Risk minimization measures regarding merger-related exchange of infor-mation under EU competition law

Abstract

This article investigates EU competition law aspects of information exchange in the course of mergers. The exchange of information between the parties, which regularly occurs in the course of transfer of a business, is deemed to be necessary for an accurate assessment and evaluation of the target company, but at the same time represents a challenge under EU competition law provisions for the parties involved. In practice, it is difficult to rely on clear, uniform rules which standardize the extent to which such an exchange of information ap-pears to be within the permissible framework of antitrust regulations or (whether it) already violates such regulations. The aim of this paper is to identify suitable instruments for the reducing of antitrust risks in the exchange of information between competitors within the basis of the legal framework of EU competition law. To this end, specific recommendations as legal measures are set out in the form of contractual and organizational measures for regulating the exchange of information in the context of mergers.

Keywords

• prohibition on cartels
• competitively sensitive information
• merger-related exchange of information
• non-disclosure agreement
• clean-team agreement
• virtual data room