Merger control is not only about whether a transaction raises competition concerns. Increasingly, it is also about how parties conduct themselves during the review process. The European Commission’s latest decision against Kingspan provides another reminder that inaccurate information supplied during a merger investigation can become a costly infringement, even where the underlying transaction is ultimately abandoned.
From a merger investigation to a separate infringement
Kingspan notified its proposed acquisition of Trimo in March 2021. Both companies produce and distribute mineral fibre sandwich panels used in industrial and commercial buildings. The Commission opened an in-depth Phase II investigation in April 2021 and subsequently raised concerns that the transaction could lead to higher prices, lower quality or less choice in certain building materials markets. The parties abandoned the transaction in April 2022.
But that did not end the matter.
In November 2022, the Commission opened a separate investigation into the information Kingspan had provided in the notification itself as well as in responses to requests for information during the merger review. What specifically triggered the Commission’s investigation is to date not public. After initially raising six objections, and subsequently dropping two of them, the Commission ultimately identified four separate infringements.
The Commission found that Kingspan had, at least negligently, provided:
- misleading information on penetration rates, in particular concerning how Kingspan tracked the penetration of mineral fibre sandwich panels;
- incorrect and/or misleading information on bidding data, including the availability of records showing bids won and lost;
- incorrect information concerning the involvement of board members, including their involvement in the Trimo transaction, other potential acquisitions, industry trends and business strategy; and
- incorrect and/or misleading information regarding R&D activities relating to mineral fibre sandwich panels.
According to the Commission, the infringements were serious because they obstructed the investigation and made it more difficult to assess the transaction properly. The regulator imposed a separate EUR 10 million fine for each infringement, resulting in a total penalty of EUR 40 million.
Kingspan is not the first – and will probably may also not be the last
The Commission has imposed fines for inaccurate information in merger reviews before. In Facebook/WhatsApp in 2017, it imposed a record EUR 110 million fine after Facebook had provided incorrect or misleading information regarding the technical possibility of automatically matching Facebook and WhatsApp user accounts. In GE/LM Wind in 2019, General Electric was fined EUR 52 million for providing incorrect information concerning its offshore wind turbine development. And in Merck/Sigma-Aldrich in 2021, Sigma-Aldrich received a EUR 7.5 million fine for providing incorrect or misleading information relating to an innovation project. Kingspan therefore becomes the fourth company fined under the EUMR for this type of conduct.
What distinguishes the Kingspan case from the other cases is the breadth of the incorrect and/or misleading information concerned. The findings span market metrics, bidding data, internal governance and strategy, and R&D.
A broader enforcement trend
The Kingspan case also comes shortly after a striking example from the other side of the Atlantic.
As previously discussed here , in August 2026, KKR agreed to pay USD 250 million to settle allegations brought by the U.S. Department of Justice (DOJ) concerning repeated violations of the U.S. pre-merger notification regime in relation to at least sixteen transactions between 2021 and 2022. The DOJ’s allegations included the submission of internal documents that had been modified before filing, the omission of documents required, and failures to make required filings in certain transactions.
KKR is also facing trouble in the EU: In July 2025, the Commission opened a formal investigation into whether KKR provided incorrect or misleading information during the review of its acquisition of NetCo, which the Commission had cleared unconditionally in May 2024. The investigation concerns information about long-term access agreements that were allegedly relevant to the Commission’s competitive assessment.
While the legal frameworks are different, the practical message is remarkably similar: Merger control compliance includes information governance. Regulators expect companies to ensure that the information and documents supplied are accurate, complete and reliable.
Lessons learned
Taken together, the cases offer lessons for managing information risks throughout a merger review process:
- Do not “clean up” internal documents for regulatory submissions. Responsive documents should be preserved and produced in their original form. Removing passages, changing wording or recreating a presentation can alter context and create the impression that evidence has been manipulated; any necessary redactions or explanatory annotations should instead be made transparent.
- Verify negative statements particularly carefully. Statements that certain data or documents do not exist, or cannot be provided, should be checked with the relevant business and IT functions before being submitted. For example, an operational team may not maintain a formal “win/loss database”, while equivalent information can still be reconstructed from internal data, quotation tools or archived spreadsheets. Parties should map not only central systems, but also local repositories, legacy databases and materials held by individual business units, and determine who can explain the scope and limitations of each source.
- Reassess earlier answers as the investigation develops. If new information casts doubt on a previous submission, the issue should be escalated and corrected promptly. This requires an active process for comparing new responses to requests for information, interview findings and document productions against statements already made, rather than treating each submission as a stand-alone exercise.
- Deliberate deception is not required: Negligence may be sufficient. Companies may face fines where they fail to exercise appropriate care in collecting, checking or presenting information. A weak verification process, an unjustified assumption or an incomplete internal search can therefore create exposure even without an intention to mislead.
- Even an abandoned deal may leave a very real regulatory bill behind. Withdrawal of a transaction does not terminate the Commission’s power to investigate procedural infringements. Parties should therefore preserve records and manage residual enforcement risk even after a deal has fallen apart.
Photo by Foto Jakub Żerdzicki on Unsplash
