What are the penalties for incomplete or misleading information in the notification or in response to the authority’s questions?
Merger Control (4th edition)
Undertakings which provide intentionally or negligently incorrect or misleading information in a notification may upon application by the official parties be fined by the Cartel Court up to 1% of their (group’s) total turnover in the preceding business year.
Information is incorrect or incomplete in case that it gives a distorted picture of reality in significant aspects. Significant aspects concern the minimum requirements regarding the content which notifications have to comply with. According to jurisprudence, in case of minor fault and insignificant consequences, the imposition of a fine can be refrained from if the fine is not deemed necessary on special or general preventive grounds.
In a recent case, the Cartel Court fined an undertaking with EUR 50,000 for failure to provide the (relevant) identity of two of three executives.
Where the parties participating in the concentration deliberately conceals important information, refuses to provide relevant materials and information, or provides false materials and information, SAMR may refuse to initiate review or revoke the decision to initiate review that has been made. In addition, SAMR may impose a fine of not more than CNY 200 thousand on the entity concerned and a fine of not more than CNY 20 thousand on individual concerned; and in serious circumstances, SAMR may impose a fine of not less than CNY 200 thousand but not more than CNY 1 million on the entity concerned and a fine of not less than CNY 20 thousand but not more than CNY 100 thousand on the individual concerned. If a crime is constituted, criminal liability shall be investigated for in accordance with law.
A fine of up to €50,000 may be imposed for a failure to provide requested information, or for providing misleading or inaccurate information.
If the parties provide insufficient information, the DCCA will usually grant the parties a deadline to submit the relevant information.
If the parties deliberately provide incomplete or misleading information, or fail to comply with an obligation to submit a full-form notification, this may result in the rejection of the notification and the imposition of a fine upon the parties.
Furthermore, an amendment to the Competition Act entered into force on 1 January 2018, introducing a “stop the clock” provision, under which the DCCA may suspend the time limit for a merger review if the participating undertakings fail to disclose information requested by the DCCA within the set time limit.
Notified and authorized concentrations can be subsequently challenged by the Superintendency or by those with an interest therein in administrative courts on the basis of information and documentation verified by the Superintendency. But only when said resolution has been obtained on the basis of false or incomplete information given by the applicant, without prejudice to the corresponding civil and criminal actions.
In addition, it is considered as a serious infraction to “Submit false or deceitful information to the Superintendence of Market Power Control”, according to article 78 of the Antitrust Law.
The Commission may impose a fine of up to 1% of the aggregated turnover of companies for intentionally or negligently providing incorrect or misleading information to the Commission. This was most recently put into practice in April 2019, when the Commission fined General Electric EUR 52 million for providing incorrect information during the Commission’s investigation of GE’s planned acquisition of LM Wind. In May 2017, the Commission had also fined Facebook €110 million for providing misleading information during the review of its acquisition of WhatsApp.
Pursuant to Article L.430-8 III of the Code, the penalties incurred by the notifying party(ies) for omitting information or providing inaccurate or misleading information are the same as those incurred in case of a failure to notify (see question 32). In addition to this fine, the FCA may also withdraw the clearance decision, in which case the parties are required to re-file a notification form within one month from the withdrawal of the clearance decision, unless they revert to the state which existed prior to the concentration.
The FCO usually doesn’t impose fines in case of incomplete filings if the incompleteness was caused by negligence only. However, incomplete filings lead to extended procedures as the clock does not start to run until the filing is complete. It is much more likely that the FCO will impose fines if information is found to be intentionally misleading or wrong.
Where the parties make material false statements or omit to disclose material facts in the notification, penalties between INR 5 million to INR 10 million (about USD 70,000 to USD 140,000) can be imposed.
The Competition Act provides that where the information contained in a notification is false or misleading in any material respect, or the CCPC is of the opinion that the full details required in the notification (or subsequently specified) have not been provided, the notification is invalid and any determination made by the CCPC on foot of such a notification is void.
Where the CCPC issues an RFI, failure by the parties to whom the RFI is addressed to provide the information required within the period specified by the CCPC is an offence under the Competition Act. An undertaking, or the person in control of an undertaking, convicted of such an offence may be liable on summary conviction to a fine not exceeding €3,000 or, on conviction on indictment, to a fine not exceeding €250,000.
If the failure continues one or more days after the date of its first occurrence, the undertaking or person concerned is guilty of a separate offence for each day that the breach occurs and may be liable on summary conviction to a fine not exceeding €300 or, on conviction on indictment, to a fine not exceeding €25,000.
If the parties received merger clearance based on misleading information, this might constitute the illegal consummation of a merger transaction, subjecting the parties to all of the above mentioned penalties and repercussions, as well as fraud charges.
In addition, if information was officially required according to the Commissioner's legal power to issue requests for information under the Israeli Competition Law, providing incomplete or misleading information may be a separate breach. In this case, administrative fines may be imposed of up to 3% of a company's total sales turnover in the year prior to the violation, up to NIS 8,285,810. For individuals and for companies that in the year prior to the violation had a sales turnover of less than NIS 10 million, the maximum fine is NIS 310,720. This type of breach is also punishable by a criminal sanction of up to a year’s imprisonment and fines. The criminal route is taken where providing misleading information is deemed to have been intentional.
If the details of notification or attached documents are incomplete or misleading, the KFTC may request the party to supplement or correct the information or materials. In such a case, the review period will be suspended until all the sufficient information is submitted.
In addition, for misleading information, the KFTC may impose an administrative fine of up to KRW 100 million.
Competition law stipulates a penalty of up to US$ 777,921.05.00 Dollars (using an exchange rate of MX$19.00 Pesos per US Dollar), for false statements or information, aside from possible criminal sanctions.
An entity found to have supplied, whether intentionally or negligently, incorrect or misleading information to the PCC shall be subject to a fine of up to One Million Pesos (PhP1,000,000.00) in accordance with Section 29 of the PCA.
In cases where false, inaccurate or incomplete information is provided, the notifying party(ies) may be subject to fines of up to 1% of group turnover in the previous year. It is not clear as to whether the turnover concerned is national or worldwide, this decision being left at the discretion of the PCA, according to the features of the case at stake. Over the past few years, the PCA has applied several fines (from €100,000 to €150,000) for these sort of infringements, although not within merger control. Criminal liability may also apply; however, this scenario has never been explored.
Additionally, ex officio investigations may also be initiated by the PCA if it concludes that a clearance decision was adopted based on false, inaccurate or incomplete information provided by the notifying party(ies).
The penalty for incomplete or misleading information is RUB 500,000 for the company (applicant) and up to RUB 20,000 for the company’s general director. In addition, FAS can refuse to approve the transaction.
There are no penalties for misleading information in the notification or in response to the authority’s questions. However, when notifying the SCA of a certain concentration, the parties must formally declare that the information provided in the notification is correct, complete and true.
It shall be noted that the SCA’s review period will only start upon receipt of a complete notification. Furthermore, if the SCA requests additional information from the parties, the clock can be stopped by the SCA until the notifying party provides the required information. The SCA may also couple the request for information with a penalty clause.
If an undertaking fails to comply with an obligation to provide information or to present documents or fails to do so correctly, it will be fined an amount of up to 100'000.- Swiss francs.
Law N° 26876 sanctions with a fine of up to 500 UIT (approx. USD 636 000) when inaccurate data has been provided to the authority.
According to the Bill, Failure to provide the required information or the presentation of incomplete, incorrect, adulterated, misleading or false information are considered very serious infractions, and may be penalized with fines greater than 1000 UIT (approx. USD 1.2 million), up to a maximum of 12% of gross income received by the offender or its economic group the year prior to the issuance of the resolution that decides to impose the fine.
As per Article 10(3) of Communiqué 2010/4 on Mergers and Acquisitions Requiring the Approval of the Competition Board, if any change occurs during the Competition Board's review of a transaction regarding the information submitted in the filing, the parties have a legal duty to inform the board immediately. As a general rule, the parties are obliged to file correct and complete information with the Competition Authority. If the information requested in the notification form is incorrect or incomplete, the notification is deemed to have been filed only on the date when such information is completed following the Competition Board’s request for further data. In addition, the authority will impose a turnover-based monetary fine of 0.1% of the Turkish turnover generated in the financial year preceding the date of the decision (if this is not calculable, the turnover generated in the financial year closest to the date of the decision will be taken into account) on natural persons or legal entities which qualify as an undertaking or an association of undertakings, as well as the members of these associations, in cases where incorrect or misleading information is provided by the undertakings or associations of undertakings in a filed notification.
The penalty for incomplete or misleading information in the notification or in response to the authority’s questions may amount up to 1% of income from turnover of the entity for the last fiscal year; if the entity had no income in the last financial year or if it failed to provide information regarding its financial performance at the request of the AMCU, the fine will amount up to 10000 non-taxable minimum incomes of citizens (UAH 170,000, approximately EUR 5,670)
A certification signed by an officer of the filing party or one of its controlled entities must accompany a notification under the HSR Act stating that the filing is, to the best of his or her knowledge, ‘true, correct, and complete.’ If a filing has certain deficiencies, the antitrust authorities may ‘bounce’ an HSR filing and require that a party correct the deficiency and restart the HSR waiting period when the deficiency has been fixed.
The antitrust agencies have assessed sizable civil penalties (currently, up to $42,530 per day per violation) for failing to produce all required documents with their HSR filings.
In at least one exceptional case, criminal charges were brought for extreme violations in connection with the HSR Act. There, the DOJ pursued criminal obstruction of justice charges against an executive for intentionally altering pre-existing documents to mislead the US antitrust agencies.
Failure to provide the requested information/documents, without a legitimate justification, may result in a fine up to EUR 25,823. Providing false information/documents may result in a fine up to EUR 51,645.
In the event that requested information is delayed, obstructed or denied or the information provided is inaccurate or incomplete, the HCC may impose a fine to the undertakings or their executives of at least EUR fifteen thousand (€ 15,000) up to one (1%) percent of the aggregate turnover of the undertakings concerned.
In addition to the civil sanctions, those that refuse or delay to provide the information requested by the HCC may be subject to a sentence of imprisonment of at least six months, whereas where the person liable is a civil servant or an official of a public law legal entity, the HCC is entitled to refer the matter to the competent supervisory authority for disciplinary proceedings.
The HCC is usually reluctant to proceed with the imposition of penalties for providing incorrect or misleading information in notification proceedings. Nonetheless, in 2003 Carrefour-Marinopoulos was fined 8,804 euros for delaying to provide the information requested (HCC 248/III/2003), while in 2011 the HCC imposed a fine of 20,000 euros and 15,000 euros on two gas-providing companies for delaying to provide the information requested and providing incorrect information respectively (HCC EPA Thessalias / EPA Thessalonikis 516/VI/2011).