Case T‑704/14

Marine Harvest ASA

v

European Commission

(Competition — Concentrations — Decision imposing a fine for putting into effect a concentration prior to its notification and authorisation — Article 4(1), Article 7(1) and (2) and Article 14 of Regulation (EC) No 139/2004 — Negligence — Principle ne bis in idem — Gravity of the infringement — Amount of the fine)

Summary — Judgment of the General Court (Fifth Chamber), 26 October 2017

Concentrations between undertakings — Fines — Amount — Determination — Criteria — Gravity of the infringement — Information needed for an assessment — Taking into account serious doubts as to the compatibility of the concentration with the internal market — Lawfulness

Concentrations between undertakings — Examination by the Commission — Obligation to suspend the concentration — Derogation in the event of acquisition of control acquired from various sellers in a series of transactions in securities — Scope

Concentrations between undertakings — Meaning — De facto sole control — Exercise by a minority shareholder — Criteria for assessment — Rights giving the possibility of exercising decisive influence on the undertaking’s activity — No exercise of decisive influence by those rights — Irrelevance

Concentrations between undertakings — Examination by the Commission — Obligation to suspend the concentration — Derogation in the case of public bids — Scope — Acquisition of control of the target undertaking by means of a single private acquisition followed by a mandatory public offer — No single concentration — Non-applicability of that derogation

Under Article 7(1) of Regulation No 139/2004 on the control of concentrations between undertakings, a concentration with a Community dimension is not to be implemented either before its notification or until it has been declared compatible with the internal market pursuant to a Commission decision. Article 7(2) of that regulation envisages two possible derogations from that obligation to suspend a concentration: one linked to a public bid, the other linked to a series of transactions in securities. According to the first situation as outlined in Article 7(2) of Regulation No 139/2004, paragraph 1 of that article is not to prevent the implementation of a public bid, provided that the concentration is notified without delay and the acquirer does not exercise its voting rights prior to clearance of the concentration. According to its wording, that first situation does not, consequently, apply in the case of the acquisition of control of an undertaking by means of a single private acquisition, even if that acquisition is followed by a mandatory public offer. Neither is it possible to take the view that such a private acquisition and the subsequent public offer constitute steps of a ‘single concentration’ within the meaning of the third sentence of recital 20 of Regulation No 139/2004 and of paragraph 44 of the Commission’s Consolidated Jurisdictional Notice under Regulation No 139/2004. It is true that control of a single undertaking by means of several legal transactions which are inter-conditional may constitute a single concentration. However, where the control of a target undertaking took place by means of an private transaction alone, before the public offer was launched, subsequent transactions by which the acquirer obtains additional shares in the target undertaking are no longer relevant for the purpose of acquiring control and thus of implementing the concentration. Moreover, if the acquisition of control by means of a single private transaction followed by a mandatory public offer constituted a single concentration, that would mean that, in the case of concentrations involving listed companies located in Member States, the private acquisition of securities conferring control would always be covered by the exception provided for in Article 7(2) of Regulation No 139/2004, in so far as such a private acquisition always involves the obligation to submit a public bid. The effect of that would be to overextend the scope of application of the exception provided for in Article 7(2) of Regulation No 139/2004. The concept of a single concentration is not, consequently, intended to apply in a situation in which sole de facto control of the only target company is acquired from one seller by means of a single initial private transaction, even where it is followed by a mandatory public offer. (see paras 48, 66, 68, 72, 108, 109, 128, 186, 229)

See the text of the decision. (see paras 51-59)

See the text of the decision. (see paras 74-82)

See the text of the decision. (see para. 161)

See the text of the decision. (see paras 215-223)

According to Article 14(2) of Regulation No 139/2004 on the control of concentrations between undertakings, the Commission may impose fines only for infringements of Article 7 of that regulation which have been committed ‘either intentionally or negligently’. That condition is satisfied where the undertaking concerned cannot be unaware of the anticompetitive nature of its conduct, whether or not it is aware that it is infringing the competition rules. The fact that the undertaking concerned has characterised wrongly in law its conduct upon which the finding of the infringement is based cannot have the effect of exempting it from imposition of a fine in so far as it could not be unaware of the anticompetitive nature of that conduct. In that context, the undertaking concerned acted negligently when it interpreted Article 7(2) of Regulation No 139/2004 in a way that is covered neither by its wording nor by the Commission’s previous practice in taking decisions or the case-law of the Courts of the European Union, and which is not consistent with what the Commission found, albeit in an obiter dictum, in a previous decision, a notice for which was published in the Official Journal of the European Union in all official languages, and by doing so without first contacting the Commission in order to determine whether its interpretation was correct. In so doing, the undertaking concerned acted at its own risk and cannot legitimately rely on the allegedly ‘reasonable’ nature of its interpretation. In addition, an undertaking may not escape imposition of a fine where the infringement of the competition rules has resulted from that undertaking erring as to the lawfulness of its conduct on account of the terms of legal advice given by a lawyer. In the context of the assessment of negligence, the Commission is also entitled to take into consideration the fact that the company concerned is a large European company with significant experience in merger proceedings and notification to the Commission and national competition authorities, which had already been fined, albeit at national level, for the early implementation of a concentration. In such a situation, particular diligence must be expected of the company concerned. (see paras 236-238, 255, 257-259)

When an undertaking infringes the obligation, provided in Article 4(1) of Regulation No 139/2004 on the control of concentrations between undertakings, to notify a merger before its implementation, an infringement of the corresponding prohibition against implementing a concentration before notification, as provided for in the first situation in Article 7(1) of Regulation No 139/2004 is triggered automatically. At the same time, it infringes the prohibition against implementing a concentration before its authorisation, as provided for in the second situation in Article 7(1) of Regulation No 139/2004, because a concentration which has not been notified cannot be declared compatible with the internal market. As regards the penalties provided for, breach of the notification obligation provided for in Article 4 of Regulation No 139/2004, and breach of the prohibition laid down in the second situation in Article 7(1) of that regulation, are referred to in Article 14(2) of that regulation, which means that the scale of fines for infringement of Article 4(1) and the scale of fines for infringement of Article 7(1) of that regulation are now the same, and fines not exceeding 10% of the aggregate turnover of the undertaking concerned may be imposed. (see paras 300, 301, 303)

The principle ne bis in idem must be observed in proceedings for the imposition of fines under competition law. That principle precludes, in the sphere of competition, an undertaking being found liable or proceedings being brought against it afresh on the grounds of anti-competitive conduct for which it has been penalised or declared not liable by an earlier decision that can no longer be challenged. That principle, the application of which is subject to the threefold condition that in the two cases the facts must be the same, the offender the same and the legal interest protected the same, precludes ‘proceedings being brought’ against an undertaking afresh and that undertaking ‘being found liable’ afresh. However, those prohibitions presuppose that the undertaking in question has been penalised or declared not liable by an earlier decision that can no longer be challenged. It follows that the principle ne bis in idem does not apply to a situation in which several penalties are imposed by the Commission in a single decision, even if those penalties are imposed for the same actions. (see paras 307-309, 315, 319, 344)

See the text of the decision. (see paras 344, 348-374)

See the text of the decision. (see paras 377-394)

The fact that the Commission has not imposed a fine on the perpetrator of a breach of the competition rules cannot in itself prevent a fine from being imposed on the perpetrator of a similar infringement. In addition, where an undertaking has acted in breach of the competition rules, it cannot escape being penalised altogether on the ground that other undertakings have not been fined, where, as in this case, those undertakings’ circumstances are not the subject of proceedings before the Court. Moreover, the principle of equal treatment, in relation to an undertaking on which no fine was imposed in a previous decision for the same type of conduct, can, in principle, properly be relied on only by operators who have not had an opportunity to take into consideration the clarification provided in that previous decision in order to prevent infringements of the competition rules, because that decision was adopted when the infringement had already been committed. (see paras 398, 407)

As regards fines imposed under Article 14 of Regulation No 139/2004 on the control of concentrations between undertakings, paragraph 3 of that article provides that in fixing the amount of the fine, regard is to be had to the nature, gravity and duration of the infringement. As the Commission has not adopted guidelines setting out the method of calculation that it must follow when setting the amount of a fine under Article 14 of Regulation No 139/2004, the framework of the Commission’s analysis must be that set out in Article 14(3). In order to observe the obligation to provide a statement of reasons laid down by the second paragraph of Article 296 TFEU, the Commission is, moreover, required to reveal clearly and unequivocally in the decision imposing the fine the elements which it took into account in setting the amount of the fine. In the absence of guidelines setting out the method of calculation of the amount of those fines, the Commission is not required to express in figures, in absolute terms or as a percentage, the basic amount of the fine and any aggravating or mitigating circumstances. (see paras 447, 449, 450, 455)

See the text of the decision. (see paras 468-477)

In the context of setting the amount of a fine imposed for infringements of Article 4(1) and of Article 7(1) of Regulation No 139/2004 on the control of concentrations between undertakings, the mere fact that damaging effects on competition are possible, because the concentration implemented in the form initially envisaged and not cleared by the Commission raised serious doubts as to its compatibility with the internal market, may be taken into account in assessing the gravity of the infringement, even if the Commission does not demonstrate a reasonable probability that such effects exist. Admittedly, where the existence of damaging effects on competition resulting from the implementation of a concentration in the form initially envisaged and not cleared by the Commission can be demonstrated, that is liable to render the infringement even more serious than an infringement falling within the scope of the ‘intermediate situation’. That does not prevent the mere fact that damaging effects on competition cannot be ruled out from rendering the infringement more serious than the early implementation of a concentration which does not raise any competition concerns. It would be inappropriate to treat the early implementation of concentrations which raise serious doubts as to their compatibility with the internal market, and the early implementation of concentrations which do not raise any competition concerns, in the same way. In that regard, in the case of concentrations which raise serious doubts as to their compatibility with the internal market, the possible competition risks associated with early implementation are not the same as in the case of concentrations which do not raise competition concerns. The fact that a concentration raises serious doubts as to its compatibility with the internal market therefore makes the early implementation of that concentration more serious than the early implementation of a concentration which does not raise competition concerns, unless, notwithstanding the fact that it raises such serious doubts, the possibility that its implementation in the form initially envisaged and not cleared by the Commission may have had damaging effects on competition can be ruled out in a particular case. (see paras 497, 499, 500, 523, 524)

See the text of the decision. (see paras 543-547)

See the text of the decision. (see paras 554-577)

See the text of the decision. (see paras 580, 582-587, 592-608)