Mitigating antitrust risks in M&A deals

The principles developed by the EU courts in relation to liability for competition law infringements may potentially create important risks for companies in the framework of their M&A transactions. For this reason, antitrust due diligences have become an essential tool allowing companies to assess and limit such risks. This article explores both the means to which companies may recourse to mitigate antitrust risks in M&A deals but also their limits. 

1. Everybody knows that antitrust plays an important role in M&A deals because of the frequent need to notify transactions to competition authorities. But antitrust has another, less known, role to play: mitigating the risks of buying a target engaged in anticompetitive practices. To better understand this role, practical as well as legal questions should be addressed. For the sake of brevity, legal questions are dealt within this article under the EU legal framework, although identical issues, with possibly different answers, might also arise under other legal frameworks. 2. In M&A deals, like in real estate, acquirers want to get the best picture of the property they are buying, be it a company or a house. In real estate, buyers can mandate architects, experts, and

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Authors

  • Orrick, Herrington & Sutcliffe (Paris)
  • Orrick, Herrington & Sutcliffe (Paris)

Quotation

Elise Durand, Patrick Hubert, Mitigating antitrust risks in M&A deals, May 2022, Concurrences N° 2-2022, Art. N° 106196, pp. 246-251

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