In October 2026, Kingspan and KKR found themselves in the spotlight in high-profile cases in which the European Commission (the “Commission”) examined the accuracy of information submitted in the merger control proceedings.
On 8 October 2026, the Commission imposed fines totalling EUR 40 million on Kingspan for supplying incorrect and misleading information during the review of its proposed acquisition of the Slovenian company Trimo. Although the transaction had already been abandoned in 2022, the Commission nevertheless sanctioned Kingspan.[1]
Eleven days later, in a separate case, the Commission sent KKR a Statement of Objections. In the Commission’s preliminary view, during the 2024 review of its acquisition of the NetCo network, KKR allegedly provided incorrect or misleading information on the terms of existing agreements with other operators, on which the Commission relied when clearing the acquisition unconditionally. The Commission has not yet reached a final decision on the infringement.[2]
For acquiring undertakings (buyers), both cases are a clear warning. A merger notification is not a mere formality that can safely be left to the final weeks before closing. Errors made in the notification process can have consequences for years after a transaction has been closed or even abandoned.
When is it necessary to notify or inform of a transaction
An acquisition must be notified where it results in a lasting change of control over another undertaking or part of it and the annual turnover thresholds are exceeded. The mere possibility of exercising decisive influence already constitutes control. Such influence does not arise solely from a majority shareholding but may also result from rights or contracts conferring decisive influence on the composition, voting or decisions of the organs of an undertaking.[3]
In Slovenia, notification is mandatory where, in the preceding financial year, the combined annual turnover of the undertakings concerned, together with the other undertakings in their groups, on the market of the Republic of Slovenia exceeded EUR 35 million and the annual turnover of the target undertaking, together with the other undertakings in its group, on the same market and in the same period exceeded EUR 1 million. Such transactions are, as a rule, reviewed by the Slovenian Competition Protection Agency (the “CPA”), whereas concentrations with an EU dimension are reviewed by the Commission.[4]
Under the ZPOmK-2, a notification must be filed before the concentration is implemented and no later than 30 days after the conclusion of the agreement, the announcement of a public bid or the acquisition of control, whichever occurs first. Until the CPA issues a decision declaring the concentration compatible, the undertakings, as a rule, may not exercise the rights and obligations arising from the concentration. The EU Merger Regulation does not set a deadline for notification; however, as a rule, a concentration may not be implemented before it has been notified to and cleared by the Commission. Breaches of these prohibitions (so-called gun jumping) are subject to heavy fines (of up to 10% of the infringer’s annual turnover).[5] We have already written about this issue.
Even where the turnover thresholds are not exceeded, the undertakings concerned must inform the CPA of the concentration within 30 days of the conclusion of the agreement, the announcement of a public bid or the acquisition of control (whichever occurs first) if, together with the other undertakings in their groups, they hold a market share of more than 60% on the relevant market in Slovenia. Within 25 working days of receiving that information, the CPA may call on the undertakings concerned to notify the concentration. The notification must be filed within 30 days of service of that request, and the undertakings must cease implementing the concentration as soon as the request is served.[6]
Supply of incorrect information is a standalone infringement
The CPA and the Commission assess concentrations primarily on the basis of information submitted by the parties. This information includes market shares, lists of competitors, bidding data and internal documents. As both authorities rely to a considerable extent on this information, the submission of incorrect or misleading information is sanctioned as a separate infringement. For such conduct, the Commission may impose a fine of up to 1% of the undertaking’s aggregate worldwide turnover, and the CPA an administrative sanction of up to 1% of the undertaking’s annual turnover, in both cases based on turnover in the preceding financial year. Negligence alone is sufficient for a sanction to be imposed.[7] The Kingspan case shows that the infringement may be sanctioned even where the transaction was ultimately not implemented and the Commission never adopted a final decision.
The submission of incorrect or misleading information may also lead to a reassessment of a transaction that has already been cleared. The Commission may revoke a clearance decision where it is based on incorrect information for which one of the parties is responsible. Where a decision declaring a concentration compatible is based on incorrect, incomplete or misleading information, the CPA may annul it within three years of its issue or service and decide on the concentration anew.[8] Such a reassessment is particularly risky for the undertakings concerned where the transaction has already been implemented.
Other national competition authorities also pay close attention to the accuracy of information in merger notifications. In 2024, the Spanish competition authority (CNMC) imposed two fines totalling EUR 13 million on Rheinmetall, inter alia for failing to identify all affected markets in its notification.[9] In 2026, at the request of the Austrian competition authority (BWB), the Austrian Cartel Court imposed a fine because the notification had failed to disclose that, through the acquisition, the acquirer would also obtain a minority shareholding in a competitor.[10]
How to manage the risk
Timely, comprehensive and accurate preparation of the notification significantly reduces the risk of delays, sanctions and the reassessment of a transaction that has already been cleared.
It is therefore essential for undertakings to start preparing the notification early. Before the notification is drafted, all relevant information must be gathered, which first requires establishing what data the undertaking actually holds, who maintains it and where it is stored. In addition to transaction and competition law advisers, the employees who maintain the data and can ensure its accuracy should actively participate in the notification process.
Every statement in the notification must also be checked against internal documents and materials, and any discrepancies must be resolved. This applies to all information provided by the undertaking, as well as to statements that certain information does not exist or is not available to the undertaking. It was precisely such statements that were among the Commission’s central objections in the Kingspan case. If an undertaking discovers that information in the notification is incorrect, it is advisable to inform the authority reviewing the notification accordingly.
The Kingspan and KKR cases show that the Commission takes a strict approach to the submission of incorrect or misleading information and that even a subsequent withdrawal from the transaction does not relieve an undertaking of liability for its conduct in the merger control proceedings.
[1] European Commission, press release IP/26/2084 of 8 October 2026, Commission fines Kingspan €40 million for providing incorrect and misleading information during merger investigation.
[2] European Commission, press release IP/26/2178 of 19 October 2026, Commission sends Statement of Objections to KKR for providing incorrect or misleading information during merger investigation.
[3] Article 9(1) and (2) of the Prevention of Restriction of Competition Act (Zakon o preprečevanju omejevanja konkurence; Official Gazette of the Republic of Slovenia, No. 130/22, as amended; the “ZPOmK-2”); Article 3(1)(b) and (2) of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (OJ L 24, 29 January 2004, p. 1; the “EU Merger Regulation”).
[4] Article 66(1) and (2) of the ZPOmK-2 and Article 1(2) and (3) of the EU Merger Regulation; for exceptions resulting from referrals, see Articles 4(4) and (5), 9(2) and (3) and 22(1) and (3) of that Regulation.
[5] Articles 67(1) and 68(1), (4) and (5) and the first and second indents of Article 85(2) of the ZPOmK-2; Articles 4(1), 7(1) to (3) and 14(2)(a) and (b) of the EU Merger Regulation.
[6] Articles 66(3), 67(4) and 68(2) of the ZPOmK-2.
[7] Articles 5(1) and (4) and 14(1)(a) to (c) of the EU Merger Regulation; the first, second and seventh indents of Article 85(3) of the ZPOmK-2.
[8] Articles 6(3)(a) and 8(6)(a) of the EU Merger Regulation; the first indent of Article 76(1) and Article 76(2) of the ZPOmK-2.
[9] CNMC, decision SNC/DC/081/23, Rheinmetall, of 30 April 2024, paragraph 105 and points I and II of the operative part.
[10] BWB, press release of 11 September 2026, Kartellgericht verhängt auf Antrag der BWB Geldbuße iHv EUR 65.000 gegen Messezentrum Salzburg GmbH. According to the BWB, the decision is final.
