 21 June 2019. However, the CNMC has initiated (...)

The Spanish Competition Authority investigates potential gun jumping in a merger in the fruit and vegetables wholesale sector (Nufri / Idulleida)
Gómez-Acebo & Pombo (Brussels)
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Gómez-Acebo & Pombo (Brussels)
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Gómez-Acebo & Pombo (Brussels)
In September 2019, the CNMC announced that it had opened disciplinary proceedings against NUFRI, Sociedad Agraria de Transformación A.P.A, an entity active in the wholesale of fruits and vegetables. In particular, the CNMC is concerned that NUFRI could have violated the standstill obligation (...)

The EU Commission imposes a fine of €28 million for “gun-jumping” on a Japanese manufacturer of imaging and optical products (Canon / Toshiba)
DG COMP (Brussels)
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Shearman & Sterling (London)
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Shearman & Sterling (London)
This article has been nominated for the 2020 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. On 27 June 2019 the European Commission imposed a fine of €28 million on the Japanese imaging and optical products manufacturer Canon for “gun-jumping” by using a (...)

The EU Commission imposes a fine of €28 million for gun-jumping in the market of imaging and optical products (Canon / Toshiba)
Bird & Bird (Brussels)
On 27 June 2019, the European Commission ("EC") fined Canon €28 million for gun-jumping in its acquisition of Toshiba Medical Systems Corporation ("TMSC"), namely implementing the transaction prior to notification and approval under EU merger control (see the EC press release here). Canon had (...)

The EU Commission fines an imaging and optical products manufacturer €28 million for gun jumping (Canon / Toshiba Medical Systems)
LK Shields (Brussels)
European Commission fines Canon EUR 28 million for Gun Jumping* Canon, the Japanese imaging and optical products manufacturer, has been fined €28 million (US$ 31.8 million) for implementing its acquisition of Toshiba Medical Systems Corporation (TMSC), before it was approved by the Commission, (...)

The EU Commission fines a company €28 million for partial gun-jumping in the imaging and optical products market (Canon / Toshiba Medical Systems)
Gómez-Acebo & Pombo (Brussels)
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Gómez-Acebo & Pombo (Brussels)
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Gómez-Acebo & Pombo (Brussels)
The European Commission has fined Canon, the Japan-based imaging and optical products company, €28 million for its failure to fully respect notification and standstill obligations in the acquisition of Toshiba Medical Systems Corporation (“TMSC”). EU merger rules require that merging companies (...)

The EU Commission follows other countries’ antitrust authorities and assesses penalties against optical products company for structuring a transaction to avoid premerger notification filings and waiting period requirements (Canon / Toshiba)
Jones Day (Brussels)
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Jones Day (Washington)
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Jones Day (Brussels)
This article has been nominated for the 2020 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. Antitrust authorities in the United States and European Union have assessed penalties and fines against Canon, and in the United States, Toshiba, for structuring (...)

The EU Commission fines a Japanese imaging manufacturer for gun jumping by way of a two-step warehousing structure (Canon / Toshiba)
Zepos & Yannopoulos (Athens)
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Zepos & Yannopoulos (Athens)
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Zepos & Yannopoulos (Athens)
On 27 June 2019, the European Commission fined Canon EUR28 million for the pre-clearance implementation of its acquisition of Toshiba Medical Systems (TMSC) through the use of a two-step “warehousing” deal structure. In step one, Toshiba transferred 95% of the shares in TMSC in a SPV indirectly (...)

The EU Commission fines 2-step merger for gun jumping because the full value of the majority stake was paid in the first step with minority rights thereby making the option certain to be exercised (Canon / Toshiba)
Linklaters (London)
This article has been nominated for the 2020 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. The European Commission has published the full text of its decision to impose a €28 million fine (actually two €14 million fines) on Canon for breaching the (...)

The Danish Competition Authority fines the national oil and petrol service station company for failure to notify an acquisition as required under the merger control rules (Circle K)
Bird & Bird (Copenhagen)
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Bird & Bird (Copenhagen)
On 26 June 2019, the Danish Competition and Consumer Authority ("CCA") announced that the Danish oil and petrol service station company Circle K Denmark A/S accepted to pay a fine of DKK 6.000.000 (EUR 800.000) for failure to notify an acquisition as required under the merger control rules in (...)

The Austrian Cartel Court fines a company for gun-jumping in the building materials industry (WIG Wietersdorfer)
Austrian Competition Authority (Vienna)
Fine imposed for illegal merger in the building materials industry* On 14 June 2019 the Cartel Court, at the Federal Cartel Prosecutor’s request, imposed a fine of € 70,000 on WIG Wietersdorfer Holding GmbH. WIG Wietersdorfer Holding GmbH had acquired a 50% stake in the target company Calcit, (...)

The US District Court for the District Court of Columbia imposes a $2.5 million civil penalty against a manufacturer of imaging equipment for violating the pre-merger notification and waiting period requirements of the HSR Act (Canon / Toshiba)
Willkie Farr & Gallagher (New York)
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Willkie Farr & Gallagher (New York)
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Willkie Farr & Gallagher (New York)
This article has been nominated for the 2020 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. Earlier this summer, the U.S. Department of Justice (the “DOJ”) filed a proposed final judgment against Canon Inc. (“Canon”) and Toshiba Corp. (“Toshiba”), imposing a (...)

The Irish Competition Authority uses criminal sanctions against companies for gun jumping (Armalou / Airfield)
Matheson (Dublin)
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Matheson (Dublin)
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Matheson (Dublin)
Summary In this case update, we discuss a 2019 criminal enforcement case in Ireland brought by the Competition and Consumer Protection Commission (the “CCPC”) in conjunction with the Director of Public Prosecutions (the “DPP”), in relation to breaches of procedural merger control law under the (...)

The Ukrainian Competition Authority imposes a fine of EUR 1.8 million for ’gun jumping’ in a merger in the heavy industry sector, and does not clear the transaction due to economic sanctions on the seller’s beneficiary (TAS / Dniprometyz)
Redcliffe Partners (Kyiv)
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Redcliffe Partners (Kyiv)
The facts of the case On 8 November 2017, Devisal Limited, a Cyprus subsidiary of the financial/industrial group TAS (the "TAS Group"), filed a merger filing requesting the Antimonopoly Committee of Ukraine (the "AMC") to approve the acquisition of a controlling stake in the Private Joint (...)

The Irish District Court in Dublin imposes a small charitable donation as punishment on a motor company which pled guilty in the country’s first criminal prosecution of gun jumping (Armalou Holdings)
McCann FitzGerald (Brussels)
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McCann FitzGerald (Dublin)
A small charitable donation for gun-jumping* After an 18 month investigation involving officials from both the Competition and Consumer Protection Commission (“CCPC”) and Ireland’s Director of Public Prosecution, and a first-ever criminal prosecution, a company that gun-jumped Irish merger (...)

The Australian Federal Court orders an undertaking to pay $1.05M for cartel conduct relating to its asset sale agreement (Cryosite / ACCC)
Kirkland & Ellis (London)
GUN-JUMPING IN VOLUNTARY MERGER REGIMES: THE RISKS KEEPING GLOBAL TRANSACTIONS IN SUSPENSE* Much has been written of the heightened risk of gun-jumping enforcement by competition regulators overseeing mandatory suspensory merger regimes. This article will examine why merger parties and their (...)

The UK Competition Appeal Tribunal upholds the Competition Authority’s first infringement decision for breach of an interim order in a merger investigation (Electro Rent)
Herbert Smith Freehills (London)
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Herbert Smith Freehills (London)
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Herbert Smith Freehills (Brussels)
On 11 February 2019 the Competition Appeal Tribunal (CAT) upheld the CMA’s first infringement decision for breach of an interim order imposed on a completed merger under investigation. Electro Rent had served a break notice on the lease of its UK premises without first seeking the CMA’s consent (...)

The Romanian Competition Authority fines a company operating in the retail market of IT products, home appliances and marketing via e-commerce platforms for gun jumping (Corsar Online)
Romanian Competition Council (Bucharest)
The Competition Council sanctioned Corsar Online Srl with fines of 1.6 million lei * The Competition Council sanctioned the company Corsar Online SRL with fines of approximately 1.6 million lei for the implementation of a merger before being authorized by the Competition Authority. In the (...)

The Hungarian Competition Authority fines a company for gun-jumping in the market of technical building services (ETS / TGS Engineering)
Hungarian Competition Authority (Budapest)
GVH once again imposes a fine for the implementation of a concentration prior to authorisation* The Hungarian Competition Authority (Gazdasági Versenyhivatal, hereinafter GVH) imposed a fine for the seventh time for the implementation of a concentration prior to authorisation by the GVH. The (...)

The Hungarian Competition Authority imposes a fine for gun jumping in the market of technical building services (ETS / TGS)
Bird & Bird (Budapest)
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Bird & Bird (Budapest)
The Hungarian Competition Authority (the “GVH”) further crystallized its assessment of gun jumping offenses in its decision imposing a fine on ETS Efficient Technical Solutions GmbH (“ETS”) for its failure to notify the acquisition of TGS Engineering Kft. (“TGS”) prior to its implementation (see case (...)

The OECD holds a roundtable on gun jumping and suspensory effects of merger notifications
OECD - Competition Division (Paris)
When merging parties fail to notify a merger to the competition authority, implement all or parts of the merger during mandatory waiting periods or co-ordinate their competitive behaviour before closing, this is commonly called “gun jumping”. The topic has received a lot of attention recently, (...)

The EU Commission submits a note on the suspensory effects of merger notifications and gun-jumping as part of OECD roundtable discussions
Kirkland & Ellis (London)
The EU OECD paper on gun-jumping* Gun-jumping is a “hot topic” and increasingly on the radar of competition authorities in Europe and across the globe. As part of the OECD roundtable discussions, the European Union (and a number of other countries) recently submitted a note on the suspensory (...)

The Latvian Competition Authority fines a fuel retailer that submitted notification ten months after implementing a merger transaction for gun-jumping (Petrol Property / Vaizga)
Latvian Competition Council (Riga)
Latvian competition authority fines Lithuanian company UAB Vaizga for unnotified merger* On April, 2018, the Competition Council of Latvia (the CC) cleared the proposed acquisition of Latvian company SIA Petrol Property by UAB Vaizga. As the Lithuanian UAB Vaizga failed to submit merger (...)

The Brazilian Competition Authority requests the submission of a below-threshold transaction between two distributors of pharmaceutical supplies (All Chemistry / SM Empreendimentos)
Caminati Bueno Advogados (São Paulo)
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Caminati Bueno Advogados (São Paulo)
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Caminati Bueno Advogados (São Paulo)
1. INTRODUCTION During the trial session of September 5, 2018, the Tribunal of the Brazilian Competition Authority (“CADE”) requested the submission of a transaction that did not trigger the mandatory notification thresholds.- In short, the transaction concerns the acquisition of All Chemistry (...)

The EU Court of Justice provides guidance on the merger notification obligation in EU regulation (EY / KPMG)
McDermott Will & Emery (Brussels)
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McDermott Will & Emery (Brussels)
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McDermott Will & Emery (Brussels)
European Court of Justice Provides Guidance on Scope of the Standstill Obligation Enshrined in the EU Merger Regulation* Pursuant to the EU merger control rules, a transaction that falls within the purview of the EU Merger Regulation (EUMR) must be notified to the European Commission (...)

The EU Court of Justice provides guidance on the standstill obligation which prevents parties from implementing their transaction before the EU Commission issues a clearance decision (EY / KPMG)
Herbert Smith Freehills (London)
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Herbert Smith Freehills (Brussels)
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Herbert Smith Freehills (London)
For the first time since the EU Merger Regulation (EUMR) came into force the Court of Justice of the EU (CJEU) has provided guidance on the scope the standstill obligation (Article 7(1) EUMR) which prevents parties implementing their transaction before the EU Commission issues a clearance (...)

The EU Court of Justice clarifies that the suspension obligation only applies to actions of the merging parties which contribute to the change in control of the target undertaking (EY / KPMG)
Freshfields Bruckhaus Deringer (London)
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Freshfields Bruckhaus Deringer (Brussels)
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Freshfields Bruckhaus Deringer (Brussels)
On 31 May 2018, the EU’s Court of Justice (ECJ) gave judgment in the EY / KPMG case on whether the EU suspension obligation was violated when KPMG’s Danish unit terminated a material contract prior to receiving competition clearance for its merger with Ernst & Young (EY). The ECJ concluded (...)

The EU Court of Justice puts an end to the extensive interpretation by some competition authorities of the concept of gun jumping (EY / KPMG)
Nest Avocats (Paris)
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Kramer Levin Naftalis & Frankel (Paris)
In its judgment of 31 May 2018 (Case C-633/16, Ernst & Young), the European Court of Justice (ECJ) ruled that the termination of a cooperation agreement in connection with a M&A transaction prior to its clearing under merger control rules does not constitute a gun jumping practice. (...)

The EU Court of Justice issues important ruling on gun jumping and on the scope of the standstill obligation contained in the EU Merger Regulation (EY / KPMG)
Van Bael & Bellis (Brussels)
On 31 May 2018, the Court of Justice of the European Union (the “ECJ”) issued an important judgment on the scope of the standstill obligation contained in Article 7(1) of the EU Merger Regulation (the “EUMR”), which prohibits companies from implementing a notifiable concentration prior to clearance (...)

The EU Court of Justice clarifies the scope of gun jumping prohibition by excluding cooperation agreements which don’t contribute to the change in control of the target business (EY / KPMG)
Bryan Cave Leighton Paisner (Brussels)
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Rosenblatt (London)
EUROPEAN COURT OF JUSTICE CLARIFIES SCOPE OF GUN JUMPING PROHIBITION* Over the last year, we have noted an increased crackdown by competition agencies on so-called “gun jumping” – that is, the implementation of a merger before mandatory merger clearances are received. On 31 May 2018, the European (...)

The EU Commission publishes its decision in a gun-jumping case (Altice / PT Portugal)
Simmons & Simmons (London)
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Simmons & Simmons (London)
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Crowell & Moring (London)
On 24 April 2018, the European Commission (Commission) fined Altice NV (Altice) €124.5m for breaching both Article 4(1) and 7(1) of Council Regulation (EC) No 139/2004 (the EU Merger Regulation or EUMR). Article 4(1) EUMR contains the “notification requirement” under which relevant transactions (...)

The EU Commission fines €124.5 million a multinational cable and telecoms company for having implemented its acquisition prior to notifying the transaction and receiving clearance (Altice / PT Portugal)
Herbert Smith Freehills (London)
The EU Commission has imposed a fine of €124.5 million on Altice, a multinational cable and telecoms company, for having implemented its acquisition of Portuguese telecoms operator PT Portugal prior to notifying the transaction and receiving clearance under the EU Merger Regulation (EUMR), (...)

The EU Commission imposes record €125M fine on a multinational cable and telecommunications company for gun jumping (Altice / PT Portugal)
Van Bael & Bellis (Brussels)
On 24 April 2018, the European Commission fined Altice, a Dutch-based telecom operator, € 125 million for procedural infringements of the EU Merger Regulation. By way of background, on 9 December 2014, Altice entered into an agreement to acquire sole control of PT Portugal. Altice notified the (...)

The EU Commission imposes a fine of €124.5 million for gun jumping to a multinational cable and telecommunications company (Altice / PT Portugal)
Rosenblatt (London)
COMMISSION IMPOSES UPON DUTCH CABLE & TELCO COMPANY ALTICE A RECORD FINE OF €125 MILLION FOR GUN JUMPING UNDER THE EU MERGER REGULATION* On 24th April 2018 the European Commission announced that it had imposed a fine of €124.5 million on Altice, the multinational cable and telecommunications (...)

The EU Commission fines a multinational cable and telecommunications company €124.5 million for breaching EU Merger Regulation by implementing its acquisition before the approval by the Commission (Altice / PT Portugal)
Freshfields Bruckhaus Deringer (London)
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Freshfields Bruckhaus Deringer (Brussels)
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Freshfields Bruckhaus Deringer (Brussels)
The European Commission (Commission) announced today its decision to fine multinational cable and telecoms company Altice €124.5 million for breaching the EU Merger Regulation by implementing its 2015 acquisition of a telecommunications operator, PT Portugal, before notification to, or approval (...)

The EU Commission imposes a record fine of 124.5M euros for gun-jumping in relation to a merger in the telecommunications sector (Altice / PT Portugal)
McDermott Will & Emery (Brussels)
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McDermott Will & Emery (Paris)
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Norton Rose Fulbright (Brussels)
When drawing up an acquisition agreement in a transaction that will be notifiable to the EC for clearance under the EUMR, the acquirer must ensure that any veto or similar rights that it has prior to implementation of the transaction are strictly limited to that which is necessary to preserve (...)

The EU Commission fines for gun jumping a telecommunications company (Altice / PT Portugal)
Freshfields Bruckhaus Deringer (Brussels)
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Freshfields Bruckhaus Deringer (London)
European Commission decision provides guidance on how merging parties can mitigate the risk of ’gun jumping’ Following on from our update on this topic in April, the European Commission (Commission) has published the non-confidential version of its decision to fine multinational cable and (...)

The EU Commission fines €125 million a multinational cable and telecommunications company for gun jumping (Altice / PT Portugal)
Callol, Coca & Asociados (Madrid)
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Callol, Coca & Asociados (Madrid)
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Callol, Coca & Asociados (Madrid)
On 24 April 2018, the European Commission (EC) fined Altice €124.5 million (the highest fine imposed in Europe for gun-jumping) for the acquisition of PT Portugal without having notified the operation to the EC and obtained the mandatory clearance. In February 2015, Altice notified to the EC (...)

The EU Commission fines €124.5 million a multinational cable and telecommunications company for gun-jumping (Altice / PT Portugal)
Freshfields Bruckhaus Deringer (London)
With complex merger reviews now taking 6-15 months, buyers can face lengthy periods between signing and closing, when they bear commercial risk but the target is required to operate entirely independently. While most competition agencies allow buyers to take reasonable and necessary steps to (...)

The Indian Supreme Court applies a strict interpretation to the requirement of notifying the Competition Authority prior to the implementation of a merger (Thomas Cook / Sterling)
Economic Laws Practice (Mumbai)
On 17 April 2018, the Supreme Court of India (“Supreme Court”) handed down a decision according strict interpretation to the requirement of notifying the Competition Commission of India (‘CCI’) prior to consummation of a combination under the Competition Act, 2002 (“Act”). The Supreme Court set (...)

The US FTC publishes a blog post reminding merging parties to avoid creating antitrust liability through the exchange of competitively sensitive information during merger negotiations
US Department of Justice (Washington)
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Jones Day (Dallas)
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Jones Day (Washington)
In Short The Situation: The Federal Trade Commission ("FTC") recently published a blog post reminding merging parties to avoid creating antitrust liability through the exchange of competitively sensitive information during merger negotiations and due diligence. The Risk: Information-sharing (...)

The EU Advocate General Wahl excludes gun-jumping in a case involving a takeover in the auditing sector (EY / KPMG)
Gómez-Acebo & Pombo (Brussels)
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Gómez-Acebo & Pombo (Brussels)
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Gómez-Acebo & Pombo (Brussels)
Gun-jumping rules prevent companies, subject to the obligation to notify, from completing a merger or acquisition, in whole or in part, prior to obtaining the approval from the relevant Competition Authorities. In May 2014, Ernst & Young (EY) acquisition of KPMG’s Danish unit was approved (...)

The Romanian Competition Authority fines two companies for implementing a merger before authorization (CRH Ciment / Comnord)
Romanian Competition Council (Bucharest)
The Competition Council has sanctioned 2 companies for implementing a concentration* The Competition Council applied fines of 3,056,314 lei (approx. € 655,904) to the companies CRH Ciment (România) SA and Comnord SA for the implementation of an economic concentration before its authorization by (...)

Gun jumping in Europe: an overview of EU and national case law
Van Bael & Bellis (Brussels)
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Van Bael & Bellis (Brussels)
In the last few years, the European Commission and national competition authorities have demonstrated an increased interest in investigating and punishing gun jumping. This development is part of a broader effort by the Commission to tighten its review of compliance with procedural aspects of (...)

The Spanish Supreme Court dismisses appeals by mobile operators and rules that the acquisition should have been notified for merger control (Orange / Simyo)
Callol, Coca & Asociados (Madrid)
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Callol, Coca & Asociados (Madrid)
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Callol, Coca & Asociados (Madrid)
On 23 July 2013, the NMCC found France Telecom España, S.A.U. (Orange) guilty for having failed to notify for merger control the acquisition of the exclusive control of KPN Spain, S.L.U. (SIMYO). Spanish law states that concentrations that meet either one of the (turnover and market share) (...)

The EU General Court confirms the EU Commission’s decision of imposing a €20 m fine on a seafood company for gun jumping (Marine Harvest)
McDermott Will & Emery (Dusseldorf)
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McDermott Will & Emery (Paris)
This article has been nominated for the 2018 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. BEWARE OF "GUN JUMPING": EU COURT UPHOLDS EUR 20 MILLION FINE IMPOSED ON NORWEGIAN SEAFOOD COMPANY* Between 2012 and 2013, Marine Harvest ASA (“Marine Harvest”), (...)

The EU General Court dismisses an appeal against a Commission decision for implementing acquisition of sole control without first obtaining approval under the EU Merger Regulation (Marine Harvest / Morpol)
Van Bael & Bellis (Brussels)
On 26 October 2017, the General Court dismissed an appeal by Marine Harvest against a € 20 million fine imposed on it by the Commission for implementing its acquisition of sole control over Morpol without rst obtaining approval under the EU Merger Regulation (see VBB on Competition Law, Volume (...)

The Polish Competition Authority imposes a fine of more than EUR 78,000 on a consumer eggs producer for gun-jumping (Fermy Drobiu Woźniak)
WKB Wierciński Kwieciński Baehr (Warsaw)
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WKB Wierciński Kwieciński Baehr (Warsaw)
In its decision of 19 September 2017, the Polish Competition Authority (Prezes Urzędu Ochrony Konkurencji i Konsumentów, hereinafter referred to as the “PCA”) fined Fermy Drobiu “Woźniak” sp. z o.o. (hereinafter referred to as the “FDW”) the amount of PLN 339,000.00 (approx. EUR 78,000.00) for failure (...)

The Lithuanian Competition Authority fines a shipping company for implementing an unnotified merger (Achemos grupe)
Lithuanian Competition Authority (Vilnius)
UAB Koncernas Achemos Grupė fined for unnotified merger* The Competition Council found that UAB koncernas Achemos grupė implemented an unnotified merger by acquiring sole control of UAB Jūros vartai and AB KLAIPĖDOS LAIVŲ REMONTAS. For the infringement of the Law on Competition, the Council fined (...)

The EU Commission sends statements of objection to three undertakings regarding possible breach of EU merger procedural rules (Merck / Sigma-Aldric ; GE / LM Wind ; Canon / Toshiba Medical Systems)
DG COMP (Brussels)
Mergers: Commission alleges Merck and Sigma-Aldrich, General Electric, and Canon breached EU merger procedural rules* The Commission has sent three separate Statements of Objections to Merck and Sigma-Aldrich, General Electric and Canon alleging they breached EU merger rules: General Electric, (...)

The Polish Competition Authority imposes a fine of more than EUR 124,000 for gun-jumping (Bać-Pol)
WKB Wierciński Kwieciński Baehr (Warsaw)
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WKB Wierciński Kwieciński Baehr (Warsaw)
In its decision of 5 June 2017, the Polish Competition Authority (Prezes Urzędu Ochrony Konkurencji i Konsumentów, the “PCA”) fined Bać-Pol S.A. PLN 527,000.00 (approx. EUR 124,000.00) for failure to notify of the takeover of a portion of assets of another company called Klementynka. The PCA (...)

The EU Commission sends a statement of objections to a company to investigate whether a merger was implemented before the Commission’s clearance (Altice / PT Portugal)
Shearman & Sterling (London)
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Reed Smith (Brussels)
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Shearman & Sterling (London)
When a transaction meets the thresholds of the EU Merger Regulation, companies must notify and obtain clearance from the European Commission before implementing the transaction. This means that until clearance is obtained, companies should continue to operate independently (including (...)

The EU Commission alleges a telecommunication company has breached EU rules by implementing its merger before notification or approval (Altice / PT Portugal)
DG COMP (Brussels)
Mergers: Commission alleges Altice breached EU rules by early implementation of PT Portugal acquisition* The European Commission has sent a Statement of Objections alleging that multinational telecommunications company Altice (the Netherlands), breached the EU Merger Regulation by implementing (...)

The EU Commission sends a statement of objections alleging that multinational telecommunications company breached the EU Merger regulation by implementing its acquisition before notification or approval by the Commission (Altice / PT Portugal)
Herbert Smith Freehills (Brussels)
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Herbert Smith Freehills (London)
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Herbert Smith Freehills (Paris)
On 18 May 2017, the European Commission imposed a record fine of €110 million on Facebook for providing incorrect/misleading information to the Commission during its review of Facebook’s acquisition of WhatsApp under the EU merger regulation (EUMR). On the same day, the Commission issued a (...)

The Spanish Competition Authority fines a treatment and disposal of hazardous sanitary waste company for failing to notify an acquisition for antitrust approval (Consenur / Cathisa Medioambiente)
Callol, Coca & Asociados (Madrid)
The NMCC has fined SRL Consenur, S.L.U. (Consenur) for having closed the acquisition of Cathisa Medioambiente, S.L., in August 2015 without having notified nor gained the relevant antitrust approval. The transaction was finally notified on June 2016. According to the Decision, the NMCC and (...)

The Chinese MOFCOM rules that a foreign-to-foreign deal "jumped the gun" in breach of antitrust rules (Canon / Toshiba Medical Systems)
Hogan Lovells (Beijing)
MOFCOM rules that foreign-to-foreign deal "jumped the gun" in breach of antitrust rules* In a decision adopted on 16 December 2016 and made public on 4 January 2017, the Chinese Ministry of Commerce (“MOFCOM“) fined Japanese company Canon for failure to file its acquisition of Toshiba Medical (...)

The Chinese MOFCOM fines a merger in medical imaging market for gun jumping (Canon / Toshiba Medical Systems)
University of Melbourne
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University of Melbourne
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Hogan Lovells (Beijing)
On 16 December 2016, the MOFCOM announced that it had fined Canon RMB 300,000 for failure to notify its proposed acquisition of Toshiba Medical Systems in accordance with the AML on time. Its decision was published on 4 January 2017. The proposed acquisition proceeded in 2 stages. In stage 1, (...)

The Chinese MOFCOM fines an imaging and optical products manufacturer for failure to notify its acquisition of a company active in the medical equipment sector (Canon / Toshiba Medical Systems)
Fangda (Hong Kong)
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Freshfields Bruckhaus Deringer (Hong Kong)
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Freshfields Bruckhaus Deringer (London)
On 16 December 2016, China’s Ministry of Commerce (MOFCOM) published its decision to fine Canon Inc. (Canon) for failure to notify its acquisition of Toshiba Medical Systems Corporation (TMSC) under the Anti-Monopoly Law (the AML). The decision is an important development for two key reasons: (...)

The Danish Maritime and Commercial Court requests the EU Court of Justice provide guidance on gun-jumping test (EY / KPMG)
Szecskay Attorneys at Law (Budapest)
CJEU requested to provide guidance on gun-jumping test* With Post Danmark I and II under their belts, it seems Danish courts are punching above their weight when it comes to contributing to the CJEU’s development of EU competition law through preliminary rulings. Yet another interesting (...)

The Belgian Competition Authority rejects a request to suspend an acquisition that was not subject to prior notification in the brewery sector (Alken-Maes / Boatels / AB InBev)
Van Bael & Bellis (Brussels)
On 21 November 2016, the Competition College of the Belgian Competition Authority (“BCA”) rejected a request of Brouwerijen Alken-Maes (“Alken-Maes”) to suspend the acquisition of Brouwerij Bosteels (“Bosteels”) by Anheuser-Busch InBev NV (“AB InBev”). AB InBev’s takeover of Bosteels was not subject (...)

The French Competition Authority fines €80 million a multinational telecom company for the premature completion of two mergers (Altice & SFR / OTL)
French Competition Authority (Paris)
The Autorité de la concurrence fines the Altice group 80 million euros for the premature completion of two mergers notified in 2014* The Autorité de la concurrence issued a decision today to fine jointly Altice Luxembourg and SFR Group 80 million euros, in application of Section II of Article (...)

The French Competition Authority publishes its long awaited first decision sanctioning gun jumping practices (Altice / SFR / Virgin)
DLA Piper (Paris)
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Frieh Associés (Paris)
In its decision dated 8 November 2016, the French Competition Authority (FCA) describes with much detail its appraisal of a gun jumping infringement. Among the many lessons arising from such decision, one is clearly for future redactors of corporate documentation, another is for top management (...)

The French Competition Authority sanctions companies for implementing a transaction which has been notified to the FCA but has not yet received a clearance decision in the telecommunications industry (Alice & SFR / OTL)
United Kingdom’s Competition Authority - CMA (London)
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Franklin (Paris)
FRENCH COMPETITION AUTHORITY IMPOSES ITS FIRST EVER FINE FOR GUN-JUMPING* For the first time ever, on 8 November 2016 the French Competition Authority (FCA) sanctioned companies for implementing a transaction that had been notified to the FCA but not yet received a clearance decision, (...)

The French Competition Authority fines €80M a group and its recently acquired subsidiaries for having coordinated their business strategies and commercial behaviour prior to merger control clearance (Alice & SFR / OTL)
Hogan Lovells (Paris)
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Grall & Associés (Paris)
This article was first published in Concurrences Review N° 2-2017, Art. N° 83875, pp. 231-239 I. Introduction In November 2016, the French Competition Authority (“FCA”) fined French-based Altice/Numericable group and its recently-acquired telecom subsidiaries SFR and Virgin Mobile France for (...)

The French Competition Authority fines companies for gun-jumping (Altice / SFR)
Van Bael & Bellis (Brussels)
On 8 November 2016, the French Competition Authority (FCA) fined Altice (trading as Numericable) and SFR Group € 80 million for the coordination of commercial behaviour prior to obtaining French merger control clearance. The FCA decision is ground-breaking as it imposes the highest fine ever in (...)

The French Competition Authority fines a major French telecommunications operator for gun-jumping (Altice)
Jones Day (Brussels)
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Jones Day (Paris)
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Jones Day (Paris)
This week, the French Competition Authority ("FCA") imposed a EUR 80 million fine on the Altice Group, a major French telecommunications operator, for implementing two transactions before approval by the FCA (so-called "gun jumping"). The full text is not yet available, but this decision (...)

The Indian Competition Appellate Tribunal upholds the Competition Authority’s fine for gun jumping imposed on manufacturer of industrial chemicals and fertilizers (SCM Soilfert / Deepak Fertilizers and Petrochemicals)
Vaish Associates Advocates (New Delhi)
COMPAT upholds penalty imposed on SCM Soilfert for “gun-jumping”* COMPAT by its order dated August30, 2016 has upheld the penalty imposed by the CCI on SCM Soilfert for failure to file a notice under Section 6(2) of the Competition Act, 2002 (the Act) for a combination. Deepak Fertilizers and (...)

The US DoJ imposes a $11 million fine for merger notification violation on an investment company (ValueAct)
Covington & Burling (Washington)
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Covington & Burling (Washington)
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Covington & Burling (Washington)
Yesterday, the Antitrust Division of the Department of Justice (“DOJ”) announced that it has settled its lawsuit against ValueAct Capital Management L.P. (“ValueAct”) for violating the Hart- Scott-Rodino Antitrust Improvements Act of 1976 (the “HSR Act”). The settlement is noteworthy for two (...)

The Chinese MOFCOM releases three decisions sanctioning companies for failure to notify their transactions for antitrust review (Dade Holdings / Jilin Sichang Pharmaceutical) (New United Group / Bombardier Transportation Sweden) (Beijing CNR / Hitachi)
University of Melbourne
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China Competition Bulletin (Beijing)
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University of Melbourne
On 4 May 2016, the MOFCOM released 3 decisions in which it sanctioned various companies for failure to notify their transactions for antitrust review. The decisions were all made on 21 April 2016. In each case, the MOFCOM determined that the transaction constituted a concentration under Article (...)

The Spanish Competition Autorithy fines a company for failure to notify, taking into account that the actual market share resulting from the transaction in the market of diagnostic business of blood transfusions met the legal notification threshold (Grifols)
Callol, Coca & Asociados (Madrid)
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Callol, Coca & Asociados (Madrid)
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Callol, Coca & Asociados (Madrid)
The NMCC has fined with € 106.500 Grifols for failure to comply with the obligation to notify a concentration subject to the minimis market share threshold (i.e., when the turnover of the target does not exceed the € 10 million the market share threshold increases up to 50%). In particular, the (...)

The Chinese MOFCOM cracks down on failures to notify qualifying mergers, acquisitions and joint ventures (Fujian / Shenzhen CHINO-E) (Microsoft / BesTV) (Bombardier / CSR Nanjing Puzhen) (Suzhou Erye / Shanghai Fosun)
Skadden, Arps, Slate, Meagher & Flom (Brussels)
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Skadden, Arps, Slate, Meagher & Flom (Brussels)
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Skadden, Arps, Slate, Meagher & Flom (Brussels)
This article has been nominated for the 2016 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. China’s Anti-Monopoly Law requires businesses to notify transactions to the Ministry of Commerce (MOFCOM) for merger control review, so long as the parties meet (...)

The Chinese MOFCOM fines several undertakings for breaches of merger notification rules (FJEI / FPID) (Nanjing Puzhen / Bombardier Sweden) (BestTv / Microsoft)
AnJie Law (Beijing)
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AnJie Law (Beijing)
Warning from MOFCOM: Second Wave of Penalties Imposed for Breaches of Concentration Notification Rules* On September 29th 2015, the Ministry of Commerce of the P.R.C (“MOFCOM”) published four administrative decisions on penalties for illegal activities involved in the concentration of (...)

The US FTC announces a settlement for failing to file a notification under Hard-Scott-Rodino Act before purchasing shares (Third Point)
McDermott Will & Emery (Washington)
IN DEPTH The Federal Trade Commission (FTC) announced a settlement on August 24, 2015, with Third Point Funds for failing to file a notification under the Hart-Scott-Rodino Antitrust Improvements Act (HSR Act) in connection with the acquisition of shares in Yahoo! Inc. (Yahoo) in 2011. Third (...)

The Danish Competition Authority refers to its first gun-jumping case to the public prosecutor (EY / KPMG)
Gorrissen Federspiel (Copenhagen)
First Danish gun jumping case referred to the public prosecutor* On 11 June 2015 the Danish Competition and Consumer Authority (DCCA) reported Ernst & Young Europe LLP (EY) to the public prosecutor for pre-implementing the merger with the former Danish KPMG member firm (KPMG Denmark). EY (...)

The Brazilian Competition Authority issues guidelines on gun jumping
Mattos Filho Veiga Filho Marrey Jr & Quiroga (New York)
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Mattos Filho, Veiga Filho, Marrey Jr. & Quiroga (Sao Paulo)
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Mattos Filho, Veiga Filho, Marrey Jr. & Quiroga (Sao Paulo)
On May 20, 2015, the Administrative Council for Economic Defense (“CADE”) issued guidelines on gun jumping (“Guidelines”). These Guidelines are not binding on parties involved in transactions that require antitrust approval in Brazil, but they serve as an important guidance for companies and (...)

The Serbian Competition Authority fines a publishing company for failure to notify a concentration (Farmakomfor / Politika newspapers and magazines)
BDK (Belgrade)
In my last post, I reported on the on-going investigation into the 2012 acquisition of a 50% stake in the publishing house Politika newspapers and magazines. The buyer of a 50% stake from the well-known German publisher WAZ was a then unknown, formally Russian, company East Media Group. The (...)

The Indian Competition Authority fines parties for gun jumping (Zuari Fertilisers and Chemicals / Zuari Agro Chemicals)
Sarvada Legal (New Delhi)
The Competition Act, 2002 (“Act”) read with the attendant Combination Regulations provide for a mandatory notification of the transaction to the Competition Commission of India (“CCI”) provided that threshold limits provided under the Act are met (“combination”). The Act provides for a suspensory (...)

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