The number of merger filings involving one or more jurisdictions has risen sharply in recent years, in tandem with the increase in merger control regimes globally. The majority of large M&A deals have a multijurisdictional element, adding an additional layer of complexity to transactions that require merger clearance by authorities in numerous countries.
Any infractions of the rules can incur severe penalties. In 2016, for example, the French competition authority imposed a record fine of EUR 80m on the telecommunications company Altice for implementing an acquisition prior to merger control clearance – known as ‘gun jumping’.
Clients must be on top of all new merger filing regimes in which they operate and be aware of the numerous differences in requirements between them.
Harald Kahlenberg, Partner, CMS Stuttgart
Some of the recent multijurisdictional transactions the CMS Competition & EU Group has advised on include:
- French group Trigano, a leading manufacturer of leisure vehicles, acquired Adria, one of its competitors, creating one of the largest manufacturers of leisure vehicles in Europe. Merger control filings were submitted in France, Germany, Slovenia and Spain.
- Atlas Copco AB, the Swedish conglomerate, sold its Road Construction Equipment division to French industrial and construction company Fayat Group. The division manufactures rollers for asphalt and soil applications, planers and pavers, sold under the Dynapac brand. Despite major overlaps with Fayat’s business, CMS successfully obtained the relevant clearances. Merger control filings were submitted in Germany, UK and Poland.
- Heraeus acquired all shares in Argor-Heraeus from former joint venture partners Commerzbank and Münze Österreich. It created a leading producer of precious metals. Merger control filings were submitted in Switzerland, Germany and Austria.
To help ensure that clients get it right, the CMS Competition & EU Group has also set up a series of webinars which cover the dos and don’ts regarding the merger control and competition law aspects of M & A transactions, due diligence and share purchase agreements. Topics include stand-still obligations and ‘gun jumping’, exchange of information prior to clearance by the competition authorities, ‘clean teams’ and due diligence, as well as merger control provisions such as non-compete clauses in M&A agreements. For more information see http://bit.ly/WebinarMergerControl
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