KKR and the Threshold for Revoking Merger Clearance

The European Commission (the “Commission”) cleared KKR’s acquisition of NetCo without conditions on 30 May 2024. Its Statement of Objections of 19 October 2026 now questions information supplied about the wholesale access agreements which helped secure that clearance.1The possible consequences extend beyond a fine. What must the Commission establish before an inaccurate submission can justify revoking the approval of a completed transaction?

What the Clearance Relied On

NetCo comprises Telecom Italia’s fixed network business and FiberCop. During the merger review, third-party operators raised concerns about continued access to FiberCop’s infrastructure. The Commission relied on long-term access agreements, together with KKR’s explanations and letters to contractual counterparties, when assessing those concerns.

The clearance decision shows how much those agreements mattered. In paragraph 136, the Commission concluded that existing contractual terms would remain applicable unless the counterparties mutually agreed to amend them. For the access covered by those agreements, paragraph 137 then dispensed with examining incentives to foreclose or the effects of foreclosure because it considered NetCo unable to pursue that strategy.2

The current objections concern the accuracy of information about those contractual terms provided in replies to requests under Article 11(2) of the EU Merger Regulation (EUMR). The Commission’s preliminary view is that KKR supplied incorrect or misleading information at least negligently. The objections remain open to challenge and do not revoke the clearance.

The Additional Finding Needed for Revocation

Article 14(1)(b) EUMR permits a fine of up to 1% of aggregate annual worldwide turnover for intentionally or negligently supplying incorrect or misleading information in response to an Article 11(2) request. It does not require proof that accurate information would have produced a different merger decision.3

The Commission’s 2017 Facebook/WhatsApp fining decision (M.8228) illustrates the point. Facebook received fines totalling EUR 110 million for incorrect or misleading information about matching users across the two services. The Commission expressly recorded that the information had not affected the outcome of its 2014 clearance decision (M.7217). A serious information infringement can therefore coexist with a valid clearance.4

Revocation under Article 6(3)(a) requires a further connection. The decision must be based on incorrect information for which an undertaking is responsible, or have been obtained by deceit. The Court of First Instance recognised this power alongside the parties’ disclosure obligations in NVV and Others v Commission, paragraph 185.5The question in KKR is how the disputed information affected the basis for clearing the transaction.

In my view, the words ‘based on’ should require the Commission to explain which material premise was wrong and why correcting it calls the clearance into question. The presence of an inaccurate statement somewhere in the file should not suffice. Where the decision contains several grounds for excluding a concern, that explanation should also address whether the remaining grounds independently sustain the assessment.

For a Phase I clearance, I would frame that inquiry around the exclusion of serious doubts. If the Commission stopped its foreclosure analysis because it understood a contract to prevent deterioration of access, an incorrect account of that protection may justify examining the transaction again. Requiring proof that the merger would ultimately have been prohibited would set the threshold too high: the missing inquiry may be precisely what a renewed review needs to resolve. Article 6(4) expressly permits a fresh decision following revocation.6

What Alleged Price Increases Can Establish

Complaints about price increases after the transaction prompted the investigation.7Evidence of such conduct can help test an earlier description of contractual constraints. It does not, by itself, establish what was inaccurate when the information was supplied.

A price increase might reflect a previously undisclosed adjustment clause, a subsequent agreement with the customer, or conduct contrary to an enforceable contract. Those possibilities have different implications for the accuracy of the original submission. A representation about existing contractual rights also differs from an assurance about how a right will be exercised. The latter requires attention to its meaning and legal effect, and to what supported it when it was given.

That distinction matters in KKR because the clearance discussed both the agreements and KKR’s assurances about their continued application, including a disputed termination right. It also treated KKR’s letters as binding under Italian law (footnote 146).8Any decision finding an infringement should identify the particular representation found inaccurate or misleading and connect the evidence to it. Any fine would also require a finding of intent or negligence.

An answer that says a contract makes foreclosure impossible may decide where a merger investigation stops. Advisers should make clear whether that answer rests on a legal restriction or an assurance about future conduct. Any decision to revoke the clearance should be equally precise about the error and how it affected the Commission’s reasoning.

The views expressed are the author’s own and do not represent the position of any institution or authority.

• 1European Commission, press release IP/26/2178, 19 October 2026.
• 2Case M.11386 – KKR / NetCo, decision of 30 May 2024, C(2024) 3784 final, paras 131–137.
• 3Council Regulation (EC) No 139/2004 (EUMR), Articles 11(2) and 14(1)(b).
• 4Case M.8228 – Facebook/WhatsApp (Art. 14(1) proc.), Commission Decision C(2017) 3192 final of 17 May 2017, recitals 14 and 100 and Articles 3–4. The original clearance was adopted on 3 October 2014 in Case M.7217 – Facebook/WhatsApp.
• 5Regulation (EC) No 139/2004, Article 6(3)(a); judgment of 7 May 2009, NVV and Others v Commission, T-151/05, EU:T:2009:144, para 185.
• 6Regulation (EC) No 139/2004, Article 6(4).
• 7European Commission, press release IP/26/2178, 19 October 2026.
• 8Case M.11386 – KKR / NetCo, decision of 30 May 2024, paras 131–132 and footnote 146.