This paper addresses the position of public undertakings that may appear in a State aid law-related context in their capacity of intermediaries or grantors of aid vis-à-vis Article 108(3), third ...sentence, TFEU, to check whether the standstill obligation directly applies to public undertakings where they act to grant or disburse State aid. Public undertakings must refrain from granting aid in breach of the standstill obligation, as addressees of the standstill obligation. Where a public undertaking fails to apply Article 108(3) TFEU, it opens itself to claims based on Union law, including claims for damages. Union law is stated as it stood on 20 June 2021.
The long awaited publication of the decision of the European Commission in Canon/Toshiba Medical Systems Corporation provides insight into the Commission's standpoint on the use of warehousing ...structures in transactions that are notifiable under the EU Merger Regulation and guidance on potential concerns relating to these arrangements. The decision is also a further illustration of the Commission's strict enforcement of procedural infringements (a fine of EUR 28 million was imposed in this case). The US and China also imposed fines for gun jumping in this case, with Japan also issuing a warning to the parties of a potential violation.
In most jurisdictions, the parties to a merger are not allowed to implement the transaction prior to receiving clearance from the relevant competition authority. Competition authorities have become ...increasingly vigilant about enforcing this standstill obligation. Recent high profile cases involving record fines provide some insight into which activities may be regarded as impermissible 'gun jumping' and which measures are permitted in preparing to implement a merger. This article analyses the European Commission's decision in Altice and the Court of Justice's judgment in Ernst & Young and draws conclusions, in particular, on the implications for information exchange between merging parties and the identification of 'ordinary business', which must remain unaffected until closing of a prospective concentration.
Case T-425/18 Altice Europe NV v European Commission, Judgment of the General Court (Sixth Chamber) of 22 September 2021 The European Union Merger Regulation (EUMR) states that the acquirer must ...notify the acquisition to the European Commission (EC) and must not implement the concentration prior to its clearing. Altice was found to have infringed both Article 4(1) EUMR, an infringement often referred to as Gun Jumping, and Article 7(1) EUMR, known as standstill obligation. Based on the findings, the EC fined Altice an unprecedented fine of €124.5 million for both infringements, each €62.25 million. This is the highest fine imposed for such infringements ever. Altice appealed to the General Court (GC). The appeal focused on the finding and the legality of the EC’s decision to issue fines for violations of EUMR. The GC largely dismissed the applicant's annulment action except in relation to the amount of the monetary fines. Based on its unlimited powers related to fines, the GC reduced the fine by 10%.
ABSTRACT
This article discusses the jurisprudential practice of the Competition Commission of India (CCI/‘Commission’) when it comes to the issue of gun-jumping. Although the Indian merger control ...regime has only been in effect for half a decade, the CCI has found the parties guilty of violating the standstill obligation imposed by India’s competition law. These decisions have clarified the Commission’s view with respect to issues such as the target exemption, trigger document, interconnected transactions, and control and penalty imposition. This article also compares the Indian experience to the decisions of more mature competition law institutions such as the European Commission/General Court/European Court of Justice (ECJ), where necessary, to compare their approaches.
It is well-established that national courts play a crucial role in terms of enforcement of EU State aid law. However, it also well-known that this role is undervelopped in many EU Member States. For ...example, Belgian State aid courts face all sorts of uncertainties and difficulties when enforcing EU State aid law. This contribution therefore argues that the Belgian State should take (regulatory) measures to ensure that Belgian courts can enforce EU State aid law. Kyewords: Belgian courts; enforcement; standstill obligation; unlawful State aid; obstacles and uncertainties; regulatory framework
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