Gun Jumping in Merger Control: Lessons From Recent Cases

In a typical sprint, jumping the gun means moving before the starter’s signal, an eager but costly mistake that can get even the best runner disqualified. In antitrust law, the term “gun-jumping” is used to describe the same behavior, a premature action aiming at control or influence in merger and acquisition cases. Gun-jumping occurs when parties to a transaction start behaving as if their deal is complete before competition authorities have given official approval.  As such, whether through exchanging sensitive information, coordinating business decisions, or integrating operations/processes before clearance, companies may be involved in gun-jumping knowingly or unknowingly. However, just like an early sprint start undermines fair play on the track and results in disqualification, companies engaging in gun-jumping are fined severely by competition authorities worldwide.

A very well-known example of gun jumping investigation in the European Union concerns the acquisition of a telecom operator in Portugal by a multinational company. Although the deal was notified to the European Commission (“EC”), later the EC found that parts of the deal had already been implemented before clearance, and premature exercise of control over the target was established through the share purchase agreement. Later in 2023, the Court of Justice confirmed the judgment, which also involves fines for early exchange of competitively sensitive information [i].

In another gun jumping case, the Department of Justice (“DOJ”) and Federal Trade Commission of the US pointed out the importance of keeping the target “independent” prior to closing of the deal. In this case, although the transaction was notified through the pre-merger notification procedure, the parties are alleged to have engaged in pre-closing coordination and operational control of the target company before clearance. The evaluation resulted in a proposed settlement that includes, among other provisions, a severe monetary penalty [ii].

In April 2025, CADE, the Brazilian antitrust agency, fined two companies operating in the automotive industry for gun jumping. In the case that a producer’s tangible and intangible assets used in dealership operations were transferred to another company prior to the agency’s approval, resulting in an administrative fine [iii].

Turkish Competition Authority’s Approach

As can be seen, around the world, competition agencies are increasingly restricting the gun-jumping behaviors, imposing record fines and tighter scrutiny. Two recent gun-jumping decisions of Turkish Competition Authority (“TCA”) also reveals the same sensitivity in Türkiye. Under Turkish merger control regime, the parties to a transaction requiring the approval of the TCA must suspend implementation of such transaction until obtaining the approval of the TCA. According to the suspension requirement stated in Art 10 of Law numbered 4054 on the Protection of Competition (“Law No. 4054”) [iv] the parties must not close a notifiable transaction before receiving the TCA Board’s (Board) approval. As a result, the parties will be in violation if they fail to notify the Board or close the transaction while the Board’s assessment is still pending. The administrative monetary fine with regards to gun jumping constitutes 0.1% of the turnover generated in the financial year preceding the date of the decision on the incumbent undertakings. In the first case [v], the TCA was notified about a transaction concerning acquisition of sole control in a payment services company by a fintech undertaking in August 2023. Considering the parties’ business activities, the TCA began a Phase II review of the deal, yet during the TCA’s evaluation process several complaints from third parties claimed that the parties  had already realized the deal and coordinated their activities before clearance. The TCA conducted on-site inspections at the premises of both the target and the acquirer and found evidence showing that the acquirer,

• appointed the target’s senior executive and played a significant role in decisions regarding promotions, salary increases, and salary promotions for the target’s employees,
• participated in target’s management meetings and together they developed joint marketing and sales.

The TCA concluded that the acquirer exercised premature influence over the target which amounted to the acquisition of de facto control of the target before TCA clearance, resulting in an administrative fine for the acquirer.  In a much more recent case, the Board decided to impose an administrative fine on the acquiring undertaking in another notified acquisition transaction. In this case, the Board announced that, despite the absence of an approval decision issued by the Board, the acquisition subject to authorization was treated as if it had been authorized, thereby violating Article 16 of Law No. 4054. The decision has been officially announced, yet the reasoned decision will shed more light on the facts and details of the case and the behaviors that led to the gun-jumping decision [vi].

What Constitutes Gun Jumping, and How to Prevent It?

Substantive gun jumping involves implementing the transaction (e.g. transferring control, integrating operations, exchanging competitively sensitive information or influencing commercial decisions) before clearance. Procedural gun jumping describes situations in which the parties of a transaction fail to notify the competition authority of a notifiable transaction or complete it before the mandatory waiting period as regulated in respective merger control legislation. Although sharing information for due diligence or taking investment protection measures to the extent commercially necessary before closing is accepted by the competition authorities, exerting influence on the target or implementing the transaction before the acceptance decision is not acceptable. To prevent gun jumping, firstly, it is important to maintain operational independence of the parties involved until approval. Second, the parties should limit exchange of competitively sensitive data to clean teams and enter into confidentiality agreements defining the rules of information exchange. Integration plans should be evaluated carefully; preparations for integration may occur but no actual integration steps such as joint marketing, pricing or involvement in HR decisions should take place before clearance. Another precaution against gun jumping is training the teams and advisors involved in the transaction about gun jumping and keeping a clear record of pre-closing communication and decisions showing compliance with competition legislation.

Preventing gun jumping requires a clear separation between pre-closing planning and post-closing implementation. As such, companies need robust compliance protocols and seek specialized antitrust counsel early in the transaction process.

[i] Altice Group Lux v. Commission (Case C-746/21 P) EU:C:2023:83.

[ii] United States v. XCL Res. Holdings, LLC, et al., No. 1:25-cv-00041 (D.D.C. Jan. 7, 2025).

[iii] CADE case no 08700.000974/2020-60.

[iv] Published in the Official Gazette dated 13 December 1994 and numbered 22140.

[v] TCA decision dated 4 April 2024 and numbered 24-16/390-148.

[vi] The Board Announcement on 26 June 2025 on acquisition Tekfen shares.