Earlier this year the European Commission (“EC”) handed down an unprecedented €110 million 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 Commission 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 amongst 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. Corporations engaging in M&A activity must begin to understand this new landscape and prepare their data discovery processes accordingly.
Corporations need to be prepared for a marked increase in the EC’s scope and scrutiny over anti-competitive and antitrust issues. This makes it even more crucial for corporations to partner with counsel and technology experts who not only understand regulator expectations, but also understand best practices and have innovative solutions for addressing the complex data challenges that have become all too common in antitrust enforcement exercises.