Opinion of the Advocate General — ECLI:EU:C:2019:795
Date: 2019-09-26
Language of the case: English
Subject matter: Competition;Agreements, decisions and concerted practices
Procedure: Action for annulment;Appeal - unfounded;Appeal - inadmissible
Origin: United Kingdom

Summary of the replies received to the Green Paper that it is difficult to determine ‘when the notification obligation arises in a creeping takeover’ (in other words, which share is the ‘tipping’ share whose acquisition confers control of the target undertaking). For those reasons, Regulation No 139/2004 extended the scope of the exemption from the standstill obligation to series of transactions in securities. See Green Paper on the Review of Regulation No 4064/89, presented by the Commission on 11 December 2001 (‘the Green Paper’) (COM(2001) 745 final), and the Summary of the Replies received to the Green Paper, available on the website of the Commission’s Directorate-General for Competition. 30 I should specify that the Commission did not raise before the Court the inadmissibility of the plea alleging infringement of the principle ne bis in idem, or of the plea alleging infringement of the principles governing concurrent offences. 31 That is, Opinions of Advocate General Sharpston in Kraaijenbrink (C‑367/05, EU:C:2006:760, points 56, 58 and 61), and of Advocate General Bot in Beneo-Orafti (C‑150/10, EU:C:2011:164, footnote 43). 32 I recall that the plea alleging infringement of the set-off principle is raised in the alternative, that is, if the Court considers that there is no infringement of the principle ne bis in idem. 33 Judgments of 15 October 2002, Limburgse Vinyl Maatschappij and Others v Commission (C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P, EU:C:2002:582, paragraph 59); of 14 February 2012, Toshiba Corporation and Others (C‑17/10, EU:C:2012:72, paragraph 94); and of 3 April 2019, Powszechny Zakład Ubezpieczeń na Życie (C‑617/17, EU:C:2019:283, paragraph 28). 34 Judgments of 7 January 2004, Aalborg Portland and Others v Commission (C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6, paragraph 338), and of 14 February 2012, Toshiba Corporation and Others (C‑17/10, EU:C:2012:72, paragraph 97). For the sake of completeness, I should specify that the relevance of the third condition mentioned in point 95 above, namely the unity of the legal interest protected, has been questioned. According to case-law, EU competition rules and national competition rules pursue ‘different ends’ (see judgment of 13 February 1969, Wilhelm and Others, 14/68, EU:C:1969:4, paragraph 11) and they protect, therefore, different legal interests. It follows that the principle ne bis in idem does not preclude that separate fines are imposed on the same undertaking for the infringement of, on the one side, EU competition rules, and, on the other side, national competition rules. However, the relevance of the condition that the legal interest protected must be the same is disputed since, first, that condition is not applied in areas of EU law other than competition law (see Opinions of Advocate General Kokott in Toshiba Corporation and Others, C‑17/10, EU:C:2011:552, point 116, and of Advocate General Campos Sánchez-Bordona in Menci, C‑524/15, EU:C:2017:667, point 27), and, second, it is at odds with the increasing convergence of EU and national competition rules and with the decentralisation for the application of EU competition rules brought about by Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in [Articles 101 and 102 TFEU] (OJ 2003 L 1, p. 1) (see Opinion of Advocate General Kokott in Toshiba Corporation and Others, C‑17/10, EU:C:2011:552, points 121 to 123; Opinion of Advocate General Wahl in Powszechny Zakład Ubezpieczeń na Życie, C‑617/17, EU:C:2018:976, point 48; and Veenbrink, M., ‘Bringing Back Unity: Modernizing the Application of the Non Bis in Idem Principle’, World Competition, 2019, Volume 42, Issue 1, pp. 67 to 86). That question, however, does not arise in the present case, for the reason set out in point 101 below. 35 See the second sentence of Article 4(2) of Regulation No 139/2004. 36 See judgment of 31 May 2018, Ernst & Young (C‑633/16, EU:C:2018:371, paragraphs 41 and 42). 37 Judgment of 3 April 2019, Powszechny Zakład Ubezpieczeń na Życie (C‑617/17, EU:C:2019:283, paragraph 35). 38 The applicants, which were addressees of the first decision, submitted that the second procedure could result not only in fines for the Japanese suppliers, but also in new fines for them. 39 Judgment of 27 February 2014, LG Display and LG Display Taiwan v Commission (T‑128/11, EU:T:2014:88, paragraph 242). 40 Judgment of 15 October 2002 (C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P, EU:C:2002:582, paragraph 62). See also judgment of 1 July 2009, ThyssenKrupp Stainless v Commission (T‑24/07, EU:T:2009:236, paragraphs 190 and 191). The principle ne bis in idem would probably, however, preclude the resumption of proceedings if the Commission’s decision was annulled on substantive grounds, as this would amount to an ‘acquittal’ (judgment of 6 December 2012, Commission v Verhuizingen Coppens, C‑441/11 P, EU:C:2012:778, paragraph 24; and Opinion of Advocate General Kokott in Commission v Verhuizingen Coppens, C‑441/11 P, EU:C:2012:317, point 27). 41 Judgments of 18 December 2008, Coop de France Bétail et Viande and Others v Commission (C‑101/07 P and C‑110/07 P, EU:C:2008:741); of 21 July 2011, Beneo-Orafti (C‑150/10, EU:C:2011:507); and of 5 October 2011, Transcatab v Commission (T‑39/06, EU:T:2011:562). 42 Judgment of 21 July 2011, Beneo Orafti (C‑150/10, EU:C:2011:507, paragraphs 70 and 74). 43 Judgments of 18 December 2008, Coop de France Bétail et Viande and Others v Commission (C‑101/07 P and C‑110/07 P, EU:C:2008:741, paragraphs 128 and 130), and of 13 December 2006, FNCBV v Commission (T‑217/03 and T‑245/03, EU:T:2006:391, paragraphs 342 and 344). 44 Judgment of 5 October 2011, Transcatab v Commission (T‑39/06, EU:T:2011:562, paragraphs 254 to 259). The appeal brought against that judgment was dismissed (order of 13 December 2012, Transcatab v Commision, C‑654/11 P, not published, EU:C:2012:806). 45 Judgments of 13 February 1969, Wilhelm and Others (14/68, EU:C:1969:4, paragraph 11); of 6 April 1995, Sotralentz v Commission (T‑149/89, EU:T:1995:69, paragraph 29); and of 27 September 2006, Jungbunzlauer v Commission (T‑43/02, EU:T:2006:270, paragraph 290). 46 See footnote 34. 47 Judgments of 29 June 2006, Showa Denko v Commission (C‑289/04 P, EU:C:2006:431, paragraphs 57 to 60); of 29 June 2006, SGL Carbon v Commission (C‑308/04 P, EU:C:2006:433, paragraphs 33 to 36) ; of 10 May 2007, SGL Carbon v Commission (C‑328/05 P, EU:C:2007:277, paragraphs 31 to 34); and of 9 July 2015, InnoLux v Commission (C‑231/14 P, EU:C:2015:451, paragraph 75). 48 Judgments of 29 June 2006, Showa Denko v Commission (C‑289/04 P, EU:C:2006:431, paragraphs 50 to 56); of 29 June 2006, SGL Carbon v Commission (C‑308/04 P, EU:C:2006:433, paragraphs 28 to 32) ; of 10 May 2007, SGL Carbon v Commission (C‑328/05 P, EU:C:2007:277, paragraphs 24 to 30); and of 9 July 2015, InnoLux v Commission (C‑231/14 P, EU:C:2015:451, paragraph 75). 49 C‑367/05, EU:C:2006:760, point 58. 50 Judgment of 18 July 2007, Kraaijenbrink (C‑367/05, EU:C:2007:444). 51 See recitals 8 and 11, and Article 21(2) and (3) of Regulation No 139/2004. The Commission has exclusive jurisdiction to review concentrations with an EU dimension, that is, that meet the turnover thresholds provided for by Article 1(2) and (3) of that regulation (unless the Commission decides to refer a concentration to the competent authorities of a Member State under Article 4(4) or Article 9 of Regulation No 139/2004). 52 In the present case, the EU legal system, more precisely, Article 4(1) and Article 7(1) of Regulation No 139/2004. 53 See Brögelmann, ‘Methodik der Strafzumessung’, Juristische Schulung, 2002, p. 903 (see p. 905). 54 For instance, where the same conduct is caught by Paragraph 212 of the German Criminal Code, which prohibits murder, and by Paragraph 223 of that code, which prohibits causing bodily harm, only the former provision applies. See Schönke/Schröder Strafgesetzbuch, 30th edition, 2019, Vorbemerkungen zu den §§ 52 ff. 55 See Rassat, M.-L., Droit pénal général, Ellipses, 4th edition, 2017, paragraph 242. 56 See judgment of the Cour de cassation, chambre criminelle (Court of Cassation (criminal chamber), France) of 6 January 1999 (n° 98-80.730). 57 For instance, a person cannot be found guilty of, on the one hand, laundering the proceeds of fraud offences committed by his partner, and, on the other hand, concealment. Indeed, the fact that the funds obtained by fraud were paid into that person’s bank account, which amounts to the offence of concealment, was ‘no more than a preliminary step’ to the purchase, with those funds, of a property, which constitutes the offence of laundering of proceeds of fraud. Therefore, that person was found guilty only of laundering (see judgment of the Cour de cassation, chambre criminelle (Court of Cassation, (criminal chamber)) of 26 October 2016, n° 15-84.552). 58 See Dreyer, E., Droit pénal général, LexisNexis, 4th edition, 2016, paragraphs 632 and 633. 59 For instance, where the same persons hijack an aircraft and take the pilot, crew and passengers of that aircraft hostages, they may be found guilty of two offences, namely the hijacking of aircraft and the taking of hostages. Indeed, those offences protect different interests, respectively free movement in the airspace and the life of individuals and victims (see judgment of the Cour de cassation, chambre criminelle (Court of Cassation (criminal chamber)) of 27 November 2003, n° 83-93.975). 60 Custodial sentences are all of the same nature. Similarly, fines are all of the same nature. 61 See Pradel, J., Droit pénal général, Éditions Cujas, 20th edition, 2014, paragraph 342(4°). 62 See judgment of the Cour de cassation, chambre criminelle (Court of Cassation (criminal chamber)) of 9 December 2014 (n° 13-85.937). In that judgment, that court found, first, that the same conduct amounted to an infringement of, on the one side, the prohibition on unintentional homicide, and, on the other side, workers’ safety rules. Second, that court held that ‘separate penalties of the same nature could be imposed for those infringements, provided that, as is the case, their total amount does not exceed the highest legal maximum’. 63 I should emphasise that my proposal is strictly limited to the infringement, by the same conduct, of Article 4(1) and Article 7(1) of Regulation No 139/2004. It does not in any way affect the possibility, for the Commission, to impose more than one fine on the same undertaking where it finds several infringements, by that undertaking, of Article 101 TFEU. Indeed, the situation in the present case is one where the same conduct infringes multiple provisions of EU competition law, namely Article 4(1) and Article 7(1) of Regulation No 139/2004. The question, therefore, is whether those provisions define the same offence, or whether one subsumes the other, in which case both should not apply to the same conduct. By contrast, where the Commission imposes more than one fine on the same undertaking on the basis of Article 101 TFEU, this is because, by different conduct, that undertaking infringed more than once the same provision of EU competition law, namely the prohibition on agreements and concerted practices laid down in Article 101 TFEU. The question, in that case, is whether there are indeed multiple infringements of Article 101 TFEU, in which case multiple fines may be imposed; or whether the unlawful actions at issue constitute one and the same infringement of Article 101 TFEU, in which case only one fine may be imposed. That is an entirely different question from the one we are interested in. 64 According to that provision, fines may not exceed 10% of the aggregate turnover of the undertakings concerned. 65 Which would, I assume, imply that consistency with the proportionality principle (were it raised in a future case) would have to be assessed in respect of the total amount of the fines, not in respect of each fine taken individually. 66 See footnote 5 of the decision at issue. 67 That situation may arise, in particular, where the parties consider that their operation does not constitute a concentration for the purposes of Regulation No 139/2004 (for instance, because they acquired a minority shareholding which they regard as insufficient to confer control of the target), or that the concentration does not have an EU dimension. 68 Regulation of 30 June 1997 amending Regulation No 4064/89 (OJ 1997 L 180, p. 1). 69 See paragraph 182 of the Green Paper, cited at footnote 29 above. 70 See Levy, N., and Cook, C., European Merger Control Law: A Guide to the Merger Regulation, LexisNexis, 2003, paragraph 17.03[3]. 71 The Commission imposed fines for the implementation of a concentration before it was notified and declared compatible on five occasions: (i) Commission Decision of 18 February 1998 imposing fines for failing to notify and putting into effect a concentration in breach of Article 4(1) and Article 7(1) of Regulation No 4064/89 (Case IV/M.920) — Samsung/AST; (ii) Commission Decision of 10 February 1999 imposing fines for failing to notify and putting into effect three concentrations in breach of Article 4 and Article 7(1) of Regulation No 4064/89 (Case IV/M.969 — A.P.Møller); (iii) Commission Decision of 10 June 2009 imposing a fine for putting into effect a concentration in breach of Article 7(1) of Regulation No 4064/89 (Case COMP/M.4994 — Electrabel/Compagnie Nationale du Rhône); (iv) Commission Decision of 24 April 2018 imposing a fine for putting into effect a concentration in breach of Article 4(1) and Article 7(1) of Regulation No 139/2004 (Case M.7993 — Altice/PT Portugal); and (v) the decision at issue. Four of those decisions rely on the infringement of Article 4(1) along with Article 7(1) of Regulation No 4064/89 or No 139/2004; one on the infringement of Article 7(1) of Regulation No 4064/89 alone (the decision in Case M.4994 — Electrabel/Compagnie Nationale du Rhône); none on the infringement of Article 4(1) of Regulation No 4064/89 or No 139/2004 alone. I should specify that a sixth decision was adopted on 27 June 2019, whereby the Commission imposed on Canon a fine of EUR 28 million for partially implementing its acquisition of Toshiba Medical Systems Corporation. It seems that that fine penalises the infringement of Article 4(1) and Article 7(1) of Regulation No 139/2004, given that the Commission’s press release states that ‘Canon breached both the notification requirement and the standstill obligation’ (see Commission press release of 27 June 2019, IP/19/3429 — the decision has not been published yet). 72 That situation may arise, in particular, where the parties are unaware of what constitutes implementation for the purposes of Regulation No 139/2004, or where they erroneously consider that the exemption under Article 7(2) of that regulation applies. 73 Judgment of 31 May 2018, Ernst & Young (C‑633/16, EU:C:2018:371, paragraph 52). 74 I should note that paragraphs 363 to 371 of the judgment under appeal address the question whether ‘in general terms’ (see paragraph 371) and in the case-law of international courts, the principles governing concurrent offences preclude separate infringements from arising from the same conduct. The crucial question, however, is whether, for the purposes of Regulation No 139/2004, the principles governing concurrent offences preclude separate infringements from arising from the same conduct. 75 I should specify that, whereas, in its appeal before the Court, Marine Harvest submitted that the infringement of Article 4(1) of Regulation No 139/2004 takes precedence over the infringement of Article 7(1) of that regulation, it took the opposite position at the hearing and argued that the latter offence has a wider scope and, therefore, it subsumes the former, which is no more than an empty shell. 76 I should note, in that regard, that the General Court itself does not appear to be satisfied that the fact that there is no primarily applicable provision follows from the sole finding that the infringement of Article 4(1) of Regulation No 139/2004 does not take precedence over the infringement of Article 7(1) of that regulation. Indeed, in that case, there would have been no need for the General Court to rely also on the fact that the infringement of both provisions is subject to the same cap. 77 See order of 20 January 2009, Sack v Commission (C‑38/08 P, EU:C:2009:21, paragraphs 21 to 24).