On April 8, 2019, the Commission fined General Electric (“GE”) €52 million for providing incorrect information during its 2017 investigation of GE’s acquisition of Danish wind turbine blade manufacturer LM Wind Power Holdings A/S (“LM Wind”). The Commission learned of the incorrect information through a third party, well in advance of the regulator’s unconditional approval of the acquisition, which was therefore not affected by it. This fining decision is the latest highlight in the Commission’s continued effort to clamp down on procedural infringements and, as Commissioner Vestager made clear, “is proof that the Commission takes breaches of the obligation for companies to provide [the Commission] with correct information very seriously.”[1]


On January 11, 2017, after several months of pre-notification discussions, GE notified its then-proposed acquisition of LM Wind to the Commission. In the context of the Commission’s assessment of GE’s pipeline products on the wind turbine market, GE had erroneously stated that—beyond its existing 6 megawatt turbine—it did not have any high power output wind turbine for offshore applications in development. The Commission subsequently learned through a third party response to its market investigation that GE was offering a 12 megawatt offshore wind turbine to potential customers. When confronted with this information, GE withdrew its notification on February 2, 2017 and re-notified the deal on February 13, 2017, in which it disclosed the existence of the additional turbine product.

The Commission approved the transaction unconditionally in Phase 1 on March 20, 2017. On July 6, 2017, the Commission issued a Statement of Objections (“SO”) to GE, in which it took the preliminary view that GE had provided “incorrect or misleading information” in violation of its procedural obligations under the EUMR.[2]

The Fine

In setting the level of a fine, the Commission must take into account the nature, gravity, and duration of the infringement. In the present case, the Commission reasoned that GE had committed a serious infringement by “negligently providing incorrect information” (dropping “misleading” from its earlier characterization of the conduct). The Commission explained that GE “should have been aware of the relevance of the information” as it had engaged with the Commission on the subject of pipeline products throughout pre-notification. While clarifying that the decision to approve the transaction would be unaffected by the procedural infringement because it had been based on the full set of facts, the Commission had noted at the SO stage that the missing information had consequences not only for the assessment in this case but also for its parallel assessment of Siemens/ Gamesa.[3] Against these facts, the Commission fined GE €52 million, which it deemed “deterrent and appropriate.” The fine—while high in absolute terms—amounts to less than 0.05% of GE’s worldwide turnover in 2018, which remains at the lower end of the legal maximum in this case of approx. €1 billion (i.e., 1% of annual worldwide revenues).

Incidentally, this is not the first time the Commission has taken issue with GE’s conduct during merger control proceedings. In the context of its review of GE/Alstom (Power Business), the Commission discovered that GE had carried out a “wide ranging and carefully planned” customer outreach program in which GE allegedly sought to influence customers’ responses to the market investigation questionnaires and overall views about the transaction, which reportedly resulted in a number of customers adjusting their feedback to the Commission in GE’s favor.[4] The Commission did not impose a fine but instead explained in its decision that it generally discounted those customers’ favorable views in its assessment. It is conceivable, but entirely speculative, that this past conduct played a role in the Commission’s decision to prosecute GE.

Enforcement Context

The fine imposed on GE follows the €110 million fine imposed on Facebook in 2017 for providing “incorrect or misleading” information to the Commission during the review of Facebook/ WhatsApp.[5] Prior to the Facebook decision, the largest fine imposed by the Commission for providing incorrect or misleading information amounted to only €90,000.[6] In 2004, the EU Merger Regulation (“EUMR”) was revised, inter alia, to increase the level of fines that could be imposed from a maximum of €50,000 to 1% of a company’s global revenues. While GE and Facebook are currently the only two companies that have been fined for providing incorrect or misleading information to the Commission under the 2004 EUMR, further enforcement is on the horizon. Merck and Sigma-Aldrich received the SO on the same day as GE in July 2017 for allegedly providing misleading or incorrect information to the Commission during the course of its review of Merck’s acquisition of Sigma-Aldrich,[7] and a fining decision is expected to be forthcoming soon.

A similar recent uptick in enforcement of procedural violations can be detected in the area of gun-jumping (i.e., violations of the stand-still obligation), for which the Commission fined Marine Harvest €20 million in 2014,[8] Altice €124.5 million in 2018,[9] and issued an SO to Canon in relation to the acquisition of Toshiba Medical Systems as reported in our November 2018 newsletter.

The exact methodology used by the Commission in calculating a fine for an infringement of a procedural rule in a merger case remains unclear. In particular, while the Commission will take into account the nature and gravity of the infringement, the weight of these factors, as well as the base amount (such as the “affected turnover” in a cartel case), is unknown. The €110 million fine levied on Facebook comprised two fines of €55 million (0.22% of total turnover) for providing incorrect or misleading information in two separate submissions, which is close to the €52 million (0.05% of total turnover) imposed on GE for a single infringement. Similarly, in the context of gun-jumping (where the legal maximum is capped at 10%), the €124.5 million fine levied on Altice comprised two fines of €62.25 million each (0.27% of total turnover) for two separate infringements (i.e., for failing to notify the transaction contrary to Article 4(1) EUMR and for violating the stand-still obligation under Article 7(1) EUMR).[10] The lower fine of €20 imposed on Marine Harvest in 2014 for gun-jumping consisted of two fines of €10 million (0.41% of total turnover) for two separate infringements.[11]


The fine imposed on GE underlines the Commission’s increased determination to enforce its procedural rules vigorously and to discipline companies that infringe them by imposing significant fines. Merging parties will need to exercise even greater care in ensuring that information and data provided to the Commission in the context of merger control proceedings are correct and complete. This may prove particularly challenging in those increasingly common cases where the Commission sends lengthy information requests and/or requires the production of large volumes of internal documents under tight deadlines. In fact, the risk of detection of incomplete or incorrect information increases with the Commission gaining access to ever larger volumes of internal documents. It is equally all the more unclear whether a disclaimer by the merging parties in submissions to the Commission that information is being provided “to the best of the parties’ knowledge” (or similar) would provide any protection against fines.

[1]      Commission Press Release IP/19/2049, “Mergers: Commission fines General Electric €52 million for providing incorrect information in LM Wind takeover,” April 8, 2019.

[2]      Commission Press Release IP/17/1924, “Mergers: Commission alleges Merck and Sigma-Aldrich, General Electric, and Canon breached EU merger procedural rules,” July 6, 2017.

[3]      Ibid.

[4]      General Electric/Alstom (Thermal Power – Renewable Power & Grid Business) (Case COMP/M.7278), Commission decision of September 8, 2015, para. 36.

[5]      Facebook/WhatsApp (Case COMP/M.8228), Commission decision of May 17, 2017.

[6]      Tetra Laval/Sidel (Case COMP/M.3255), Commission decision of July 7, 2004. Tetra Laval was fined €90,000 under the old EU Merger Regulation, which capped the level of fine at €50,000, for two separate infringements (€45,000 each), i.e., for supplying incorrect or misleading information in the notification and in response to an information request.

[7]      Commission Press Release IP/17/1924, “Mergers: Commission alleges Merck and Sigma-Aldrich, General Electric, and Canon breached EU merger procedural rules,” July 6, 2017.

[8]      Marine Harvest/Morpol (Case COMP/M.7184), Commission decision of July 23, 2014.

[9]      Commission Press Release IP/18/3522, “Mergers: Commission fines Altice €125 million for breaching EU rules and controlling PT Portugal before obtaining merger approval,” April 24, 2018.

[10]    Altice/PT Portugal (Case COMP/M.7993), Commission decision of April 24, 2018.

[11]    Marine Harvest/Morpol (Case COMP/M.7184), Commission decision of July 23, 2014.