Canon/TMSC: Slutet för warehousing-arrangemang? : En rättslig analys av warehousing-arrangemang i ljuset av Ernst & Young och Canon

Sammanfattning: The EU merger control regime, like most jurisdictions, requires the pre-notification of concentrations that meet certain thresholds and prohibits the implementation of a concentration before the Commission has declared it compatible with the internal market. Violations of these obligations is often referred to as ”gun jumping” and can give rise to substantial fines. The Commission’s merger control, and especially the gun jumping rules, can in some situations cause problems for the parties to a concentration. This is for example the case if the seller is in immediate need of receiving the purchase price in an irreversible way or if there is a risk that the Commission will not approve the transaction due to competition concerns. To allow transactions to take place in these circumstances, a structure has been developed, where an interim buyer, often a bank, temporarily acquire the business from the seller and hold it until the final acquirer is granted an approval decision under the EUMR. The structure is commonly called “warehousing” and allows for a change of control in a speedily way that addresses the seller’s financial difficulties and facilitates the efficient allocation of risk between seller and purchaser. The primary aim of this paper is to examine the legality of warehousing arrangements. This topic has gained special attention in recent years. Firstly, as a result of ECJ’s landmark judgement in Ernst & Young, where the ECJ for the first time clarified its view on what measures constitute gun jumping. Secondly, due to the Commission fining Canon €28 million in June 2019 for the company’s use of a two-step ”warehousing” structure in connection with its acquisition of Toshiba Medical Systems (TMSC). This essay concludes that the implementation of the interim transaction in a warehousing structure generally constitute a partial implementation of a concentration in violation of the gun jumping rules. However, it is still unclear how the change of control formula presented by the ECJ in Ernst & Young should be interpreted, and especially what measures constitutes a partial implementation of a concentration, and further guidance on this issue would therefore be welcome. This essay also examines what alternatives to warehousing arrangements that currently exist and if any of these can be regarded as acceptable substitutes to warehousing. The findings in this paper demonstrates that the alternatives must be regarded as acceptable in most cases, but not in all, further illustrating the need for more clarity in this area of law.