Earlier this year, the European Commission (EC) handed down an unprecedented €110m fine to a technology giant for providing misleading information during its 2014 acquisition of another major technology company. Despite the fact that the misinformation was provided in error, the EC was firm in its expectation that merging parties provide complete and accurate information during the proceedings. EU competition commissioner Margrethe Vestager commented that the decision was “a clear signal to companies that they must comply with all aspects of EU merger rules, including the obligation to provide correct information”.

Cases like the above exemplify the heightened scrutiny among EU competition and antitrust authorities on data issues and disclosure obligations during merger clearance proceedings. Alongside that increase in activity has been an expansion of the breadth and scope of Competition Commission requests for information, with the EC’s intervention rate in merger clearance increasing to 30 percent in the last three years.

We have also recognised a growing similarity between heightened EU merger clearance phase II investigations and those of US second request matters. These matters are particularly challenging for corporations, as they often involve large volumes of data and short time frames for completing data review. From the EC’s Directorate-General Comp (DG Comp) draft guidelines on merger exercises to the UK Competition and Market Authority (CMA) best practice guideline outlining expectations for how merging parties should respond to document requests, recent publications from the authorities signal that the trend in increased antitrust oversight is likely to continue.

Oct-Dec 2019 issue

FTI Consulting