November 23, 2021

Antitrust: EU General Court Affirms Stringent Approach to Gun Jumping

A few years ago, I blogged about the European Commission’s decision to levy a whopping €124.5 million fine on Altice for improper “gun jumping” in connection with its acquisition of PT Portugal. This Cleary memo notes that the EU’s General Court recently affirmed that decision. Here’s the intro:

On September 22, 2021, the General Court upheld the European Commission’s decision to fine Altice Europe NV, a multinational telecommunications company, for prematurely implementing its acquisition of PT Portugal. Altice had engaged in conduct that contributed to the change in control of PT Portugal before it had formally notified the merger to the Commission, and before the Commission had approved it. Specifically, Altice had (i) acquired rights under the transaction agreement to veto PT Portugal’s ordinary-course business decisions; (ii) actually influenced PT Portugal’s commercial activities on several occasions; and (iii) received competitively-sensitive information from PT Portugal.

The memo goes on to provide a detailed review of the gun jumping restrictions imposed by the EU’s Merger Regulation, as well as the specific provisions of the agreement and actions of the parties that were found to be problematic in the Altice case.  It also makes a number of specific recommendations to assist parties in avoiding potential gun jumping issues in their own transactions.

John Jenkins