# Official Journal C 315/2018

| | ISSN 1977-091X |
| --- | --- |
| Official Journal
  of the European Union | C 315 |
| | |
| English edition | Information and Notices | Volume 617 September 2018 |

ISSN 1977-091X

Official Journal

of the European Union

C 315

English edition

Information and Notices

Volume 617 September 2018

---

| Contents | page |
| --- | --- |
| | II   Information |
| | INFORMATION FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES |
| | European Commission |
| 2018/C 315/01 | Non-opposition to a notified concentration (Case M.8908 — AXA/XL Group) (
  1
  ) | 1 |
| 2018/C 315/02 | Non-opposition to a notified concentration (Case M.8862 — GBT/HRG) (
  1
  ) | 1 |

Contents

page

II   Information

INFORMATION FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

European Commission

2018/C 315/01

Non-opposition to a notified concentration (Case M.8908 — AXA/XL Group) (
  1
  )

1

1

2018/C 315/02

Non-opposition to a notified concentration (Case M.8862 — GBT/HRG) (
  1
  )

1

1

---

| | IV   Notices |
| --- | --- |
| | NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES |
| | European Commission |
| 2018/C 315/03 | Euro exchange rates | 2 |
| 2018/C 315/04 | Commission Decision of 6 September 2018 designating the standing high-level independent Chair and Vice-Chair of the Panel referred to in Article 143 of Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council (the Financial Regulation) for the remaining period of their current mandate | 3 |
| 2018/C 315/05 | Opinion of the Advisory Committee on mergers given at its meeting of 11 April 2018 regarding a draft decision relating to Case M.7993 — Altice/PT Portugal (Article 14(2) procedure) — Rapporteur: France | 5 |
| 2018/C 315/06 | Opinion of the Advisory Committee on mergers given at its meeting of 23 April 2018 regarding a preliminary draft decision relating to Case M.7993 — Altice/PT Portugal (Article 14(2) procedure) — Rapporteur: France | 6 |
| 2018/C 315/07 | Final Report of the Hearing Officer — Case M.7993 — Altice/PT Portugal (Article 14(2) procedure) | 7 |
| 2018/C 315/08 | Summary of Commission Decision of 24 April 2018 imposing fines under Article 14(2) of the Merger Regulation on Altice N.V. for infringing articles 4(1) and 7(1) of the Merger Regulation (Case M.7993 — Altice/PT Portugal (Art. 14(2) procedure)) | 11 |
| | Court of Auditors |
| 2018/C 315/09 | Special Report No 21/2018 — Selection and monitoring for ERDF and ESF projects in the 2014-2020 period are still mainly outputs-oriented | 20 |

IV   Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

European Commission

2018/C 315/03

Euro exchange rates

2

2018/C 315/04

Commission Decision of 6 September 2018 designating the standing high-level independent Chair and Vice-Chair of the Panel referred to in Article 143 of Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council (the Financial Regulation) for the remaining period of their current mandate

3

2018/C 315/05

Opinion of the Advisory Committee on mergers given at its meeting of 11 April 2018 regarding a draft decision relating to Case M.7993 — Altice/PT Portugal (Article 14(2) procedure) — Rapporteur: France

5

2018/C 315/06

Opinion of the Advisory Committee on mergers given at its meeting of 23 April 2018 regarding a preliminary draft decision relating to Case M.7993 — Altice/PT Portugal (Article 14(2) procedure) — Rapporteur: France

6

2018/C 315/07

Final Report of the Hearing Officer — Case M.7993 — Altice/PT Portugal (Article 14(2) procedure)

7

2018/C 315/08

Summary of Commission Decision of 24 April 2018 imposing fines under Article 14(2) of the Merger Regulation on Altice N.V. for infringing articles 4(1) and 7(1) of the Merger Regulation (Case M.7993 — Altice/PT Portugal (Art. 14(2) procedure))

11

Court of Auditors

2018/C 315/09

Special Report No 21/2018 — Selection and monitoring for ERDF and ESF projects in the 2014-2020 period are still mainly outputs-oriented

20

---

| | V   Announcements |
| --- | --- |
| | ADMINISTRATIVE PROCEDURES |
| | European Commission |
| 2018/C 315/10 | Calls for proposals and related activities under the ERC Work Programme 2019 under Horizon 2020 — the Framework Programme for Research and Innovation (2014-2020) | 21 |
| | PROCEDURES RELATING TO THE IMPLEMENTATION OF THE COMMON COMMERCIAL POLICY |
| | European Commission |
| 2018/C 315/11 | Notice of the expiry of certain anti-subsidy measures | 22 |
| | PROCEDURES RELATING TO THE IMPLEMENTATION OF COMPETITION POLICY |
| | European Commission |
| 2018/C 315/12 | Prior notification of a concentration (Case M.9052 — Kirin/Mitsui/Thorne) — Candidate case for simplified procedure (
  1
  ) | 23 |
| 2018/C 315/13 | Prior notification of a concentration (Case M.8952 — STEAG/Siemens/JV STEAG GuD) (
  1
  ) | 25 |

V   Announcements

ADMINISTRATIVE PROCEDURES

European Commission

2018/C 315/10

Calls for proposals and related activities under the ERC Work Programme 2019 under Horizon 2020 — the Framework Programme for Research and Innovation (2014-2020)

21

PROCEDURES RELATING TO THE IMPLEMENTATION OF THE COMMON COMMERCIAL POLICY

European Commission

2018/C 315/11

Notice of the expiry of certain anti-subsidy measures

22

PROCEDURES RELATING TO THE IMPLEMENTATION OF COMPETITION POLICY

European Commission

2018/C 315/12

Prior notification of a concentration (Case M.9052 — Kirin/Mitsui/Thorne) — Candidate case for simplified procedure (
  1
  )

1

23

2018/C 315/13

Prior notification of a concentration (Case M.8952 — STEAG/Siemens/JV STEAG GuD) (
  1
  )

1

25

---

| | |
| --- | --- |
| | (1)   Text with EEA relevance. |

---

(1)   Text with EEA relevance.

1

| EN | |
| --- | --- |

EN

---

II Information

INFORMATION FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

European Commission

| 7.9.2018 | EN | Official Journal of the European Union | C 315/1 |
| --- | --- | --- | --- |

7.9.2018

EN

Official Journal of the European Union

C 315/1

---

Non-opposition to a notified concentration

(Case M.8908 — AXA/XL Group)

(Text with EEA relevance)

(2018/C 315/01)

On 9 August 2018, the Commission decided not to oppose the above notified concentration and to declare it compatible with the internal market. This decision is based on Article 6(1)(b) of Council Regulation (EC) No 139/2004 (1). The full text of the decision is available only in English and will be made public after it is cleared of any business secrets it may contain. It will be available:

| — | in the merger section of the Competition website of the Commission (http://ec.europa.eu/competition/mergers/cases/). This website provides various facilities to help locate individual merger decisions, including company, case number, date and sectoral indexes, |
| --- | --- |

—

in the merger section of the Competition website of the Commission (http://ec.europa.eu/competition/mergers/cases/). This website provides various facilities to help locate individual merger decisions, including company, case number, date and sectoral indexes,

| — | in electronic form on the EUR-Lex website (http://eur-lex.europa.eu/homepage.html?locale=en) under document number 32018M8908. EUR-Lex is the online access to European law. |
| --- | --- |

—

in electronic form on the EUR-Lex website (http://eur-lex.europa.eu/homepage.html?locale=en) under document number 32018M8908. EUR-Lex is the online access to European law.

---

(1)  OJ L 24, 29.1.2004, p. 1.

---

| 7.9.2018 | EN | Official Journal of the European Union | C 315/1 |
| --- | --- | --- | --- |

7.9.2018

EN

Official Journal of the European Union

C 315/1

---

Non-opposition to a notified concentration

(Case M.8862 — GBT/HRG)

(Text with EEA relevance)

(2018/C 315/02)

On 13 July 2018, the Commission decided not to oppose the above notified concentration and to declare it compatible with the internal market. This decision is based on Article 6(1)(b) of Council Regulation (EC) No 139/2004 (1). The full text of the decision is available only in English and will be made public after it is cleared of any business secrets it may contain. It will be available:

| — | in the merger section of the Competition website of the Commission (http://ec.europa.eu/competition/mergers/cases/). This website provides various facilities to help locate individual merger decisions, including company, case number, date and sectoral indexes, |
| --- | --- |

—

in the merger section of the Competition website of the Commission (http://ec.europa.eu/competition/mergers/cases/). This website provides various facilities to help locate individual merger decisions, including company, case number, date and sectoral indexes,

| — | in electronic form on the EUR-Lex website (http://eur-lex.europa.eu/homepage.html?locale=en) under document number 32018M8862. EUR-Lex is the online access to European law. |
| --- | --- |

—

in electronic form on the EUR-Lex website (http://eur-lex.europa.eu/homepage.html?locale=en) under document number 32018M8862. EUR-Lex is the online access to European law.

---

(1)  OJ L 24, 29.1.2004, p. 1.

---

IV Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

European Commission

| 7.9.2018 | EN | Official Journal of the European Union | C 315/2 |
| --- | --- | --- | --- |

7.9.2018

EN

Official Journal of the European Union

C 315/2

---

Euro exchange rates (1)

6 September 2018

(2018/C 315/03)

1 euro =

| | Currency | Exchange rate |
| --- | --- | --- |
| USD | US dollar | 1,1634 |
| JPY | Japanese yen | 129,55 |
| DKK | Danish krone | 7,4567 |
| GBP | Pound sterling | 0,89824 |
| SEK | Swedish krona | 10,5908 |
| CHF | Swiss franc | 1,1275 |
| ISK | Iceland króna | 127,80 |
| NOK | Norwegian krone | 9,7760 |
| BGN | Bulgarian lev | 1,9558 |
| CZK | Czech koruna | 25,715 |
| HUF | Hungarian forint | 326,49 |
| PLN | Polish zloty | 4,3183 |
| RON | Romanian leu | 4,6385 |
| TRY | Turkish lira | 7,6282 |
| AUD | Australian dollar | 1,6164 |
| CAD | Canadian dollar | 1,5338 |
| HKD | Hong Kong dollar | 9,1324 |
| NZD | New Zealand dollar | 1,7633 |
| SGD | Singapore dollar | 1,6000 |
| KRW | South Korean won | 1 304,76 |
| ZAR | South African rand | 17,8233 |
| CNY | Chinese yuan renminbi | 7,9451 |
| HRK | Croatian kuna | 7,4341 |
| IDR | Indonesian rupiah | 17 323,54 |
| MYR | Malaysian ringgit | 4,8120 |
| PHP | Philippine peso | 62,592 |
| RUB | Russian rouble | 79,5747 |
| THB | Thai baht | 38,130 |
| BRL | Brazilian real | 4,7918 |
| MXN | Mexican peso | 22,3653 |
| INR | Indian rupee | 83,7175 |

Currency

Exchange rate

USD

US dollar

1,1634

JPY

Japanese yen

129,55

DKK

Danish krone

7,4567

GBP

Pound sterling

0,89824

SEK

Swedish krona

10,5908

CHF

Swiss franc

1,1275

ISK

Iceland króna

127,80

NOK

Norwegian krone

9,7760

BGN

Bulgarian lev

1,9558

CZK

Czech koruna

25,715

HUF

Hungarian forint

326,49

PLN

Polish zloty

4,3183

RON

Romanian leu

4,6385

TRY

Turkish lira

7,6282

AUD

Australian dollar

1,6164

CAD

Canadian dollar

1,5338

HKD

Hong Kong dollar

9,1324

NZD

New Zealand dollar

1,7633

SGD

Singapore dollar

1,6000

KRW

South Korean won

1 304,76

ZAR

South African rand

17,8233

CNY

Chinese yuan renminbi

7,9451

HRK

Croatian kuna

7,4341

IDR

Indonesian rupiah

17 323,54

MYR

Malaysian ringgit

4,8120

PHP

Philippine peso

62,592

RUB

Russian rouble

79,5747

THB

Thai baht

38,130

BRL

Brazilian real

4,7918

MXN

Mexican peso

22,3653

INR

Indian rupee

83,7175

---

(1)  Source: reference exchange rate published by the ECB.

---

| 7.9.2018 | EN | Official Journal of the European Union | C 315/3 |
| --- | --- | --- | --- |

7.9.2018

EN

Official Journal of the European Union

C 315/3

---

COMMISSION DECISION

of 6 September 2018

designating the standing high-level independent Chair and Vice-Chair of the Panel referred to in Article 143 of Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council (the Financial Regulation) for the remaining period of their current mandate

(2018/C 315/04)

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union,

Having regard to Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014, and Decision No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012 (1), and in particular Article 143(3) thereof,

Whereas:

| (1) | The Panel is the cornerstone of the Early Detection and Exclusion System (EDES, referred to hereinafter as the ‘EDES Panel’). Established in 2016, this inter-institutional Panel has primarily (or inter alia) the task of issuing recommendations at the request of Authorising Officers of all Institutions and bodies on the imposition of administrative sanctions (exclusion from the award of Union funds and/or imposition of financial penalties) on unreliable economic operators. |
| --- | --- |

(1)

The Panel is the cornerstone of the Early Detection and Exclusion System (EDES, referred to hereinafter as the ‘EDES Panel’). Established in 2016, this inter-institutional Panel has primarily (or inter alia) the task of issuing recommendations at the request of Authorising Officers of all Institutions and bodies on the imposition of administrative sanctions (exclusion from the award of Union funds and/or imposition of financial penalties) on unreliable economic operators.

| (2) | Following a public call for expression of interests and a selection by a panel of three Directors-General of the Commission, the College decided, on 5 July 2016 (PV (2016) 2176), to appoint Mr Christian PENNERA, former Jurisconsult and Director-General of the Legal Service of the European Parliament, and Ms Maria Isabel ROFES i PUJOL, former Judge at the European Union Civil Service Tribunal, as Chair and Vice-Chair of the EDES Panel respectively for a mandate of five years ending on 4 July 2021. |
| --- | --- |

(2)

Following a public call for expression of interests and a selection by a panel of three Directors-General of the Commission, the College decided, on 5 July 2016 (PV (2016) 2176), to appoint Mr Christian PENNERA, former Jurisconsult and Director-General of the Legal Service of the European Parliament, and Ms Maria Isabel ROFES i PUJOL, former Judge at the European Union Civil Service Tribunal, as Chair and Vice-Chair of the EDES Panel respectively for a mandate of five years ending on 4 July 2021.

| (3) | On 20 June 2018, the College also decided to appoint Mr PENNERA and Ms ROFES i PUJOL as Chair and Vice-Chair respectively of the Commission’s specialised financial irregularities Panel referred to in Article 73 paragraph 6 of the repealed Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council (2) (hereafter ‘the ISIF’ Panel) for a period of two years. The Commission’s ISIF Panel plays an advisory role in determining the existence and the consequences of financial irregularities committed by members of staff. Specialised financial irregularities panels have also been set up in other Union institutions. |
| --- | --- |

(3)

On 20 June 2018, the College also decided to appoint Mr PENNERA and Ms ROFES i PUJOL as Chair and Vice-Chair respectively of the Commission’s specialised financial irregularities Panel referred to in Article 73 paragraph 6 of the repealed Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council (2) (hereafter ‘the ISIF’ Panel) for a period of two years. The Commission’s ISIF Panel plays an advisory role in determining the existence and the consequences of financial irregularities committed by members of staff. Specialised financial irregularities panels have also been set up in other Union institutions.

| (4) | The new Financial Regulation which entered into force on 2 August 2018 abrogates all ISIF panels and transfers their competences to the EDES Panel. However, this transfer of ISIF Panels competences to the EDES Panel, will only apply to the implementation of administrative appropriations as from 1 January 2019. |
| --- | --- |

(4)

The new Financial Regulation which entered into force on 2 August 2018 abrogates all ISIF panels and transfers their competences to the EDES Panel. However, this transfer of ISIF Panels competences to the EDES Panel, will only apply to the implementation of administrative appropriations as from 1 January 2019.

| (5) | It is necessary to ensure that the appointment and the mandate of the Chair, as far as the treatment of financial irregularities by staff members is concerned, fully comply with the requirements of the Financial Regulation with regard to his independence, and the conditions set for the duration of his mandate and the selection procedure. This should also apply to the Vice-Chair. |
| --- | --- |

(5)

It is necessary to ensure that the appointment and the mandate of the Chair, as far as the treatment of financial irregularities by staff members is concerned, fully comply with the requirements of the Financial Regulation with regard to his independence, and the conditions set for the duration of his mandate and the selection procedure. This should also apply to the Vice-Chair.

| (6) | In particular in order to respect their independence and the integrity of their five year mandate as Chair and Vice-Chair respectively of the EDES Panel, Mr Christian PENNERA and Ms Maria Isabel ROFES i PUJOL should be also designated for the remaining period of their current mandate as respectively Chair and Vice-Chair of the merged Panel. This is also necessary given the non-renewable nature of the mandate of the Chair of the EDES Panel. In this respect, it is important to underline that the procedure followed in 2016 to appoint Mr PENNERA and Ms ROFES i PUJOL as Chair and Vice-Chair respectively of the EDES Panel fulfils all the requirements of the new Financial Regulation for the appointment of the Chair and Vice-Chair of the merged Panel. |
| --- | --- |

(6)

In particular in order to respect their independence and the integrity of their five year mandate as Chair and Vice-Chair respectively of the EDES Panel, Mr Christian PENNERA and Ms Maria Isabel ROFES i PUJOL should be also designated for the remaining period of their current mandate as respectively Chair and Vice-Chair of the merged Panel. This is also necessary given the non-renewable nature of the mandate of the Chair of the EDES Panel. In this respect, it is important to underline that the procedure followed in 2016 to appoint Mr PENNERA and Ms ROFES i PUJOL as Chair and Vice-Chair respectively of the EDES Panel fulfils all the requirements of the new Financial Regulation for the appointment of the Chair and Vice-Chair of the merged Panel.

| (7) | With view to ensuring transparency and proper information of economic operators, as well as the staff of Union institutions, bodies, European offices and agencies, these appointments should be published, and notified to other Union institutions, Union bodies, European offices and agencies, |
| --- | --- |

(7)

With view to ensuring transparency and proper information of economic operators, as well as the staff of Union institutions, bodies, European offices and agencies, these appointments should be published, and notified to other Union institutions, Union bodies, European offices and agencies,

HAS DECIDED AS FOLLOWS:

Article 1

Appointments

Mr Christian PENNERA and Ms Maria Isabel ROFES i PUJOL are appointed as Chair and Vice-Chair respectively of the Panel referred to in Article 143 of the Financial Regulation for the remaining part of their mandate of five years, as decided by the College on 5 July 2016 (PV (2016) 2176).

Article 2

Contracts as Special Advisers

As provided for in Article 143(3) of the Financial Regulation, Mr Christian PENNERA and Ms Maria Isabel ROFES i PUJOL are administratively attached as Special Advisers to Commissioner OETTINGER in accordance with the Rules governing Special Advisers C(2007) 6655 of 19 December 2007, as amended by Commission Decision C(2014) 541 of 6 February 2014.

| 1. | In order to respect the independence of Mr PENNERA and Ms ROFES i PUJOL and the duration of their mandate, their contracts as Special Advisers will be renewed until the end of their mandate. The contract of Mr PENNERA includes 70 working days and 35 mission days, and the contract of Ms ROFES i PUJOL includes 60 working days and 35 mission days. The number of working days may be amended by way of administrative and budgetary decisions. Mr PENNERA and Ms ROFES i PUJOL will receive a fee for each day of work, calculated on the basis of the basic salary of an official of the European Union in grade AD 16, step 1. |
| --- | --- |

1.

In order to respect the independence of Mr PENNERA and Ms ROFES i PUJOL and the duration of their mandate, their contracts as Special Advisers will be renewed until the end of their mandate. The contract of Mr PENNERA includes 70 working days and 35 mission days, and the contract of Ms ROFES i PUJOL includes 60 working days and 35 mission days. The number of working days may be amended by way of administrative and budgetary decisions. Mr PENNERA and Ms ROFES i PUJOL will receive a fee for each day of work, calculated on the basis of the basic salary of an official of the European Union in grade AD 16, step 1.

| 2. | The contracts of Mr PENNERA and Ms ROFES i PUJOL as Chair and Vice-Chair respectively of the Commission’s specialised financial irregularities Panel referred to in Article 73 paragraph 6 of the repealed Regulation (EU, Euratom) No 966/2012 shall be terminated on 31 December 2018. |
| --- | --- |

2.

The contracts of Mr PENNERA and Ms ROFES i PUJOL as Chair and Vice-Chair respectively of the Commission’s specialised financial irregularities Panel referred to in Article 73 paragraph 6 of the repealed Regulation (EU, Euratom) No 966/2012 shall be terminated on 31 December 2018.

| 3. | Commissioner OETTINGER is authorised to amend, subject to the availability of sufficient funds, the Special Adviser contracts in the event of duly justified needs. |
| --- | --- |

3.

Commissioner OETTINGER is authorised to amend, subject to the availability of sufficient funds, the Special Adviser contracts in the event of duly justified needs.

| 4. | The Director-General of DG HR is authorised to implement this decision by signing the contracts on behalf of the Authority Responsible for Concluding Contracts of Employment. |
| --- | --- |

4.

The Director-General of DG HR is authorised to implement this decision by signing the contracts on behalf of the Authority Responsible for Concluding Contracts of Employment.

Article 3

Publication and notification

The Directorate-General of DG HR is instructed to publish these appointments in the Official Journal — series C and to notify them to other Union institutions, Union bodies, European offices and agencies.

Done at Brussels, 6 September 2018.

For the Commission

Günther OETTINGER

Member of the Commission

---

(1)  OJ L 193, 30.7.2018, p. 1.

1

(2)  Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 (OJ L 298, 26.10.2012, p. 1).

2

---

| 7.9.2018 | EN | Official Journal of the European Union | C 315/5 |
| --- | --- | --- | --- |

7.9.2018

EN

Official Journal of the European Union

C 315/5

---

Opinion of the Advisory Committee on mergers given at its meeting of 11 April 2018 regarding a draft decision relating to Case M.7993 — Altice/PT Portugal (Article 14(2) procedure)

Rapporteur: France

(2018/C 315/05)

1.

The Advisory Committee agrees with the Commission that the Commission’s assessment that the Transaction Agreement concluded between Altice and Oi went beyond what was necessary to preserve the value of the Target’s business and gave Altice the possibility to exercise decisive influence over the Target pending notification and the clearance decision of the Commission.

2.

The Advisory Committee agrees with the Commission’s assessment that in the instances described in the Decision (i.e. the Post-Paid Campaign, the Porto Canal contract, the selection of a RAN supplier, the Video on Demand contract, the DOG TV contract, the SIRESP shares and the Lactogal contract) Altice went beyond what was necessary to preserve the value of the Target’s business and exercised decisive influence over the Target pending notification and/or the clearance decision of the Commission, as appropriate.

3.

The Advisory Committee agrees with the Commission’s assessment that the exchanges of commercially sensitive information contributed to Altice’s exercise of decisive influence over certain conducts pertaining to the Target pending notification and the clearance decision of the Commission and cannot be justified on the basis of the need to preserve the value of the Target’s business.

4.

The Advisory Committee agrees with the Commission’s assessment that Altice has at least negligently infringed Article 4(1) of the Merger Regulation (1).

5.

The Advisory Committee agrees with the Commission that Altice has at least negligently infringed Article 7(1) of the Merger Regulation.

6.

The Advisory Committee agrees with the Commission that Altice should be fined pursuant to Article 14(2)(a) and Article 14(2)(b) of the Merger Regulation.

7.

The Advisory Committee recommends the publication of its opinion in the Official Journal of the European Union.

---

(1)  Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) (OJ L 24, 29.1.2004, p. 1).

1

---

| 7.9.2018 | EN | Official Journal of the European Union | C 315/6 |
| --- | --- | --- | --- |

7.9.2018

EN

Official Journal of the European Union

C 315/6

---

Opinion of the Advisory Committee on mergers given at its meeting of 23 April 2018 regarding a preliminary draft decision relating to Case M.7993 — Altice/PT Portugal (Article 14(2) procedure)

Rapporteur: France

(2018/C 315/06)

1.

The Advisory Committee (6 Member States) agree with the factors that were considered relevant for the purposes of fixing the amount of the fines for Altice pursuant to Article 14(2)(a) and Article 14(2)(b) of the Merger Regulation (1).

2.

The Advisory Committee (6 Member States) agree with the actual level of the fines proposed by the Commission.

---

(1)  Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) (OJ L 24, 29.1.2004, p. 1).

1

---

| 7.9.2018 | EN | Official Journal of the European Union | C 315/7 |
| --- | --- | --- | --- |

7.9.2018

EN

Official Journal of the European Union

C 315/7

---

Final Report of the Hearing Officer (1)

Case M.7993 — Altice/PT Portugal (Article 14(2) procedure)

(2018/C 315/07)

Introduction

| 1. | On 9 December 2014, Altice SA and Altice Portugal SA signed an agreement for the purchase of PT Portugal (2) from Oi (3) (the ‘Transaction Agreement’). On 18 December 2014, Altice SA commenced pre-notification discussions with the European Commission (the ‘Commission’) in order to obtain merger control clearance for this acquisition. On 25 February 2015 Altice SA (4) formally notified the transaction to the Commission, together with an offer for remedies under Article 6(2) of the Merger Regulation (5). The Commission raised serious doubts as to the compatibility of the merger with the internal market, finding concerns in a number of horizontally affected markets. |
| --- | --- |

1.

| 2. | On 20 April 2015, the Commission conditionally cleared the transaction following a revised remedy offer by Altice (the ‘clearance decision’). Altice announced that it had closed the transaction on 2 June 2015. |
| --- | --- |

2.

| 3. | On 13 April 2015, the Commission sent a request for information (‘RFI’) to Altice asking for details on the purpose and content of visits by Altice executives to PT Portugal, prior to the adoption of the clearance decision, that the Portuguese press had reported upon. Altice replied to this RFI on 17 April 2015. |
| --- | --- |

3.

| 4. | The Commission sent a further RFI on 12 May 2015 (focussing on documents relating to the Altice and PT Portugal meetings), to which Altice replied on 12 June 2015, but only providing Altice (and not PT Portugal) documents. |
| --- | --- |

4.

| 5. | On 8 July 2015, the Commission adopted a decision under Article 11(3) Merger Regulation requiring Altice to provide responsive PT Portugal documents. Altice responded on 30 July 2015. The Commission sent another RFI on 4 December 2015 and Altice responded on 18 December 2015. |
| --- | --- |

5.

| 6. | On 15 March 2016, the Commission adopted a decision under Article 11(3) Merger Regulation requiring Altice to provide (inter alia) employee electronic mailboxes, confidentiality agreements and documents specifically relating to certain interactions between Altice and PT Portugal prior to 20 April 2015. Altice submitted the requested documents on 6 April 2016. |
| --- | --- |

6.

| 7. | Finally, the Commission sent Altice RFIs on 20 July 2016, 24 August 2016, 27 September 2016 and 21 December 2016 to which Altice responded. |
| --- | --- |

7.

Statement of Objections

| 8. | On 18 May 2017, the Commission notified a Statement of Objections (‘SO’) to Altice. In the SO, the Commission took the preliminary view that Altice had implemented a concentration with a Union dimension in breach of Articles 4(1) and 7(1) of the Merger Regulation. More specifically, the Commission’s preliminary view in the SO was that the Transaction Agreement already granted Altice the legal right to exercise decisive influence over PT Portugal. In addition, the Commission’s provisional assessment was that Altice actually exercised decisive influence over PT Portugal before the clearance decision and, in certain instances, before notification to the Commission by (a) being involved in certain PT Portugal commercial decisions; and (b) by systematically receiving commercially sensitive information from PT Portugal. |
| --- | --- |

8.

| 9. | The deadline for the reply to the SO was initially 26 June 2017, but was subsequently extended to 18 August 2017. |
| --- | --- |

9.

| 10. | Altice received access to the file on 29 May 2017. No issues concerning access to the file have been brought to my attention. |
| --- | --- |

10.

Oral hearing

| 11. | In its SO response of 18 August 2017, Altice requested the opportunity to develop its arguments at a formal oral hearing which was held on 21 September 2017. On 19 October 2017, Altice provided an addendum to its presentation at the oral hearing in response to observations and questions made by the Commission during the hearing concerning Altice’s involvement in certain matters of PT Portugal’s business (6). |
| --- | --- |

11.

Letter of Facts

| 12. | In its response to the SO and during the oral hearing, Altice argued that the Commission should have contacted Oi, since Oi’s interpretation of the Transaction Agreement and its decisions as to whether or not to consult Altice during the pre-closing period played a significant role in the implementation of the Transaction Agreement pre-closing covenants. |
| --- | --- |

12.

| 13. | In light of these observations, the Commission sent an RFI to Oi on 6 October 2017. Oi provided its response on 20 October 2017. |
| --- | --- |

13.

| 14. | On 16 November 2017, the Commission sent a Letter of Facts to Altice pointing to factual elements not mentioned in the SO that supported the preliminary conclusions set out in the SO. The Letter of Facts referred both to factual elements that were on the file, but also additional factual elements identified after the SO (more specifically, Oi’s 20 October 2017 RFI response). |
| --- | --- |

14.

| 15. | Altice was given until 30 November 2017 to submit its written observations to the Letter of Facts. It requested an extension of the deadline by eight weeks until 26 January 2018. An extension was granted until 15 December 2017 and on that date Altice provided its response to the Letter of Facts. |
| --- | --- |

15.

| 16. | On 28 December 2017, Altice sent a letter to the Hearing Officer complaining about certain procedural points that are further discussed below. |
| --- | --- |

16.

Procedural issues raised by Altice in relation to rights of defence

Oi’s involvement in the investigation

| 17. | As mentioned above, in its response to the SO and during the oral hearing, Altice argued that the Commission should have contacted Oi during its investigation. According to Altice, by refusing to consult Oi, the Commission failed to take into account elements that are relevant for assessing the case, thereby infringing Altice’s rights of defence, especially its right to be heard and its right to good administration. |
| --- | --- |

17.

| 18. | I consider that Altice’s claim is not sustainable. First, the EU Courts have confirmed that the Commission has a reasonable margin of discretion to decide how expedient it may be to hear persons whose evidence may be relevant to the inquiry (7). Furthermore, the guarantee of the rights of defence does not require the Commission to carry out further investigations where it considers that the preliminary investigation of the case has been sufficient (8). In any case, as mentioned above, following the oral hearing, the Commission did send an RFI to Oi to seek Oi’s views on the interpretation and implementation in practice of the Transaction Agreement. In its reply to the Letter of Facts (where Altice was given the opportunity to comment on Oi’s response to the Commission’s RFI) and in its letter to the Hearing Officer on 28 December 2017, Altice further claimed that the Commission did not sufficiently investigate Oi’s role and viewpoint. On this point, however, I should note that whether or not the investigation file contains sufficient evidence to support an infringement finding is ultimately a question of substance. |
| --- | --- |

18.

| 19. | Altice also argued that the involvement of Oi in the investigation was extremely important from a procedural viewpoint and that, as such, Oi’s responses should have been presented in a supplementary statement of objections rather than a Letter of Facts. I do not agree with Altice’s assessment in this respect: Oi’s responses to the RFI are factual elements relevant to the Commission’s existing objections in the SO. This type of evidence is presented in a letter of facts and not in a supplementary statement of objections. |
| --- | --- |

19.

Necessity and proportionality of Commission’s RFIs sent during the investigation

| 20. | In its response to the SO, Altice argued that the Commission’s RFIs sent to Altice during the investigation were disproportionate to the needs of the investigation because of the volume of information requested and in view of the time-limits fixed by the Commission to respond to these RFIs. |
| --- | --- |

20.

| 21. | For the purposes of this report it suffices to note that Altice did not exercise its full procedural rights in this respect. Even though the Terms of Reference do not specifically give powers to the Hearing Officer to extend deadlines in the case of procedural infringements of merger control rules (9), Altice could have requested a further extension of time from the Commission or appealed the Commission decisions of 8 July 2015 and 15 March 2016 to the General Court. |
| --- | --- |

21.

Altice’s procedural criticisms on the Letter of Facts

| 22. | In its response to the Letter of Facts and subsequently in its letter to the Hearing Officer of 28 December 2017, Altice complained about the following procedural issues relating to the Letter of Facts:






  — | According to Altice, the Commission already had knowledge of the consultations referred to in the Letter of Facts at the time of the SO and deliberately chose not to mention these elements in the SO. According to Altice, the fact that the Commission did not include these elements in the SO did not allow these elements to be debated between Altice and the Commission throughout the entire proceedings, including at the oral hearing. |
| --- | --- | --- |

22.

—

According to Altice, the Commission already had knowledge of the consultations referred to in the Letter of Facts at the time of the SO and deliberately chose not to mention these elements in the SO. According to Altice, the fact that the Commission did not include these elements in the SO did not allow these elements to be debated between Altice and the Commission throughout the entire proceedings, including at the oral hearing.

| — | In addition, Altice argued that the Letter of Facts listed 19 matters on which Altice was consulted without explaining the reason for which it considers that these matters would corroborate the preliminary findings set out in the SO. According to Altice, the Commission did not provide any legal characterisation to the new elements of the infringement introduced in the Letter of Facts and the status of the issues mentioned in footnote 4 of the Letter of Facts was unclear. |
| --- | --- |

—

In addition, Altice argued that the Letter of Facts listed 19 matters on which Altice was consulted without explaining the reason for which it considers that these matters would corroborate the preliminary findings set out in the SO. According to Altice, the Commission did not provide any legal characterisation to the new elements of the infringement introduced in the Letter of Facts and the status of the issues mentioned in footnote 4 of the Letter of Facts was unclear.

| 23. | I would note the following in this respect: first, the Commission presented additional existing information from its file in the Letter of Facts because the Commission considered that this evidence contradicted certain claims made by Altice in its response to the SO. The Commission did not, as Altice claims, deliberately choose not to mention these elements in the SO. Second, as the draft decision explains, the Commission (a) investigated Altice’s claim that there were several decisions taken by PT Portugal between signing and clearance where Altice was not consulted; (b) verified the instances in which Altice’s consent was requested through formal Oi letters; and (c) found instances (in addition to those mentioned in the SO) where Altice’s consent was requested on which Altice had claimed that it had not been consulted or even informed thereof. These items do not form new objections against Altice and are not used against Altice in the draft decision as instances where the exercise of decisive influence is shown, but are merely used to respond to Altice’s claim that it was not consulted on or informed of many decisions taken by PT Portugal between signing and clearance. |
| --- | --- |

23.

Request for a second oral hearing

| 24. | In its letter of 28 December 2017, Altice also requested that a new oral hearing be organised. |
| --- | --- |

24.

| 25. | Article 14(3) of Commission Regulation (EC) No 802/2004 (10) (read in conjunction with Article 13 of Regulation (EC) No 802/2004) only provides for the right to request a formal oral hearing in the written comments to the SO, not in observations to a letter of facts. This is also confirmed by Article 6(1) of Decision 2011/695/EU. Since the 16 November 2017 Letter of Facts did not contain any new objections against Altice that had not been set out in the SO, a right to a second formal oral hearing was not triggered. |
| --- | --- |

25.

Additional information for participants at the oral hearing

| 26. | In its letter of 28 December 2017, Altice also indicated that, in view of the elements put forward by the Commission in its Letter of Facts, Altice would provide a new version of the slide deck which had been presented at the oral hearing. Altice provided such updated version of the presentation on 18 January 2018. This version was sent to all the participants of the oral hearing. |
| --- | --- |

26.

Draft Decision

| 27. | In the draft decision the Commission comes to the conclusion that Altice has, at least negligently, implemented a concentration in breach of Articles 4(1) and 7(1) of the Merger Regulation. |
| --- | --- |

27.

| 28. | I have reviewed the draft decision pursuant to Article 16(1) of Decision 2011/695/EU and I conclude that it deals only with objections in respect of which the Parties have been afforded the opportunity of making known their views. |
| --- | --- |

28.

Conclusion

| 29. | Overall, I consider that the effective exercise of procedural rights has been respected in this case. |
| --- | --- |

29.

Brussels, 23 April 2018.

Joos STRAGIER

---

(1)  Pursuant to Articles 16 and 17 of Decision 2011/695/EU of the President of the European Commission of 13 October 2011 on the function and terms of reference of the hearing officer in certain competition proceedings (OJ L 275, 20.10.2011, p. 29) (‘Decision 2011/695/EU’).

1

(2)  PT Portugal SGPS SA, a telecommunications and multimedia operator in Portugal.

2

(3)  Oi SA, the Brazilian telecommunications operator.

3

(4)  Although Altice SA was the Notifying Party in the transaction (M.7499), on 9 August 2015 Altice SA merged with Altice NV — the new holding company of Altice Group — in result of which Altice SA ceased to exist. Altice NV, as legal successor of Altice SA, is the addressee of the draft Decision. Altice SA and Altice NV are referred to as ‘Altice’ in this report.

4

(5)  Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) (OJ L 24, 29.1.2004, p. 1).

5

(6)  This addendum was distributed to all participants at the oral hearing. On 18 January 2018 Altice provided an updated version of the presentation to take account of its response to the Letter of Facts (see paragraph 26 below).

6

(7)  See, for example, T-9/99 HFB and Others v Commission, EU:T:2002:70, paragraph 383; T-655/11 FSL v Commission, EU:T:2015:383, paragraph 406.

7

HFB and Others v Commission,

FSL v Commission

(8)  See, for example, T-141/94, Thyssen Stahl v Commission, EU:T:1999:48, paragraph 110; T-758/14 Infineon Technologies v Commission EU:T:2016:737, paragraph 110.

8

Thyssen Stahl v Commission

Infineon Technologies v Commission

(9)  See Article 4(2)(c) which only relates to extensions of time limits in decisions requesting information pursuant to Article 18(3) of Council Regulation (EC) No 1/2003.

9

(10)  Commission Regulation (EC) No 802/2004 of 7 April 2004 implementing Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings (OJ L 133, 30.4.2004, p. 1, corrigendum OJ L 172, 6.5.2004, p. 9).

10

---

| 7.9.2018 | EN | Official Journal of the European Union | C 315/11 |
| --- | --- | --- | --- |

7.9.2018

EN

Official Journal of the European Union

C 315/11

---

Summary of Commission Decision

of 24 April 2018

imposing fines under Article 14(2) of the Merger Regulation on Altice N.V. for infringing articles 4(1) and 7(1) of the Merger Regulation

(Case M.7993 — Altice/PT Portugal (Art. 14(2) procedure))

(2018/C 315/08)

I.   FACTUAL BACKGROUND

a.   The undertakings concerned and the concentration

| 1. | Altice N.V. (1) (‘Altice’, The Netherlands) is a multinational cable and telecommunications company. At the time of notification of the Transaction, Altice operated in Portugal via two subsidiaries active in the telecommunications sector, Cabovisão – Televisão por Cabo S.A. (‘Cabovisão’) and ONI Telecom – Infocomunicações S.A. (‘ONI’). |
| --- | --- |

1.

| 2. | PT Portugal SGPS S.A. (‘PT Portugal’ or the ‘Target’) is a telecommunications and multimedia operator with activities extending across all telecommunications segments in Portugal. |
| --- | --- |

2.

| 3. | On 9 December 2014, Altice S.A., the former holding company of Altice Group, and Altice Portugal S.A. (2) entered into a Share Purchase Agreement with the Brazilian telecom operator Oi S.A. (‘Oi’ or the ‘Seller’) whereby Altice S.A. (Luxembourg), through its subsidiary, Altice Portugal S.A., would acquire sole control of PT Portugal within the meaning of Article 3(1)(b) of the Merger Regulation by way of purchase of shares (the ‘Transaction’ and the ‘Transaction Agreement’) (3). |
| --- | --- |

3.

| 4. | On 25 February 2015, the Commission received notification of the Transaction pursuant to Article 4 of the Merger Regulation. Pre-notification contacts with the Commission had started on 18 December 2014. On 20 April 2015, the Commission adopted a decision under Article 6(1)(b) of the Merger Regulation in conjunction with Article 6(2) of the Merger Regulation, declaring the Transaction compatible with the internal market, subject to full compliance by Altice with the obligations and conditions annexed to the decision (the ‘Clearance Decision’). |
| --- | --- |

4.

b.   Background to the current procedings

| 5. | On 13 April 2015 the Commission contacted Altice following reports in the press regarding visits by Altice executives to PT Portugal (4) prior to the adoption by the Commission of the Clearance Decision. |
| --- | --- |

5.

| 6. | By virtue of a letter dated 11 March 2016, the Commission indicated that an investigation was being carried out into the possible infringement by Altice of the stand-still obligation laid down in Article 7(1) of the Merger Regulation and the notification requirement laid down in Article 4(1) of the Merger Regulation. |
| --- | --- |

6.

| 7. | On 12 May 2017, a state of play meeting was held between the Commission’s services and Altice; on 17 May 2017, the Commission issued a statement of objections (the ‘SO’) addressed to Altice pursuant to Article 18 of the Merger Regulation setting out the Commission’s preliminary conclusion that Altice had infringed Article 7(1) and Article 4(1) of the Merger Regulation; and on 21 September 2017, an oral hearing was held (the ‘Hearing’). |
| --- | --- |

7.

| 8. | On 16 November 2017, the Commission addressed a letter to Altice in which it drew Altice’s attention to additional evidence in the Commission’s file in support of the preliminary findings of the SO (the ‘Letter of Facts’). |
| --- | --- |

8.

II.   LEGAL FRAMEWORK

| 9. | Article 3(1) of the Merger Regulation states that:
  ‘A concentration shall be deemed to arise where a change of control on a lasting basis results from [...]






  (b) | the acquisition, by one or more persons already controlling at least one undertaking, or by one or more undertakings, whether by purchase of securities or assets, by contract or by any other means, of direct or indirect control of the whole or parts of one or more other undertakings.’ |
| --- | --- | --- |

9.

‘A concentration shall be deemed to arise where a change of control on a lasting basis results from [...]

(b)

the acquisition, by one or more persons already controlling at least one undertaking, or by one or more undertakings, whether by purchase of securities or assets, by contract or by any other means, of direct or indirect control of the whole or parts of one or more other undertakings.’

| 10. | Article 3(2) of the Merger Regulation further states that:
  ‘Control shall be constituted by rights, contracts or any other means which, either separately or in combination and having regard to the considerations of fact or law involved, confer the possibility of exercising decisive influence on an undertaking, in particular by: (a) ownership or the right to use all or part of the assets of an undertaking; (b) rights or contracts which confer decisive influence on the composition, voting or decisions of the organs of an undertaking.’ |
| --- | --- |

10.

‘Control shall be constituted by rights, contracts or any other means which, either separately or in combination and having regard to the considerations of fact or law involved, confer the possibility of exercising decisive influence on an undertaking, in particular by: (a) ownership or the right to use all or part of the assets of an undertaking; (b) rights or contracts which confer decisive influence on the composition, voting or decisions of the organs of an undertaking.’

| 11. | The General Court has confirmed that: ‘according to Article 3(2) of Regulation (EC) No 139/2004, control is to be constituted, inter alia, by rights which confer the “possibility” of exercising decisive influence on an undertaking. The decisive influence is therefore the acquisition of that control in the formal sense, and not the actual exercise of such control’ (5). |
| --- | --- |

11.

| 12. | Article 4(1), first paragraph, of the Merger Regulation states that: ‘Concentrations with a [Union] dimension defined in this Regulation shall be notified to the Commission prior to their implementation and following the conclusion of the agreement, the announcement of the public bid, or the acquisition of a controlling interest’. |
| --- | --- |

12.

| 13. | Article 7(1) of the Merger Regulation states that: ‘A concentration with a [Union] dimension as defined in Article 1, or which is to be examined by the Commission pursuant to Article 4(5), shall not be implemented either before its notification or until it has been declared compatible with the common market pursuant to a decision under Articles 6(1)(b), 8(1) or 8(2), or on the basis of a presumption according to Article 10(6).’ |
| --- | --- |

13.

| 14. | While both Articles 4(1) and 7(1) of the Merger Regulation are fundamental to the ex ante EU merger control system structure, they enshrine distinct legal principles and thereby play distinct and complementary roles within the context of the control of concentrations exercised by the Commission. |
| --- | --- |

14.

| 15. | Finally, Article 14(2)(a) and (b) of the Merger Regulation states that: ‘The Commission may by decision impose fines not exceeding 10 % of the aggregate turnover of the undertaking concerned within the meaning of Article 5 on the persons referred to in Article 3(1)(b) or the undertakings concerned where, either intentionally or negligently, they:






  (a) | fail to notify a concentration in accordance with Articles 4 or 22(3) prior to its implementation, unless they are expressly authorised to do so by Article 7(2) or by a decision taken pursuant to Article 7(3). |
| --- | --- | --- |

15.

(a)

fail to notify a concentration in accordance with Articles 4 or 22(3) prior to its implementation, unless they are expressly authorised to do so by Article 7(2) or by a decision taken pursuant to Article 7(3).

| (b) | implement a concentration in breach of Article 7’. |
| --- | --- |

(b)

implement a concentration in breach of Article 7’.

III.   APPLICATION TO THE CASE

| 16. | In October 2014 Altice entered into negotiations with Oi to purchase PT Portugal, culminating in the signing of the Transaction Agreement on 9 December 2014. |
| --- | --- |

16.

| 17. | The Transaction Agreement set out the principles by which Altice and Oi had agreed how the Target should conduct its operations between signing and closing. The relevant provisions included both a positive obligation to carry out PT Portugal’s activities in the ordinary course of business and in accordance with past practice unless approved by Altice; and a negative obligation not to undertake a broad range of corporate, competitive, and commercial actions without Altice’s prior consent. |
| --- | --- |

17.

| 18. | The Transaction Agreement foresaw a process with the submission of notices to to facilitate obtaining these approvals. In addition to these communications, there was frequent and direct contact between Altice and PT Portugal via telephone calls, emails and meetings. PT Portugal sought consent from Altice on a wide range of issues; reported on the progress of various on-going matters as well as providing detailed and granular financial information. In addition, Oi sought Altice’s input and consent on matters that were not within the remit of the Transaction Agreement. Moreover, PT Portugal shared confidential information with Altice regarding many facets of its business during meetings in February and March 2015 and also provided Altice with detailed financial and weekly key performance indicator (‘KPI’) data. This information, which Altice accepted, was granular, non-historic and by its nature, individualised. |
| --- | --- |

18.

| 19. | The exchange of information took place between various PT Portugal and Altice executives without any safeguards — such as confidentiality agreements, non-disclosure agreements, or so-called clean team arrangements (6) - being put in place. |
| --- | --- |

19.

| 20. | Much of this conduct by Altice, Oi and PT Portugal took place against the backdrop of pre-notification discussions and the Commission’s Phase I investigation of the Transaction following which the Commission concluded that the Transaction raised serious doubts as to its compatability with the single market. In order to remedy the concerns the Commission had regarding this merger between competitors, Altice ultimately committed to divest Cabovisão and ONI, which essentially constituted the whole of Altice’s businesses in Portugal. |
| --- | --- |

20.

| 21. | As set out in detail below, the Commission concludes that the elements described above granted Altice the possibility to exercise decisive influence and/or resulted in the actual exercise of control over PT Portugal prior to the adoption of the Clearance Decision and in some instances prior to notification, in breach of both Article 7(1) and Article 4(1) of the Merger Regulation. |
| --- | --- |

21.

IV.   BREACH OF ARTICLE 7(1) MERGER REGULATION

a.   The Transaction Agreement

| 22. | The Transaction Agreement constituted an agreement by Oi to not take certain actions regarding the PT Portugal business without Altice’s prior consent. The Commission concludes that the Transaction Agreement therefore conferred upon Altice the ability to determine PT Portugal’s actions with regard to the items listed in the Transaction Agreement. |
| --- | --- |

22.

| 23. | The Commission recognises that it is both common and appropriate for clauses aimed at protecting the value of an acquired business between the signing of a purchase agreement and closing to be included in sale and purchase agreements. Consequently, as noted by Altice, the Ancillary Restraints Notice (7) envisages that agreements to abstain from material changes to the target’s business until closing can be considered directly related and necessary to the implementation of a concentration. However, such an agreement between the seller and the buyer which grants the buyer the possibility to exercise decisive influence over the target prior to clearance is only justified if strictly limited to that which is necessary to ensure that the value of the target is maintained. |
| --- | --- |

23.

| 24. | The Commission concludes that the Altice’s veto rights contained in the Transaction Agreement over: (i) the appointment of the PT Portugal’s senior management staff; (ii) PT Portugal’s pricing policy and commercial terms and conditions with customers; and (iii) the ability to enter, terminate or modify a wide range of PT Portugal’s contracts; individually and collectively gave Altice a legal right to intervene in the Target’s business beyond that which was necessary to guarantee maintenance of the value of the Target between signing and closing and gave Altice the possibility to exercise decisive influence over the Target. |
| --- | --- |

24.

i.   The possibility for Altice to influence the appointment of the Target’s senior management staff

| 25. | Under Articles 6.1(b)(xviii) and (xx) of the Transaction Agreement, without Altice’s prior written consent, PT Portugal could not appoint any new director or officer, or terminate or amend the terms of their contracts. |
| --- | --- |

25.

| 26. | The Commission considers that the rights in the Transaction Agreement were extremely broad and covered an undefined class of personnel not all of whom are likely to be relevant to the value of the business. In addition, it afforded Altice the possibility to co-determine the structure of the senior management of the Target, such as the appointment of the members of the board. |
| --- | --- |

26.

| 27. | As such, the Commission considers that the veto rights contained in Articles 6.1(b)(xviii) and (xx), independently and together with the other veto rights discussed in this decision, conferred upon Altice the power to exercise decisive influence over the Target’s senior management and therefore its commercial policy. Such a provision went beyond simply protecting the value of the Target and gave Altice the possibility to exercise decisive influence over the Target. |
| --- | --- |

27.

ii.   The possibility for Altice to influence the Target’s pricing policies

| 28. | Under Article 6.1(b)(xxvi) of the Transaction Agreement, without Altice’s consent, PT Portugal could not modify its pricing policies or standard offer prices, or amend any existing standard terms and conditions with customers, subject to certain limitations. |
| --- | --- |

28.

| 29. | The requirement to obtain Altice’s consent prior to modifying its pricing policies and standard offer prices inherently reduced the Target’s discretion and ability to act independently on the market. The Commission therefore concludes that Altice’s veto right over the Target’s commercial decisions goes beyond what was necessary to guard against material changes to the Target’s business for the purposes of preserving its value. Moreover, the Commission notes that Article 6.1(b)(xxvi) was extremely broad and gave Altice a veto right over a large proportion of PT Portugal’s pricing decisions and terms of business with its customers. |
| --- | --- |

29.

| 30. | The Commission therefore considers that the veto rights contained in Article 6.1(b)(xxvi), independently and together with the other veto rights discussed in this decision, conferred upon Altice the power to determine the Target’s commercial policy. Such a provision therefore goes beyond simply protecting the value of the Target, and gave Altice the possibility to exercise decisive influence over the Target. |
| --- | --- |

30.

iii.   The possibility for Altice to influence the Target entering into, terminating or modifying contracts

| 31. | Under Articles 6.1(b)(ii), (iii) and (ix) of the Transaction Agreement, without Altice’s prior written consent, PT Portugal could not enter into any transaction or commitment, assume or incur any liability, or acquire any assets, if such transaction surpassed a certain monetary threshold. Under Articles 6.1(b)(vii) and (xxvii) of the Transaction Agreement, without Altice’s prior written consent, PT Portugal could not enter into, terminate or modify any agreement which fell within certain definitions. |
| --- | --- |

31.

| 32. | The Commission considers that the breadth of actions covered, as well as the definitions used and applicable monetary thresholds, meant that Altice had oversight of an extremely broad range of actions (including matters that fell within PT Portugal’s ordinary course of business), not all of which would have had a material impact on the value of the PT Portugal business. |
| --- | --- |

32.

| 33. | Accordingly, the Commission concludes that the veto rights contained in Article 6.1(b)(ii), (iii), (ix), (vii) and (xxvii), independently and together with the other veto rights discussed in this decision, conferred upon Altice the power to determine the Target’s commercial policy. Such a provision therefore goes beyond simply protecting the value of the Target, and gave Altice the possibility to exercise decisive influence over the Target. |
| --- | --- |

33.

b.   Altice’s influence over the target

| 34. | The Commission found that in a number of instances, as described below, the PT Portugal sought Altice’s instructions and agreed to implement, or actually implemented Altice’s instructions in relation to commercial decisions prior to the date of notification and/or prior to the date of the Clearance Decision. |
| --- | --- |

34.

i.   The Post-Paid Mobile Campaign

| 35. | Between January and March 2015, PT Portugal ran a promotional campaign (‘Post-Paid Campaign’) aimed at reducing customer churn in the B2C retail mobile segment. The Commission found that Altice was involved in the decision making process at PT Portugal as regards the Post-Paid Campaign which formed part of the Target’s commercial strategy on the market. Altice played an essential role in the approval, modalities and monitoring of the Post-Paid Campaign. Given the targets and the budget of the campaign, the Commission found that Altice’s involvement with the Campaign could not be justified on reasons of preserving the value of PT Portugal. |
| --- | --- |

35.

ii.   Porto Canal contract

| 36. | As of 18 December 2014 (8), PT Portugal commenced an internal assessment of a possible renewal of the distribution contract for the Porto Canal TV channel. The Commission considers that Altice was directly involved in setting the targets and the negotiating strategy regarding the renewal of PT Portugal’s contract with Porto Canal which formed part of the Target’s competitive strategy on the market, a market in which Altice was itself competing via its subsidiaries. The Commission found that Altice’s involvement with this contract, given its value and subject matter (renewal of a TV contract), could not be justified on reasons of preserving the value of PT Portugal. |
| --- | --- |

36.

iii.   Selection of RAN supplier

| 37. | PT Portugal had several radio access network (‘RAN’) suppliers. PT Portugal wished to reduce the number of suppliers. The Commission found that Altice was directly involved in establishing PT Portugal’s selection process for RAN suppliers, which formed part of the Target’s competitive strategy on the market. Altice interfered in PT Portugal’s negotiation strategy and gave instructions to PT Portugal to wait with the selection process and to exchange information on the matter, as a result of which PT Portugal changed its selection process strategy; and, PT Portugal implemented these instructions, notably by suspending the selection process and providing commercially sensitive information to Altice. The Commission considers that Altice’s involvement went beyond what could reasonably be considered as necessary for preserving the value of PT Portugal. |
| --- | --- |

37.

iv.   Video on Demand/Electronic sell through contract

| 38. | PT Portugal and Cinemundo planned on entering into a two-year agreement for the supply of various movies to PT Portugal’s video on demand (‘VOD’) platform. The Commission found that Altice was directly involved in defining the terms for the negotiation of a supply agreement between PT Portugal and Cinemundo, which formed part of the Target’s competitive strategy on the market, a market in which Altice was itself competing via its subsidiaries. Considering the value and subject matter of this contract, Altice’s involvement with this matter went beyond what could reasonably be considered as necessary for preserving the value of PT Portugal. |
| --- | --- |

38.

v.   DOG TV contract

| 39. | Since November 2014, PT Portugal considered whether it should sign a contract with World Channels, the distributor of DOG TV, a premium TV channel specifically dedicated to dogs. Altice’s consent in relation to this contract was requested by PT Portugal and Altice denied its consent and asked for more information on the contract. The Commission found that that Altice was directly involved in the decision whether to include the DOG TV channel in PT Portugal’s TV offering, which formed part of the Target’s competitive strategy on the market, a market in which Altice was itself competing via its subsidiaries. Considering the value and subject matter of this contract, Altice’s involvement with this matter went beyond what could reasonably be considered as necessary for preserving the value of PT Portugal. |
| --- | --- |

39.

vi.   SIRESP shares

| 40. | SIRESP is the operator of the National Network of Public Safety, a public-private partnership promoted by the Ministry of Interior in Portugal. At the relevant time, SIRESP was owned by PT Portugal, Galilei (a Portuguese investment fund), Motorola, and two other smaller shareholders. On 4 March 2015, one shareholder sent a letter of intent to each of the other SIRESP shareholders, including PT Portugal, setting out the terms on which it would be prepared to acquire the shares of each of the other shareholders. Oi informed Altice that it did not intend to sell PT Portugal’s shares in SIRESP, nor exercise its pre-emptive rights. Oi then enquired whether Altice had a different view on this issue. Altice indicated to Oi that it did not plan to sell the shares. The Commission does not take issue with this exchange, as this was a corporate matter which could have potentially affected the value of the Target. |
| --- | --- |

40.

| 41. | However, Altice went further and asked PT Portugal to get in contact with one of SIRESP’s shareholders in order to inquire whether it would be interested in selling its shares in SIRESP to Altice/PT Portugal. The Commission considers that by instructing PT Portugal to contact one of SIRESP’s shareholders in its name, Altice overstepped the boundaries of what could be considered appropriate conduct necessary to preserve the value of PT Portugal. |
| --- | --- |

41.

vii.   Contract with a customer

| 42. | On 23 December 2014 PT Portugal won a tender for the provision of outsourcing services and solutions to a customer. Oi/PT Portugal asked for Altice’s consent for the signing of the contract and Altice requested more information on the matter. The Commission found that that Altice was directly involved in the decision whether to conclude the contract, which formed part of the Target’s competitive strategy on the market, a market in which Altice was itself competing via its subsidiaries. Given the value and nature of this contract, the Commission considers that Altice’s involvement with this matter went beyond what could reasonably be considered as necessary for preserving the value of PT Portugal. |
| --- | --- |

42.

viii.   Considerations on the relevance of decisions on which Altice’s consent was not requested

| 43. | In the reply to the SO and at the Hearing, Altice claimed that between the signing of the Transaction Agreement and the Clearance Decision, it was consulted only on a minority of decisions taken by PT Portugal and a great number of critical decisions pertaining to PT Portugal’s strategic and commercial policies were taken without Altice being consulted or even informed thereof. |
| --- | --- |

43.

| 44. | The Commission considers that it is not necessary for Altice to have been asked to provide its consent on all or a majority of matters discussed by the PT Portugal Board of directors or taken by the management of PT Portugal between signing of the Transaction Agreement and the Clearance Decision for Altice’s behaviour to constitute early implementation in the form of instances of actual exercise of control. Evidence on the Commission’s file shows that Altice’s consent was requested on a large number of other matters during the signing of the Transaction Agreement and the Clearance Decision (9). |
| --- | --- |

44.

ix.   Exchanges of commercially sensitive information

| 45. | Between the signing of the Transaction agreement and the closing, and a couple of months after the due diligence phase, the management of Altice and representatives of PT Portugal met three times in Lisbon. The Commission found that during these meetings, PT Portugal made extensive and granular presentations to Altice regarding the business of PT Portugal. PT Portugal shared with Altice granular and up-to-date information regarding its retail and wholesale business, including key financial data for the B2C and B2B segments. Furthermore, following these meetings, Altice requested and received from PT Portugal detailed and up-to-date information on key performance indicators (‘KPIs’) and future pricing of the Target. These exchanges involved the extended operational management of Altice and were conducted without any non-disclosure agreements in place. |
| --- | --- |

45.

| 46. | The Commission considers that these information exchanges which were conducted outside the due diligence phase, contribute to showing Altice exercised decisive influence over aspects of the Target’s business prior to the Commission having declared the Transaction compatible with the internal market. |
| --- | --- |

46.

c.   Conclusion on breach of Article 7(1) of the Merger Regulation

| 47. | The Commission considers that Altice acquired the possibility to exercise decisive influence, and actually exercised control prior to adoption of the Clearance Decision, and in some instances prior to notification, leading the Commission to the conclusion that the Transaction was implemented prior to the date on which the Commission adopted the Clearance Decision, and in some instances prior to notification, in breach of Article 7(1) of the Merger Regulation. |
| --- | --- |

47.

V.   BREACH OF ARTICLE 4(1) MERGER REGULATION

| 48. | As noted above, Article 7(1) and Article 4(1) of the Merger Regulation enshrine distinct legal principles. |
| --- | --- |

48.

| 49. | For the reasons set out below, the Commission considers that Altice breached Article 4(1) of the Merger Regulation. |
| --- | --- |

49.

| 50. | First, the Commission concludes that Article 6.1(b) of the Transaction Agreement regarding Altice’s veto right over the appointment of the Target’s senior management staff (Articles 6.1(b)(xviii) and (xx)), the setting of the Target’s pricing policies (Article 6.1(b)(xxvi)) and the conclusion, modification and termination of contracts (Articles 6.1(b)(ii), (iii), (ix), (vii), and (xxvii)) granted Altice the possibility to exercise decisive influence over the Target as of the signing of the Transaction Agreement on 9 December 2014. Given that this action took place prior to notification of the Transaction to the European Commission on 25 February 2015, the Commission concludes that this constitutes a breach of Article 4(1) of the Merger Regulation. |
| --- | --- |

50.

| 51. | Second, as detailed above, the Commission concludes that actions which Altice took following signing of the Transaction Agreements, when taken together, demonstrate that Altice actually exercised control over PT Portugal. Certain of these actions took place prior to notification of the Transaction to the European Commission on 25 February 2015, namely:






  (1) | The Post-paid Campaign: See paragraph 35 above; |
| --- | --- | --- |

51.

(1)

The Post-paid Campaign: See paragraph 35 above;

| (2) | The VOD/EST contract: See paragraph 38 above; and |
| --- | --- |

(2)

The VOD/EST contract: See paragraph 38 above; and

| (3) | The exchange of commercially strategic information at the meeting of 3 February 2015 between the management of Altice and the management of PT Portugal, as further described in paragraph 46 above. |
| --- | --- |

(3)

The exchange of commercially strategic information at the meeting of 3 February 2015 between the management of Altice and the management of PT Portugal, as further described in paragraph 46 above.

| 52. | Accordingly, the Commission concludes that Altice breached its notification obligations under Article 4(1) of the Merger Regulation. |
| --- | --- |

52.

VI.   PROCEDURE

a.   Altice’s arguments

| 53. | In the response to the SO Altice raised procedural claims, alleging a breach of the fundamental principles of due process, in particular the rights of the defence. |
| --- | --- |

53.

| 54. | First, according to Altice the Commission infringed Altice’s right to be heard and the duty of good administration by not taking Oi’s interpretation of the Transaction Agreement into account, given that Oi was the only party to the Transaction Agreement able to determine which matters should be submitted to Altice, whereas Altice’s role was ‘purely passive’. |
| --- | --- |

54.

| 55. | Second, according to Altice by imputing the alleged infringement to Altice, the Commission breached the fundamental principle of personal liability according to which a natural or legal person may be penalized only for acts imputed to it individually. Altice formally requested the Commission to consult Oi on its interpretation of the Transaction Agreement and to open proceedings against Oi. |
| --- | --- |

55.

| 56. | In the reply to the Letter of Facts, Altice criticised the Commission’s RFI to Oi (10) and claimed that the procedural breaches identified in the response to the SO were not solved by the RFI to Oi. In particular, Altice claimed that Oi’s reply would need to be verified and supported by documentary evidence. |
| --- | --- |

56.

| 57. | Third, according to Altice the Commission infringed the principles of necessity and proportionality as several RFIs represented an excessive burden for Altice: (i) the time-limits to answer certain RFIs were excessively short and disproportionate to the needs of the investigation; and, (ii) the Commission requested Altice to provide a number of documents in the RFI of 20 July 2016, most of which had already been included in the email data provided by Altice in response to previous RFIs. |
| --- | --- |

57.

b.   The Commission’s assessment

| 58. | The interpretation that Oi gave to the Transaction Agreement and the reasons for which Oi decided to seek the consent of Altice have no bearing on the existence of the infringements of Articles 4(1) and of Article 7(1) of the Merger Regulation which are based on actual conduct of Altice. The existence of the infringement could be validly established without obtaining the interpretation that Oi gave to the Transaction Agreement and the reasons for which Oi decided to seek the consent of Altice on certain matters. |
| --- | --- |

58.

| 59. | In fact, Altice had an active role in the drafting and implementation of the Transaction Agreement and had knowledge of the subject-matters on which its consent was requested. Altice negotiated and acted as a signatory of the Transaction Agreement which granted a legal right for Altice to deny its consent for Oi and PT Portugal to perform certain decisions. In practice, Altice reacted to Oi’s and PT Portugal’s approaches, inter alia, by: (i) accepting commercially sensitive information (rather than distancing itself from it); (ii) asking for further information where necessary; (iii) giving instructions to Oi and/or PT Portugal on how they should proceed; and (iv) monitoring implementation of matters brought to Altice’s attention. Altice’s conduct further indicates that it had sufficient knowledge of the subject-matters on which its consent was requested. |
| --- | --- |

59.

| 60. | In any event, in light of Altice’s claims in the response to the SO, and for the sake of completeness, the Commission has sought Oi’s views on the Transaction Agreement and its implementation (11). Therefore, Altice’s rights of the defense have been respected. |
| --- | --- |

60.

| 61. | Furthermore, on the basis of the documentary evidence presented in the draft decision (supported by the confirmations provided by Oi), the evidence is sufficiently precise and coherent to establish to the requisite legal standard that the infringement by Altice took place. The Commission therefore does not consider that it should have required Oi to support its reply by documentary evidence (12). |
| --- | --- |

61.

| 62. | Finally, the Commission is not penalising Altice for acts imputed to Oi. The infringement in this decision is based on the rights granted to Altice by virtue of the Transaction Agreement and/or Altice’s actual conduct between signing of the Transaction Agreement and the Clearance Decision and, Altice had an active role in the drafting and the implementation of the Transaction Agreement. As to Altice’s request that the Commission open proceedings against Oi, the Commission recalls that, even if an infringement were committed by Oi, the Commission has no obligation to pursue an infringement against Oi. |
| --- | --- |

62.

| 63. | The Commission granted Altice sufficient time to provide its response to the RFIs considering the scope of these RFIs. In addition, for certain RFIs Altice did not explore the possibility of seeking an extension of the deadline or challenge the requests for information by decision adopted on the basis of Article 11(3) of the Merger Regulation, before the EU Courts. In the RFI of 20 July 2016 the Commission requested Altice to provide explanations of the contents of some of the documents provided by Altice (13); however, the Commission did not ask Altice to provide the same documents already provided by Altice in response to previous RFIs. |
| --- | --- |

63.

VII.   FINES

a.   Nature of the infringement

| 64. | In line with EU case-law (14), the Commission considers that any infringement of Article 4(1) and Article 7(1) of the Merger Regulation is, by nature, a serious infringement. |
| --- | --- |

64.

| 65. | First, Altice implemented a concentration with a Union dimension as of 9 December 2014 in contravention of Articles 4(1) and 7(1) of the Merger Regulation. Second, violations of Articles 4(1) and 7(1) of the Merger Regulation occur irrespective of the positive outcome of the merger review procedure carried out by the Commission. Third, the legislator has determined that breaches of Articles 4(1) and 7(1) of the Merger Regulation may be as serious as breaches of Articles 101 and 102 TFEU by having set the same maximum fine thresholds in each of the applicable regulations (the Merger Regulation and Regulation (EC) No 1/2003). |
| --- | --- |

65.

b.   Gravity of the infringement

| 66. | The Commission concludes that Altice acted at least negligently infringed Article 4(1) and Article 7(1) of the Merger Regulation. First, Altice is a large European company with significant previous experience in merger transactions and, prior to the Transaction, had been involved in merger control proceedings at national level. Second, Altice carefully negotiated the Transaction Agreement with Oi and, according to Altice itself, it included the contested provisions in the Transaction Agreement specifically to safeguard its own financial interests. Third, the existence of similar precedents has no bearing on the gravity of the infringement. Fourth, the Commission considers that Altice knew or should have known that infringing behaviour would constitute an infringement of the notification requirement and/or the standstill obligation. |
| --- | --- |

66.

| 67. | The Commission considers that the fact that the Transaction gave rise to serious doubts as to its compatibility with the internal market is in itself a factor which makes the infringement more serious (15). Altice’s acquisition of PT Portugal was cleared following the submission of wide-ranging remedies to remove the serious doubts raised by the Transaction. In such cases, ensuring legal certainty and a high level of deterrence is important regardless of the merits of an ex post assessment. |
| --- | --- |

67.

c.   The duration of the infringement

| 68. | With regard to the infringement of Article 4(1), such an infringement is an instantaneous infringement, which is committed by failing to notify a concentration. Therefore, the infringement was committed on 9 December 2014. |
| --- | --- |

68.

| 69. | With regard to the infringement of Article 7(1) of the Merger Regulation, this is a continuous infringement which lasts for as long as the transaction is not cleared by the Commission. Therefore the infringement lasted from the signing of the Transaction Agreement on 9 December 2014 until clearance on 20 April 2015 (that is 4 months and 11 days). |
| --- | --- |

69.

d.   Mitigating and aggravating circumstances

| 70. | The Commission does not consider there to be any aggravating or mitigating circumstances in this case. |
| --- | --- |

70.

VIII.   AMOUNT OF THE FINES

| 71. | When imposing penalties, the Commission takes into account the need to ensure that fines have a sufficiently deterrent effect. In the case of an undertaking of the size of Altice, the amount of the penalty must be significant in order to have a deterrent effect. This is even more the case when the transaction which has been implemented before clearance raised serious doubts as to its compatibility with the internal market. |
| --- | --- |

71.

| 72. | In order to impose a penalty for the infringement and prevent it from recurring, therefore, and given the specific circumstances of the case at hand and, in particular, the nature, the gravity and the duration of the infringements discussed in Section 6 above, the Commission considers it appropriate to impose fines under Article 14(2) of the Merger Regulation of EUR 62 250 000 for the infringement of Article 4(1) of the Merger Regulation and of EUR 62 250 000 for the infringement of Article 7(1) of the Merger Regulation. |
| --- | --- |

72.

---

(1)  Altice S.A., a company incorporated in Luxembourg, was the notifying party in the case M.7499 – Altice/PT Portugal. On 6 August 2015, Altice S.A., the former holding company of Altice Group transferred substantially all assets and liabilities to its wholly owned subsidiary Altice Luxembourg S.A. On 9 August 2015, Altice S.A. merged with Altice N.V., the new holding company of Altice Group. As a result of the merger, Altice S.A. ceased to exist.

(2)  Altice Portugal S.A. was a wholly-owned subsidiary of Altice S.A. In the Transaction Agreement, Altice Portugal S.A. was identified as the ‘buyer’ and Altice S.A. was identified as the guarantor for the Transaction.

(3)  The Transaction had a Union dimension within the meaning of Article 1(2) of the Merger Regulation.

(4)  Article in Diário Económico of 26 February 2015: http://economico.sapo.pt/noticias/altice-ja-esta-na-pt-portugal-para-assumir-controlo-da-empresa_212789.html. ID[153]

(5)  Marine Harvest, paragraph 58.

(6)  The term clean team generally refers to a restricted group of individuals from the business that are not involved in the day-to-day commercial operation of the business who receive confidential information from the counter party to the transaction and are bound by strict confidentiality protocols with regard to that information.

(7)  Commission Notice on restrictions directly related and necessary to concentrations (OJ C 56, 5.3.2005, p. 24).

(8)  According to Altice, around the end of 2014 and beginning of 2015, Porto Canal approached PT Portugal in order to renegotiate its distribution contract.

(9)  The Commission also found that Oi had in fact requested Altice’s consent through formal notices/letters on seven of the decisions taken by PT Portugal on which Altice had claimed that it had not been consulted or even informed thereof.

(10)  On 6 October 2017, the Commission addressed an RFI to Oi. Oi responded on 20 October 2017. Oi’s reply was shared with Altice by the Commission in the Letter of Facts.

(11)  See para. 56 of this Note.

(12)  Furthermore, despite the investigatory steps that it has taken, the Commission has not identified and Altice has not provided any indication of the existence of any exculpatory evidence that would put the Commission’s conclusions into question.

(13)  To the extent that Altice considered that the relevant answer was in a document already provided, Altice could simply have referred to that document already provided as the Commission allowed Altice, if it wished to refer to documents already in the Commission’s possession, to make reference to these documents. Therefore, there was no obligation on Altice to submit documents already submitted.

(14)  Case T-704/14, Marine Harvest v. European Commission ECLI:EU:T:2017:753, paragraph 480; case Case T-332/09, Electrabel v European Commission ECLI:EU:T:2012:672, paragraph 235.

(15)  Case T-704/14, Marine Harvest v. European Commission ECLI:EU:T:2017:753, paragraphs 490 et seq.

---

Court of Auditors

| 7.9.2018 | EN | Official Journal of the European Union | C 315/20 |
| --- | --- | --- | --- |

7.9.2018

EN

Official Journal of the European Union

C 315/20

---

Special Report No 21/2018

‘Selection and monitoring for ERDF and ESF projects in the 2014-2020 period are still mainly outputs-oriented’

(2018/C 315/09)

The European Court of Auditors hereby informs you that Special Report No 21/2018 ‘Selection and monitoring for ERDF and ESF projects in the 2014-2020 period are still mainly outputs-oriented’ has just been published.

The report can be accessed for consultation or downloading on the European Court of Auditors' website: http://eca.europa.eu

---

V Announcements

ADMINISTRATIVE PROCEDURES

European Commission

| 7.9.2018 | EN | Official Journal of the European Union | C 315/21 |
| --- | --- | --- | --- |

7.9.2018

EN

Official Journal of the European Union

C 315/21

---

Calls for proposals and related activities under the ERC Work Programme 2019 under Horizon 2020 — the Framework Programme for Research and Innovation (2014-2020)

(2018/C 315/10)

Notice is hereby given of the launch of calls for proposals and related activities under the ERC Work Programme 2019 under Horizon 2020 — the Framework Programme for Research and Innovation (2014-2020).

The Commission has adopted the ERC Work Programme 2019 (http://ec.europa.eu/research/participants/data/ref/h2020/wp/2018-2020/erc/h2020-wp19-erc_en.pdf) by Decision C(2018) 5200 of 6 September 2018.

Proposals are invited for these calls. The ERC Work Programme 2019, including deadlines and budgets, is available through the Participant Portal website along with information on the modalities of the calls and related activities and the information for applicants on how to submit proposals:

http://ec.europa.eu/research/participants/portal/desktop/en/home.html

---

PROCEDURES RELATING TO THE IMPLEMENTATION OF THE COMMON COMMERCIAL POLICY

European Commission

| 7.9.2018 | EN | Official Journal of the European Union | C 315/22 |
| --- | --- | --- | --- |

7.9.2018

EN

Official Journal of the European Union

C 315/22

---

Notice of the expiry of certain anti-subsidy measures

(2018/C 315/11)

Further to the publication of a notice of impending expiry (1) following which no duly substantiated request for a review was lodged, the Commission gives notice that the anti-subsidy measure mentioned below will expire.

This notice is published in accordance with Article 18(4) of Regulation (EU) 2016/1037 of the European Parliament and of the Council of 8 June 2016 on protection against subsidised imports from countries not members of the European Union (2).

| Product | Country(ies) of origin or exportation | Measures | Reference | Date of expiry (3) |
| --- | --- | --- | --- | --- |
| Stainless steel wires | India | Anti-subsidy duty | Council Implementing Regulation (EU) No 861/2013 of 2 September 2013 imposing a definitive countervailing duty and collecting definitively the provisional duty imposed on imports of certain stainless steel wires originating in India (OJ L 240, 7.9.2013, p. 1). | 8.9.2018 |

Product

Country(ies) of origin or exportation

Measures

Reference

Date of expiry (3)

Stainless steel wires

India

Anti-subsidy duty

Council Implementing Regulation (EU) No 861/2013 of 2 September 2013 imposing a definitive countervailing duty and collecting definitively the provisional duty imposed on imports of certain stainless steel wires originating in India (OJ L 240, 7.9.2013, p. 1).

8.9.2018

---

(1)  OJ C 14, 16.1.2018, p. 10.

(2)  OJ L 176, 30.6.2016, p. 55.

(3)  The measure will expire at midnight of the day mentioned in this column.

---

PROCEDURES RELATING TO THE IMPLEMENTATION OF COMPETITION POLICY

European Commission

| 7.9.2018 | EN | Official Journal of the European Union | C 315/23 |
| --- | --- | --- | --- |

7.9.2018

EN

Official Journal of the European Union

C 315/23

---

Prior notification of a concentration

(Case M.9052 — Kirin/Mitsui/Thorne)

Candidate case for simplified procedure

(Text with EEA relevance)

(2018/C 315/12)

1.

This notification concerns the following undertakings:

| — | Kirin Holdings Company, Limited (‘Kirin’, Japan), |
| --- | --- |

—

Kirin Holdings Company, Limited (‘Kirin’, Japan),

| — | Mitsui & Co., Ltd (‘Mitsui’, Japan), |
| --- | --- |

—

Mitsui & Co., Ltd (‘Mitsui’, Japan),

| — | Thorne Holding Corporation (‘Thorne’, United States), controlled by West View Capital Partners and Tudor Venture Partners. |
| --- | --- |

—

Thorne Holding Corporation (‘Thorne’, United States), controlled by West View Capital Partners and Tudor Venture Partners.

Kirin and Mitsui acquire within the meaning of Article 3(1)(b) of the Merger Regulation joint control of the whole of Thorne. The concentration is accomplished by way of a purchase of shares.

2.

—   for Kirin: engaging in pharmaceutical, biotechnology and integrated beverages businesses,

—   for Mitsui: a trading house engaging in a number of worldwide commodity and other businesses, including the sale, distribution, purchase, marketing and supply of products in business areas such as iron and steel, coal and non-ferrous metals, machinery, electronics, chemicals and energy-related commodities,

—   for Thorne: developing, manufacturing and selling high-end nutritional supplements, mainly to healthcare practitioners in the United States. Thorne also sells animal nutritional supplements and self-diagnostic tests for at-home detection of various health problems.

3.

Pursuant to the Commission Notice on a simplified procedure for treatment of certain concentrations under the Council Regulation (EC) No 139/2004 (2) it should be noted that this case is a candidate for treatment under the procedure set out in the Notice.

4.

Observations must reach the Commission not later than 10 days following the date of this publication. The following reference should always be specified:

M.9052 — Kirin/Mitsui/Thorne

Observations can be sent to the Commission by email, by fax, or by post. Please use the contact details below:

| Email: COMP-MERGER-REGISTRY@ec.europa.eu |
| --- |
| Fax +32 22964301 |
| Postal address: |
| European Commission |
| Directorate-General for Competition |
| Merger Registry |
| 1049 Bruxelles/Brussel |
| BELGIQUE/BELGIË |

Email: COMP-MERGER-REGISTRY@ec.europa.eu

Fax +32 22964301

Postal address:

European Commission

Directorate-General for Competition

Merger Registry

1049 Bruxelles/Brussel

BELGIQUE/BELGIË

---

(1)  OJ L 24, 29.1.2004, p. 1 (the ‘Merger Regulation’).

1

(2)  OJ C 366, 14.12.2013, p. 5.

2

---

| 7.9.2018 | EN | Official Journal of the European Union | C 315/25 |
| --- | --- | --- | --- |

7.9.2018

EN

Official Journal of the European Union

C 315/25

---

Prior notification of a concentration

(Case M.8952 — STEAG/Siemens/JV STEAG GuD)

(Text with EEA relevance)

(2018/C 315/13)

1.

This notification concerns the following undertakings:

| — | Siemens Project Ventures GmbH (‘Siemens’, Germany), part of the Siemens Group (Germany) |
| --- | --- |

—

Siemens Project Ventures GmbH (‘Siemens’, Germany), part of the Siemens Group (Germany)

| — | STEAG Beteiligungsgesellschaft mbH (‘STEAG’, Germany) |
| --- | --- |

—

STEAG Beteiligungsgesellschaft mbH (‘STEAG’, Germany)

| — | STEAG GuD Herne, the joint venture (‘JV’, Germany). |
| --- | --- |

—

STEAG GuD Herne, the joint venture (‘JV’, Germany).

Siemens and STEAG acquire within the meaning of Article 3(1)(b) and Article 3(4) of the Merger Regulation joint control of the JV. The concentration is accomplished by way of purchase of shares, whereby Siemens acquires 50 % of the shares and voting rights in the JV from its current sole owner, STEAG.

2.

| — | STEAG is an international energy supplier, which is active in the generation and supply of electricity and district heating, as well as the project development, construction and operation of power plants and relating technical services, |
| --- | --- |

—

STEAG is an international energy supplier, which is active in the generation and supply of electricity and district heating, as well as the project development, construction and operation of power plants and relating technical services,

| — | Siemens is a global technology group focused on electrification, automation and digitisation in particular concerning power generation and transmission, medical, infrastructure and industrial applications, |
| --- | --- |

—

Siemens is a global technology group focused on electrification, automation and digitisation in particular concerning power generation and transmission, medical, infrastructure and industrial applications,

| — | The JV will build and operate a gas and steam turbine power plant in Herne (Germany), and market the generated electricity and heat. |
| --- | --- |

—

The JV will build and operate a gas and steam turbine power plant in Herne (Germany), and market the generated electricity and heat.

3.

On preliminary examination, the Commission finds that the notified transaction could fall within the scope of the Merger Regulation. However, the final decision on this point is reserved.

4.

Observations must reach the Commission not later than 10 days following the date of this publication. The following reference should always be specified:

M.8952 — STEAG/Siemens/JV STEAG GuD

Observations can be sent to the Commission by email, by fax, or by post. Please use the contact details below:

| Email: COMP-MERGER-REGISTRY@ec.europa.eu |
| --- |
| Fax +32 22964301 |
| Postal address: |
| European Commission |
| Directorate-General for Competition |
| Merger Registry |
| 1049 Bruxelles/Brussel |
| BELGIQUE/BELGIË |

Email: COMP-MERGER-REGISTRY@ec.europa.eu

Fax +32 22964301

Postal address:

European Commission

Directorate-General for Competition

Merger Registry

1049 Bruxelles/Brussel

BELGIQUE/BELGIË

---

(1)  OJ L 24, 29.1.2004, p. 1 (the ‘Merger Regulation’).

1

---