July 12, 2011



In this article Maria De Heaver, founder of Merger Antitrust Review, analyses whether the current EU antitrust investigation on truck manufacturers may hinder or delay the EU’s grant of merger approval in Volkswagen’s bid for MAN. For a full version of this article see www.arbantitrust.com



In May 2011 Volkswagen announced its takeover offer for  MAN subject  to  EU’s merger approval.

In January 2011, the EU confirmed raids to the premises of  truck manufacturers to gather information on  antitrust violations in the EU, and it noted that “there is no legal deadline to complete [these] inquiries.”

The question that this statement raises is whether the EU can refuse to give Volkswagen/MAN merger approval  until its investigation on ‘anticompetitive practices’ by truck manufacturers is resolved.

Merger control legislation applicable to bids of  which have effect on EU  trade  is set out in EC 2004 Merger Regulation known as the  ECMR which sets  binding time deadlines for the EU to decide on whether a deal should receive merger antitrust clearance.

The fact that a EU cartel investigation  affecting one or more parties to a deal that is subsequently notified to the EU for merger clearance is not going to hinder or put on hold the EU’s antitrust review and approval  under the ECMR is illustrated by a speech by Competition Commissioner Almunia on 10th March 2011:

“My main message is that market reality… must lie at the core of our merger analysis. Let me illustrate this point using the example of the Prysmian/Draka merger that we cleared last month. This was an unusual case because a separate cartel investigation, affecting the two European bidders..is ongoing in the EU”.

The ‘time gap’ between a ‘EU raid’ and a EU final decision on a cartel investigation can be of several years.  In the “Bathroom Equipment”  cartel investigation, the companies were dawn raided in November 2004, the EU sent the Statement of Objections to the companies in March 2007, and the final decision on the existence of the cartel was adopted by the EU in June 2010 (more than five years after the initial EU raid).

The EU’s investigation on truck manufacturers under Articles 101 and 102 of the TFEU started in January 2011 and we should not expect a final decision on the case until at least 2013.
In the meantime the EU’s review of Volkswagen bid for MAN under the ECMR which we anticipate will formally start within the next few months will be subject to strict and tight deadlines set out by the ECMR for the EU to take a decision on whether to allow the deal to go ahead.

On the EU antitrust implications  of Volkswagen/MAN see Merger Antitrust Review

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