On 18 May 2017, the Commission provided two examples of how companies can run into trouble by infringing the merger control rules. One case concerned gun-jumping and the other concerned providing incorrect or misleading information. The same principles apply in most jurisdictions around the world and, given the wide scope of application of the rules in many countries, companies should proceed carefully.
In a case concerning provision of information, the Commission fined Facebook €110 million for providing incorrect or misleading information during the Commission's 2014 investigation under the EU merger rules of Facebook's acquisition of WhatsApp. The obligation to provide accurate information applies regardless of whether the information impacted the ultimate outcome of the merger assessment.
In the gun-jumping case, the Commission has sent a statement of objections (preliminary statement of case) alleging that telecommunications company Altice breached EU merger rules by implementing its acquisition of PT Portugal before notification to or approval by the Commission.
In February 2015, Altice notified the Commission of its plans to acquire PT Portugal. The Commission cleared the transaction subject to conditions on 20 April 2015. The Commission alleges that, instead of waiting for clearance as required by the EU merger rules, Altice implemented the acquisition prior to the adoption of the Commission's clearance decision, and in some instances, prior to its notification to the Commission.
In particular, the Commission considers that the purchase agreement between the two companies put Altice in a position to exercise decisive influence over PT Portugal before notification or clearance of the transaction and that, in certain instances, Altice exercised decisive influence over PT Portugal.