EU Merger Control: Recent EU General Court Judgments on Merger Control

Sullivan & Cromwell LLP - October 30, 2017

On October 26, 2017, the EU General Court handed down two important judgments relating to the EU Commission’s enforcement of the EU Merger Regulation (Council Regulation (EC) 139/2004 on the control of concentrations between undertakings).

In KPN BV v European Commission, the Court annulled the EU Commission’s decision to approve Liberty Global plc’s acquisition of Ziggo NV. The litigation was started by KPN BV, which is one of Liberty Global and Ziggo’s competitors. KPN BV alleged (successfully) that the decision was vitiated by the Commission’s failure to carry out a properly reasoned analysis of the vertical effects of the transaction in premium pay TV sports channels.  It is extremely rare for the General Court to annul a merger approval decision, particularly when the litigation seeking annulment is brought by one of the merging parties’ competitors.
In Marine Harvest ASA v European Commission, the Court confirmed that the EU Commission had acted lawfully when it fined Marine Harvest ASA EUR 20 million for acquiring a block of shares in its competitor Morpol ASA before the Commission had approved the transaction under the EU Merger Regulation. The judgment highlights the need for merging parties to comply scrupulously with the EU Merger Regulation or face heavy fines.