There have been several interesting decisions relating to “gun jumping” issues at both EU and national levels. In addition to gun jumping, we will discuss about the negotiations that happen between a purchaser and a seller before a Sale and Purchase Agreement (SPA) is signed, and before and before the acquisition is closed. What can be done and what cannot be done pre- and post-SPA from a competition law perspective?
Gun jumping is not an old issue. There are a number of cases which are currently on the Commission’s desk: Altice’s acquisition of PT Portugal and the Cannon case (two-step warehousing transaction). Lastly, we will discuss the relevance of AG Wahl’s opinion in Ernst & Young P/S v Konkurrencerådet (C-633/16).
What is the background to the standstill obligation? According to Article 7 EUMR, a transaction must not be put into effect until the Commission has actually given clearance or until the legal deadline for a decision has expired. The rationale for this standstill obligation is that the Commission needs to make an ex ante review of the transaction to ensure that, before giving it green light, the transaction poses no threat to competition. The Commission must ensure that if there was a prohibition decision, this one is not undermined. The Commission must also ensure that effective remedies can be implemented. The standstill obligation incentivises the parties to the transaction to cooperate with the authority.