The NetCo clearance and the Commission’s objections

KKR notified its acquisition of sole control over NetCo, which includes FiberCop, on 19 April 2024. The Commission examined the transaction's impact on the market for wholesale broadband access services in Italy. Third-party operators expressed concerns that FiberCop could restrict access to passive services (i.e. infrastructure) after the transaction, which led the Commission to raise serious doubts about the transaction.

According to the Commission’s press release, KKR stated that FiberCop’s existing long-term wholesale access agreements with third-party operators would remain in place, that KKR could not deteriorate access conditions or terminate access, and that the terms could only be changed by mutual agreement. Relying on those statements, the Commission cleared the deal unconditionally in Phase I on 30 May 2024, stating it relied on KKR’s submissions regarding the agreements in question.

Following complaints from third-party operators that FiberCop had since unilaterally raised the prices they paid under the existing agreements, the Commission opened a formal investigation on 24 July 2025. According to the SO, the Commission’s preliminary view is that KKR, at least negligently, submitted incorrect and/or misleading information on the terms of those agreements, information which, according to the Commission, was key to its 2024 assessment and approval of the merger. The SO does not prejudge the outcome. KKR has stated that it strongly disagrees with the Commission's preliminary assessment, stands by the accuracy of its 2024 submissions and will contest the allegations, noting that the 2024 clearance remains valid.

The legal framework: a duty to supply correct information

By way of background, to carry out its duties under the EUMR, the Commission may, by simple request or decision, require undertakings to provide all necessary information. Under Article 14(1)(b) EUMR, the Commission may fine a company up to 1% of its aggregate turnover where it intentionally or negligently supplies incorrect or misleading information in response to a request made pursuant to Article 11(2) EUMR. Incorrect or misleading information in the notification itself falls under Article 14(1)(a) EUMR, and incorrect, incomplete or misleading information supplied in reply to a request by decision under Article 11(3) EUMR falls under Article 14(1)(c) EUMR. Where information is supplied on a company's behalf by an authorised representative, the company itself remains fully responsible if that information is incomplete, incorrect or misleading (Article 11(4) EUMR). Article 6(3)(a) EUMR also allows the Commission to revoke a clearance decision where it is based on incorrect information for which one of the merging parties is responsible, or where the decision was obtained by deceit. Revocation does not in itself unwind a transaction. It reopens the review and dissolution could in this scenario only be ordered under Article 8(4) EUMR if that review ended in a finding of incompatibility. Revocation on this ground has occurred only once, in Sanofi/Synthélabo (1999), and the Commission has not indicated that it is considering revocation in this case. Still, the possibility of reopening the review of a transaction that closed and was integrated years ago creates significant legal uncertainty for the acquirer.

Earlier precedents

KKR's case follows four earlier fines for this infringement under the current EUMR. Most recently, on 8 October 2026, the Commission fined Kingspan EUR 40 million for providing incorrect and misleading information during its 2021 review of Kingspan's acquisition of Trimo, a deal Kingspan ultimately abandoned. After a Statement of Objections, a Supplementary SO, and the withdrawal of two of six original objections, the Commission found four distinct infringements: misleading information on how Kingspan tracked penetration rates, incorrect or misleading information on the availability of bidding data, incorrect information on board members' involvement in the deal and other strategic matters, and incorrect or misleading information on Kingspan's R&D. The Commission fined Kingspan EUR 10 million per infringement, finding the conduct at least negligent because Kingspan "could not have been unaware of its obligations" and had, in some instances, asserted that key documents did not exist. Kingspan has announced to appeal the decision.

Perhaps the best-known precedent in which a company was fined for not providing correct information is Facebook, which was fined EUR 110 million in May 2017 for stating to the Commission during its review of the WhatsApp acquisition that it could not match WhatsApp and Facebook user accounts, only to do exactly that. Then-Commissioner Margrethe Vestager called the fine a "clear signal" that companies must comply with all aspects of the EU merger rules, including the obligation to provide correct information, while stressing that the clearance decision itself remained unaffected. In April 2019, the Commission fined General Electric EUR 52 million for incorrect information in its notification of the LM Wind acquisition, and, in May 2021, it also fined Sigma-Aldrich EUR 7.5 million in connection with its acquisition by Merck. Fines for incorrect information were also imposed under the previous Merger Regulation (Regulation 4064/89).

What sets the KKR case apart

Unlike Kingspan's four separate misrepresentations, the KKR case centres around a single issue: the terms of FiberCop's existing wholesale access agreements. What stands out is the type of statement in question. Facebook and GE concerned facts that already existed when the information was given, namely technical capabilities and product development plans. According to Executive Vice-President Teresa Ribera, KKR ‘appears to have provided incorrect or misleading information about whether it would keep its existing long-term access agreements under the same terms unless mutually agreed otherwise with the third-party operators’, while the Commission's evidence suggests that ‘after the merger, KKR may have raised prices for existing wholesale broadband customers, in some cases significantly’. Article 14(1)(b) EUMR concerns the information as supplied. The price increases after closing do not constitute the infringement, but rather evidence that the information was incorrect at the moment it was given. How the Commission assesses statements about the future performance of existing contracts remains to be seen.

Practical takeaways for notifying parties

The duty of accuracy applies to the notification and to every subsequent reply to requests for information, including assurances given to alleviate competition concerns. Negligence in providing accurate information may be enough for the Commission to open proceedings. This case adds two points of consideration. An informal assurance about how contracts will operate after closing is not a commitment per se, but it may still lead to a fine if the statement was inaccurate when given. Any statement given to the Commission about contractual terms should be checked against the contracts themselves, including amendment and termination clauses, and it is advisable to check post-closing commercial decisions against what was said during the review.

This is particularly relevant for private equity firms, whose deal teams often rely on management for operational and contractual information. What matters is that statements to the Commission are verified against the target's actual contracts, and that the portfolio company's commercial conduct after closing remains consistent with these.

Contact

Our professionals can help structure merger-specific due diligence on the facts that will be presented to the Commission, review notifications and responses to information requests, and advise on keeping post-closing conduct consistent with statements made during the review. If you have any questions or would like to discuss what these developments could mean for your business, please feel free to contact one of the advisers listed below.