Gun jumping
Gun jumping

The following Competition practice note provides comprehensive and up to date legal information covering:

  • Gun jumping
  • Failure to notify
  • Substantive gun jumping
  • Enforcement practice—implications and consequences of breaching gun jumping laws
  • European Union
  • United States
  • Practical guidance—how to avoid gun jumping
  • Unprotected exchange of information and co-ordination of competitive behaviour pre- and post-signing
  • Steps to integrate the buyer's and target’s business
  • Involvement by the acquiring party in the decision-making of the target’s business
  • More...

Both the EU and the US impose on parties to transactions notification requirements when certain thresholds are met. The purpose of these requirements is to ensure that competition authorities have the opportunity to review transactions that could substantially harm competition before they are closed.

Gun jumping relates to unlawful pre-merger co-ordination or integration between the parties to a transaction. More precisely, it is a term used to describe two types of scenarios:

  1. transactions that are closed without any notification despite thresholds having been triggered (so-called ‘failure to notify’ cases), and

  2. substantive gun jumping (ie integration measures being taken prior to clearance—frequently while review by competition authorities is pending)

For a practical checklist of do’s and don’ts in relation to gun jumping, see Gun-jumping ’Do’s and don’ts’—checklist.

Failure to notify

Failure to notify cases refer to cases where parties fail entirely to notify the competition authorities of a transaction triggering merger thresholds, thus violating the applicable obligation to notify a transaction prior to its implementation under Article 4(1) of the EU Merger Regulation and under section 7A of the Clayton Act, the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (HSR Act). Of course, in cases where the EUMR is not applicable, transactions may nevertheless be subject to pre-merger notification requirements at the Member State level.

Failure-to-notify cases frequently occur in less clear-cut scenarios such as staggered acquisitions of

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