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Stibbe | Triple-check merger info to prevent costly fines – or worse

Companies should check their merger information for accuracy, truthfulness and completeness before handing it over to the European Commission: providing incorrect or misleading information can lead to significant fines and even to the merger clearance decision being revoked.

Chemicals company Sigma-Aldrich was fined EUR 7.5 million for having provided incorrect or misleading information on three separate occasions during the Commission’s review of its acquisition by Merck. This is the third fine imposed for providing incorrect or misleading merger information since the introduction of the 2004 EU Merger Regulation.

These fines confirm that competition authorities stringently scrutinise and verify the information provided by companies in merger cases and that sanctions for non-compliance can be severe. A useful reminder for companies to ensure they retrieve all relevant information within their business organisation, and triple-check its accuracy before submitting it.

Misleading merger information

In 2015, the European Commission approved Merck’s acquisition of Sigma-Aldrich. The approval was subject to the divestment of certain Sigma-Aldrich assets to address the Commission’s competition concerns in markets for specific laboratory chemicals.

In 2016, a third party pointed out that Sigma-Aldrich had failed to disclose iCap, an innovation project closely connected to the divested business, to the Commission. In 2021, this resulted in the Commission imposing a fine of EUR 7.5 million on Sigma-Aldrich for having committed three distinct violations: failure to discuss the iCap project during the remedy submissions as well as in its replies to two specific requests for information. The Commission found indications that Sigma-Aldrich withheld the information to avoid having to transfer iCap to the purchaser of the divestment business.

Consequences of misleading merger information

Companies can face fines up to 1% of their annual turnover for providing the Commission – either intentionally or negligently – with incorrect or misleading information. In setting the fine for Sigma-Aldrich’s three infringements, the Commission considered the following factors:

  • the importance of providing correct and non-misleading information to safeguard an effective EU merger control system;
  • the fact that the incorrect or misleading information related to an innovation project that was connected to and important for the divestment business;
  • the fact that, due to the innovation project’s secret and sensitive nature, Sigma-Aldrich was the Commission’s only source of relevant information.

This is the third time the Commission has imposed a fine for incorrect or misleading information under the 2004 EU Merger Regulation (see our May 2019 newsletter). Apart from imposing fines, the Commission may also revoke merger clearances if they turn out to be based on incorrect information. So far, however, the Commission has refrained from doing so.

Conclusion

Companies should realise that supplying incorrect or misleading information at any stage of a merger case may have far-reaching consequences. The Commission’s recent fines show it is actively enforcing these procedural mishaps, irrespective of whether they occur in the notification form, a reply to a request for information or in a proposed remedy package.

Other competition authorities have a similar determination towards enforcement, as underlined by the call from the UK CMA, the Australian ACCC and the German Bundeskartellamt for close scrutiny of all documents and data submitted in support of an intended merger’s efficiency claim. According to their joint statement, experience suggests that merging companies tend to overstate their intended merger’s pro-competitive benefits whilst third parties (such as suppliers, competitors or customers) may be reluctant to counter these claims for risk of harming their commercial relationship with the merged company.

Companies are advised to anticipate this potential scepticism over their merger submissions. Pinpointing the right persons within their organisation to retrieve the relevant information, and checking it for accuracy and completeness before submitting it, will go a long way.

Authors:

  • Floris ten Have, Partner Amsterdam

Compliments of Stibbe – a member of the EACCNY.