Short Reads

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

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

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

03.06.2021 NL law

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.


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.


This article was published in the Competition Newsletter of June 2021. Other articles in this newsletter:


Related news

08.06.2021 NL law
De Europese Klimaatwet uitgelicht

Short Reads - Op 21 april 2021 is een voorlopig akkoord bereikt over de Europese Klimaatwet. Deze Klimaatwet kan worden gezien als de kern van de Europese Green Deal, die in december 2019 werd gepubliceerd door de Europese Commissie. Het overstijgende doel van deze instrumenten is om een klimaatneutraal Europa te bewerkstelligen in 2050. De Europese Klimaatwet zorgt ervoor dat deze klimaatneutraliteitsdoelstelling in een Europese verordening wordt vastgelegd. Dit blogbericht gaat nader in op de Europese Klimaatwet en legt uit wat dit met zich brengt.

Read more

22.07.2021 NL law
Towards a European legal framework for the development and use of Artificial Intelligence

Short Reads - Back in 2014, Stephen Hawking said, “The development of full artificial intelligence could spell the end of the human race.” Although the use of artificial intelligence is nothing new and dates back to Alan Turing (the godfather of computational theory), prominent researchers – along with Stephen Hawking – have expressed their concerns about the unregulated use of AI systems and their impact on society as we know it.

Read more

08.06.2021 NL law
Actualiteiten milieustrafrecht: zorgelijke ontwikkelingen

Short Reads - Vrijdag 28 mei jl. hadden wij een inspirerend webinar over actualiteiten op het gebied van milieustrafrecht. Wij spraken gedurende 90 minuten onder meer over aansprakelijkheden van bestuurders, de zorgplichten, incidentenrapportages vanuit strafrechtelijk- en bestuursrechtelijk perspectief.

Read more

03.06.2021 NL law
First material judgment in Dutch damages proceedings in trucks infringement

Short Reads - In its judgment of 12 May 2021, the Amsterdam District Court ruled that it has not been established that it is definitively excluded that the trucks infringement led to damage to the claimants. However, this does not alter the fact that it must still be assessed for each claimant whether the threshold for referral to the damages assessment procedure has been met. For this to be the case, it must be plausible that a claimant may have suffered damage as a result of the unlawful actions of the truck manufacturers. The Amsterdam District Court has not yet ruled on this issue.

Read more