CGATES FINED FOR SUBMITTING INCORRECT AND INCOMPLETE INFORMATION IN MERGER REVIEW PROCESS

The Lithuanian competition authority Konkurencijos taryba found that information provided by the Lithuanian telecommunications service provider Cgates, which was necessary for the authority to be able to assess the potential impact of the merger on competition, was incorrect and incomplete. Such infringement of the Law on Competition resulted in EUR 215,100 fine on the company.

On 24 January 2019 Cgates notified Konkurencijos taryba of the intended acquisition of 100 per cent of the shares of its competitor SPLIUS. When assessing the information provided, the authority’s experts had grounds to suspect that Cgates provided incorrect and incomplete information both in the merger notification and during the merger review process that followed. On that basis, on 6 June 2019 Konkurencijos taryba launched an investigation into a suspected infringement of the Law on Competition.

The officials of Konkurencijos taryba inspected the company's premises and found not only the documents which Cgates failed to submit, but also the evidence proving that the firm had previously provided incorrect information to the authority. For example, it was found that significantly lower market shares of the merging parties were indicated in the merger notification, as compared to the internal documents found during the inspection.

In addition, presentations addressed to the company’s investors and the board contained comprehensive information on consistent business plans of Cgates, i. e. not only a detailed analysis of the current situation, but also clear next steps, opportunities, and other information that the authority had not received even after repeated requests.

The investigation showed that Cgates provided incorrect and incomplete information also with respect to other aspects of the merger review, essential to properly define the market, assess the company's pricing, likely changes in the markets concerned, strategic and economic rationale of the merger, etc.

Šarūnas Keserauskas, the Chairman of Konkurencijos taryba, notes that the Law on Competition obliges the merging parties not only to notify the intended transaction to the authority, but also to provide correct and complete information based on which the experts could conduct a detailed assessment of the potential effects of a merger on competition and consumers.  

“The deadlines in the merger review proceedings are short, while the assessment of a merger itself is a complex process involving a detailed analysis of various circumstances, such as the activities of the parties to the transaction. It is therefore essential that our experts have correct and complete information from the outset. Accordingly, the actions of Cgates constitute a particularly serious infringement”, said Š. Keserauskas.

The European Commission also emphasises the merging parties’ obligation to provide correct and non-misleading information in merger investigations. In particular, incorrect or misleading information poses a risk that important aspects of the transaction will not be assessed, which may lead to the adoption of a flawed final decision.

The decision of Konkurencijos taryba may be appealed to Vilnius Regional Administrative Court within one month of the date on which the merging parties receive the decision or it is published on the authority's website.

Konkurencijos taryba reminds that in July 2019 Cgates asked to terminate the merger examination procedure after receiving preliminary findings that the intended acquisition of SPLIUS would significantly restrict competition in the relevant markets in Šiauliai City.

In December 2020 Cgates submitted a new merger notification asking to clear the acquisition of 100 per cent of the shares of SPLIUS subject to commitments. However, Konkurencijos taryba refused to clear the transaction having found that the proposed commitments would not eliminate the identified competition concerns.