The European Commission has raised a formal objection to Merck KGaA’s $17 billion acquisition of Sigma-Aldrich—a deal completed in November 2015—saying the companies breached the European Union’s merger rules by providing incorrect or misleading information.
The Commission acknowledged that its Statement of Objections will not affect its earlier approval of the companies’ merger, which will remain effective. The deal was announced in 2014 and won Commission approval the following year, conditioned in part on Sigma-Aldrich selling off its laboratory research chemicals business to Honeywell.
However, if the Commission finds that Merck and Sigma-Aldrich intentionally or negligently supplied incorrect or misleading information, it could impose a fine of up to 1% of the companies' annual worldwide revenue. Merck finished last year with €15.024 billion ($17.1 billion) in net sales, up 17% from 2015, largely reflecting the acquisition of Sigma-Aldrich.
On Thursday, the Commission formally accused Merck and Sigma-Aldrich of failing to provide it with important information about an “innovation project with relevance for certain laboratory chemicals” tied to the sold business. Merck has said it was a packaging technology being developed by Sigma-Aldrich—a technology that the Commission said would have had to have been sold as part of the lab research chemicals business.
Once the Commission got wind of the project a year later through a third party it did not name, Merck licensed the technology to Honeywell.
“This means that Honeywell now has the technology it should have received with the divested business. However, this happened almost one year after our decision and only because the Commission was made aware of the issue by a third party,” Margrethe Vestager, the European Commission’s commissioner in charge of competition policy, said in a statement.
Added the Commission, in a separate statement: “The innovation at stake was closely linked to the divested business and had the potential to substantially increase its sales. By not including it, the viability and competitiveness of the divested business was impaired,” the Commission said in a statement.
Merck: Response ‘In Due Course’
Merck has confirmed receipt of the Commissions’s Statement of Objections, and said it would not comment beyond a statement in which it said it will respond to the Commission “in due course.”
“Merck KGaA, Darmstadt, Germany, has acted in good faith since the antitrust process has begun, and it is committed to a constructive dialogue with the Commission,” the company stated, adding that it was “confident this issue will be resolved in a satisfactory manner.”
The Commission has already flexed muscle against corporate giants: In May, it fined Facebook €110 million ($125.3 million) after the social media giant combined its data with that of messaging app WhatsApp, which it acquired for $19 billion in 2014. Though Facebook told the Commission it couldn’t establish reliable automated matching between the two companies' user accounts, the Commission concluded that Facebook staff knew it had the ability to do so.
Facebook said it acted in good faith, its errors were unintentional, and its fine was lowered after cooperating with the Commission.
The Commission also issued formal objections to Canon’s acquiring Toshiba Medical Systems, the medical equipment unit of Toshiba, for $5.9 billion, saying Canon went ahead before notifying, and winning approval from, the Commission. The Commission also objected to General Electric’s €1.5 billion ($1.7 billion) purchase of LM Wind, a manufacturer of rotor blades for the wind energy industry—a deal approved by the Commission in March—saying that GE failed to provide information about its R&D activities and the development of a specific product.
Canon has said it would respond to the Commission “in due course” while GE has stated that it had “no intent to mislead” and acted in good faith.