'Gun-Jumping' - A Priority For Competition Enforcers In Ireland And Abroad

Author:Ms Kate McKenna
Profession:Matheson
 
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We wrote last summer about an investigation by the Competition and Consumer Protection Commission ("CCPC") into a suspected case of 'gun-jumping', which is the prohibited practice of implementing a transaction without having first obtained merger control clearance. Launched in February 2018, the CCPC's investigation into whether Armalou Holdings Limited breached merger control rules when it acquired Lillis O'Donnell Motor Company Limited (through its wholly-owned subsidiary, Spirit Ford Limited), without first obtaining merger control clearance, remains ongoing.

Since then, competition enforcers across the globe have continued to take action against gun-jumping. These cases provide useful guidance to merger parties about what actions (eg pre-integration planning) may be acceptable and what may fall foul of the rules.

For example, a recent case in Australia involved the only two suppliers of blood and tissue services (Cryosite and Cell Care). Cryosite had signed an agreement to sell its assets in its blood and tissue banking business to Cell Care. On signing the agreement, Cell Care made an upfront, non-refundable payment of AUS $500,000 to Cryosite and, in return, Cryosite agreed to refer all customer enquiries to Cell Care after the agreement was signed but before the acquisition was completed. The Australian Competition and Consumer Commission (the "ACCC") found that this essentially amounted to a cartel, since it restricted or limited Cryosite's supply of blood and tissue banking services and allocated potential customers from Cryosite to Cell Care. It ordered Cryosite to pay AUS $1.05...

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