The EU gets tough on gun-jumping

This publication first appeared in the September 2017 edition of The M&A Lawyer.

Like many international merger control stat- utes, the EU Merger Regulation (EUMR) prohib- its the closing of a notifiable transaction until the European Commission (the Commission) grants or is deemed to have granted antitrust approval. Until recently, however, the Commission has pursued very few violations of this rule, known as “gun-jumping,” in particular compared to the U.S. antitrust agencies. The Commission’s recent actions, and tough talk by EU Competition Com- missioner Margrethe Vestager, suggest that the relatively relaxed European approach to gun- jumping is over.

In her May 2017 speech on “Competition and the Rule of Law,” Commissioner Vestager said that if merging parties “jump the gun, we take that very seriously indeed,” because “otherwise, the harm to competition could already be done, before we have the chance to intervene.”1 Also in May, the Commission announced gun-jumping proceedings against the French company Altice, which recently received a gun-jumping fine from the French authority in connection with two other transactions. Two months later, the Commission opened another gun-jumping case, against Canon. If these cases, involving alleged partial implementation of notified transactions, lead to infringement decisions and fines, they will be the first of their kind in the EU.

This article discusses the types of conduct that may lead to a finding of gun-jumping and the Commission’s 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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