EU Law and Practice Contributed by: Porter Elliott, Catherine Gordley and Niharika Parshurampuria, Van Bael & Bellis
3.7 Penalties/Consequences of Inaccurate or Misleading Information Fines and Penalties The Commission can impose fines of up to 1% of aggregate annual turnover on a party that intentionally or negligently supplies incorrect or misleading information, whether in the notifica - tion form or in response to a request for infor - mation. The Commission can also impose periodic pen - alty payments of up to 5% of a party’s average daily aggregate turnover for non-compliance with certain Commission decisions, including failing to provide complete and correct informa - tion in response to a formal request for informa - tion. The Commission has become more active in imposing fines on merging parties that supply incorrect or misleading information. In 2017, it imposed a EUR110 million fine on Facebook relating to its acquisition of WhatsApp. The Commission also imposed a fine of EUR52 mil - lion on General Electric in 2018 and a fine of EUR7.5 million on Sigma-Aldrich in 2021; each of these fines related to failure to fully disclose products or capabilities still in development. Revoking Clearance The Commission has the power to revoke a pre - viously granted clearance decision if it discovers that said decision was based on incorrect infor - mation for which one of the parties was respon - sible, or where the clearance was obtained by deceit. In practice, the Commission has only revoked one clearance decision on this basis ( Sanofi/Synthelabo in 1999, although this merger was ultimately conditionally cleared following a new notification and review process).
the standard forms in many other jurisdictions. In recent years, the Commission has increasingly reviewed and approved deals under the simpli - fied procedure, to the point that most deals now fall into this category. Submission Commission notifications previously needed to be made in hard copy form, but the Commission started to accept electronic notifications during the COVID-19 pandemic. Since late 2023, the Commission’s default mechanism to accept noti - fications is electronically, through its “EU Send” platform (previously, ”eTrustEx”). The Commis- sion’s website provides further guidance on the required specifications for submissions. Notifications may be submitted in any of the EU official languages, although the overwhelming majority of notifications are in English. Any sup - porting documents not in an official language must be translated. 3.6 Penalties/Consequences of Incomplete Notification The Commission has the discretion to reject a notification as incomplete. In this case, Phase I of the Commission’s review will begin only once the parties have submitted a notification that the Commission considers complete. For this reason, it is standard practice for par - ties to submit a draft of Form CO during pre- notification and to wait until the Commission has indicated that the notification appears complete (see 3.9 Pre-Notification Discussions With Authorities ) before formally filing.
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