Scope and implications of the standstill obligation in European merger control

This article intends to illustrate the multiple issues raised by Article 7 of Regulation No. 139/2004, and in particular the scope of the standstill obligation resulting from Article 7(1) and the derogation provided by Article 7(2). In the context of the increasingly stringent approach by antitrust authorities with respect to “gun jumping,” it aims at setting out the applicable analytical framework by reviewing a number of recent decisions issued by the European Commission and the Court of Justice, namely, Veolia/Suez, Marine Harvest, Canon/Toshiba, Ernst & Young, Altice or, less recently, Ryanair/Aer Lingus. By putting these decisions into perspective, it identifies the categories of behaviours that are likely to be covered by the standstill obligation, whether they consist of successive transactions aimed at transferring the ownership of the shares of the target or of other contractual arrangements that may entail a transfer of control. Conversely, it reviews the types of decisions that, although taken in light of an anticipated merger, escape the prohibition laid out by Article 7(1).