The liability of merging parties for ‘gunjumping’ in the light of the ‘notification and standstill’ obligations under the EU Merger Regulation

Abstract

Lately, competition authorities seem to be all the more on the qui vive for ‘gun-jumping’. The Commission has recently imposed a record fine of 124.5 million euros for an overhasty implementation of a merger, the Hungarian, French and UK NCAs have recently issued their first ever gun-jumping decisions, and the Irish NCA has just secured its first criminal conviction for gun-jumping before the Dublin Metropolitan District Court. Whilst it is recognised that between the signing of the merger agreement and integration, merging parties need to conduct due diligence, plan the integration of their businesses and preserve the value of the target undertaking, merging parties must be careful not to implement the merger until it is duly assessed and cleared by the relative competition authority. Recent ‘gun-jumping’ cases go a long way in cautioning merging parties to be ever more heedful of the boundaries set by competition law. On the other hand, guidance on what constitutes ‘gun-jumping’ remains relatively scarce, making it an even bigger challenge for merging parties to dodge liability.