Both the Electrabel case and the Marine Harvest case serve as harsh wake-up calls that companies and their antitrust advisers must adopt a high level of caution when analysing whether a transaction must be notified under the EU Merger Regulation (“EUMR”) and approach the European Commission (“Commission”), if in doubt.
In both cases, the Commission imposed stiff fines on companies for breaching the “standstill” obligation contained in Article 7(1) EUMR and, in both cases, the companies were reproached for failing to notify acquisitions of de facto sole control, upon which it can be notoriously difficult to make a call in certain cases...
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