11 May 2017

Commission warning: double-check accuracy of your merger info

The European Competition Commissioner, Margrethe Vestager, recently announced that parties to a “handful of mergers” are under scrutiny on suspicion of submitting “incorrect or misleading” information to the Commission during its merger investigation. The announcement comes shortly after Facebook received formal charges for providing incorrect data during proceedings for the acquisition of WhatsApp. This is a clear reminder for companies that they are under a legal obligation to supply accurate and complete information as a notifying party or as a third party responding to an information request. Failing to do so can result in substantial fines.

Until 2004, the maximum fine for providing misleading or incorrect information was EUR 50,000. Under this old regime, the Commission imposed seven fines. Among the first sanctioned were two French pharmaceutical companies, Sanofi and Synthelabo, which failed to accurately outline their activities in the morphine and morphine derivatives market. The Commission fined both companies the maximum amount because the incorrect information eventually led the Commission to erroneously approve the transaction. Another precedent is the KLM/Martinair airline merger, where KLM failed to list around ten of its charter destinations. Although the missing information did not affect the merger assessment, KLM received a EUR 40,000 fine for breaching its legal obligations.

In another case, Tetra Laval’s submission of misleading data led to a high fine. The Swiss-Swedish carton packaging company did not fully disclose relevant R&D and IP information in its merger notification and in a response letter to the Commission. Tetra Laval’s infringement constituted a breach of two provisions of the Merger Regulation and consequently led to two fines totalling EUR 90,000. In 2004, Deutsche BP received a EUR 35,000 fine because it did not clearly explain its position on certain vertically-affected markets in a notification of its Erdoelchemie purchase.

Remarkably, not a notifying party, but a third party to a merger received the highest fines by far. During the Kvaerner/Ahlstroem joint venture investigation, the Commission asked Mitsubishi for market information necessary for its merger assessment. Following Mitsubishi’s failure to assist in the proceedings despite repeated formal requests, the Commission imposed a maximum fine of EUR 50,000 and a periodic penalty payment for every day Mitsubishi delayed the submission of the data requested, which ultimately resulted in a EUR 900,000 penalty.

In May 2014, the maximum fine was raised to the current level of up to 1% of a company’s annual revenue. It remains to be seen whether the Commission will indeed impose this maximum fine level on the “handful of mergers” currently suspected of submitting “incorrect or misleading” information.