Clifford Chance

European Commission reaffirms prohibition on warehousing structures under the EUMR

28 June 2019

The European Commission has fined Canon €28 million for partially implementing its acquisition of Toshiba Medical Systems Corporation (TMSC) before having obtained clearance under the EU Merger Regulation (EUMR).  The transaction had been structured as a two-stage "warehousing" arrangement, in which an interim buyer acquired control of TMSC before EUMR approval had been obtained, followed by a transfer of ownership to Canon after EUMR approval.

The Commission's decision to fine Canon for gun-jumping reaffirms its long-standing position that such warehousing structures breach the EUMR prohibition on implementation of a notifiable transaction prior to clearance.  However, it remains to be seen whether the EU Courts agree with that position.

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