8

The background to the case was summarised in paragraphs 1 to 37 of the judgment under appeal, as follows: ‘1 The [appellant] is a company governed by Norwegian law and listed on the Oslo (Norway) Stock Exchange and the New York (United States) Stock Exchange, which carries out salmon farming and primary processing activities in Canada, Chile, the Faroe Islands, Ireland, Norway and Scotland, and white halibut farming and primary processing activities in Norway. The [appellant] also carries out secondary processing activities in Belgium, Chile, the Czech Republic, France, Ireland, Japan, the Netherlands, Norway, Poland and the United States. A. Acquisition of Morpol by the [appellant] 2 On 14 December 2012, the [appellant] entered into a share purchase agreement (“the SPA”) with Friendmall Ltd. and Bazmonta Holding Ltd. for the sale of the shares which those companies owned in Morpol ASA. 3 Morpol is a Norwegian producer and processor of salmon. It produces farmed salmon and offers a broad range of value added salmon products. It carries out salmon farming and primary processing activities in Norway and Scotland. It also carries out secondary processing activities in Poland, the United Kingdom and Vietnam. Prior to its acquisition by the [appellant], Morpol was listed on the Oslo Stock Exchange. 4 Friendmall and Bazmonta Holding were private limited liability companies incorporated and registered in Cyprus. Both companies were controlled by a single individual, Mr M., the founder and former chief executive officer (CEO) of Morpol. 5 Through the SPA, the [appellant] acquired an interest in Morpol amounting to approximately 48.5% of Morpol’s share capital. The closing of this acquisition (“the December 2012 Acquisition”) took place on 18 December 2012. 6 On 17 December 2012, the [appellant] made a stock exchange announcement of its intention to submit a public offer for the remaining shares in Morpol. On 15 January 2013, pursuant to the Norwegian Law on securities trading, the [appellant] submitted the mandatory public offer for the remaining shares in Morpol, representing 51.5% of the shares in the company. According to the provisions of Norwegian law, an acquirer of more than one third of the shares in a listed company is obliged to make a mandatory bid for the remaining shares in the company. 7 On 23 January 2013, the board of directors of Morpol appointed a new CEO to replace Mr M., who had in the meantime resigned with effect from 1 March 2013, following a commitment to that effect which had been included in the SPA. 8 Following the settlement and completion of the public offer on 12 March 2013, the [appellant] owned a total of 87.1% of the shares in Morpol. Thus, through the public offer, the [appellant] acquired shares representing approximately 38.6% of Morpol, in addition to the shares representing 48.5% of Morpol which the [appellant] had already acquired by means of the December 2012 Acquisition. 9 The acquisition of the remaining shares in Morpol was completed on 12 November 2013. On 15 November 2013, an extraordinary general meeting resolved to apply for the shares to be de-listed from the Oslo Stock Exchange, to reduce the number of members of the board of directors and to eliminate the nomination committee. On 28 November 2013, Morpol was de-listed from the Oslo Stock Exchange. B. Pre-notification stage 10 On 21 December 2012, the [appellant] sent a request to the [Commission] for the allocation of a case team regarding the acquisition of sole control over Morpol. In that request, the [appellant] informed the Commission that the December 2012 Acquisition had been closed and that it would not exercise its voting rights pending the decision of the Commission. 11 The Commission requested a conference call with the [appellant], which took place on 25 January 2013. During the conference call, the Commission requested information on the deal structure and clarification as to whether the December 2012 Acquisition might have already conferred control over Morpol on the [appellant]. 12 On 12 February 2013, the Commission sent a request for information to the [appellant] relating to the possible acquisition of de facto control over Morpol as a result of the December 2012 Acquisition. It also asked to be provided with the agenda and minutes of the general meetings of Morpol and the meetings of the board of directors of Morpol for the last three years. The [appellant] submitted a partial response to that request on 19 February 2013 and produced a full response on 25 February 2013. 13 On 5 March 2013, the [appellant] submitted a first draft notification form as contained in Annex I to Commission Regulation (EC) No 802/2004 of 21 April 2004 implementing Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings (OJ 2004 L 133, p. 1) (“the First Draft Form CO”). The First Draft Form CO focused on an overall market for farming, primary processing and secondary processing of salmon of all origins. 14 On 14 March 2013, the Commission sent the [appellant] a request for additional information concerning the First Draft Form CO. On 16 April 2013, the [appellant] responded to that request for information. The Commission considered that response to be incomplete and sent further requests for information on 3 May, 14 June and 10 July 2013. The [appellant] replied to those requests on 6 June, 3 July and 26 July 2013 respectively. C. Notification and decision authorising the concentration subject to compliance with certain commitments 15 On 9 August 2013, the [concentration] was formally notified to the Commission. 16 At a state of play meeting on 3 September 2013, the Commission informed the [appellant] and Morpol that it had serious doubts as to the compatibility of the transaction with the internal market as regards a possible market for Scottish salmon. 17 In order to eliminate the serious doubts identified by the Commission, the appellant proposed commitments under Article 6(2) of [Regulation No 139/2004] on 9 September 2013. Those initial commitments were market-tested by the Commission. Following certain modifications, a final set of commitments was submitted on 25 September 2013. The [appellant] committed itself to divesting approximately three quarters of the overlap between the Scottish salmon farming capacity of the parties to the concentration, thereby dispelling the serious doubts identified by the Commission. 18 On 30 September 2013, the Commission adopted Decision C(2013) 6449 (Case COMP/M.6850 — Marine Harvest/Morpol) (‘the Clearance Decision’) pursuant to Article 6(1)(b) and 6(2) of Regulation No 139/2004, approving the concentration subject to full compliance with the proposed commitments. 19 The Commission concluded in the Clearance Decision that the December 2012 Acquisition had already conferred upon the [appellant] de facto sole control over Morpol. It stated that an infringement of the standstill obligation in Article 7(1) of Regulation No 139/2004 and of the notification requirement in Article 4(1) of that regulation could not be excluded. It also stated that it might examine in a separate procedure whether a penalty under Article 14(2) of Regulation No 139/2004 would be appropriate. D. [Decision at issue] and procedure leading to its adoption 20 In a letter dated 30 January 2014, the Commission informed the [appellant] of an ongoing investigation concerning possible infringements of Article 7(1) and Article 4(1) of Regulation No 139/2004. 21 On 31 March 2014, the Commission issued a statement of objections to the [appellant] pursuant to Article 18 of Regulation No 139/2004 (‘the Statement of Objections’). In the Statement of Objections, the Commission reached the preliminary conclusion that the [appellant] had intentionally or at least negligently infringed Article 4(1) and Article 7(1) of Regulation No 139/2004. 22 On 30 April 2014, the [appellant] submitted its response to the Statement of Objections. On 6 May 2014, the [appellant] presented the arguments set out in its response in the course of an oral hearing. On 7 July 2014, a meeting of the Advisory Committee on Concentrations was held. 23 On 23 July 2014 the Commission adopted [the decision at issue]. 24 The first three articles in the operative part of the [decision at issue] are worded as follows: “Article 1 By putting into effect a concentration with a Union dimension in the period from 18 December 2012 to 30 September 2013, before it was notified and before it was declared compatible with the internal market, [the appellant] has infringed Article 4(1) and Article 7(1) of [Regulation No 139/2004]. Article 2 A fine of EUR 10000000 is hereby imposed on [the appellant] for the infringement of Article 4(1) of Regulation [No 139/2004] referred to in Article 1. Article 3 A fine of EUR 10000000 is hereby imposed on [the appellant] for the infringement of Article 7(1) of Regulation [No 139/2004] referred to in Article 1.” 25 In the [decision at issue], the Commission, first of all, considered that the [appellant] had acquired de facto sole control of Morpol after the closing of the December 2012 Acquisition because the [appellant] was highly likely to achieve a majority at the shareholders’ meetings, given the size of its shareholding (48.5%) and the level of attendance of other shareholders at shareholders’ meetings in previous years. 26 The Commission further considered that the December 2012 Acquisition did not benefit from the exemption under Article 7(2) of Regulation No 139/2004. In that regard, it noted that Article 7(2) of Regulation No 139/2004 applied only to public bids or to a series of transactions in securities by which control within the meaning of Article 3 of Regulation No 139/2004 was acquired “from various sellers”. According to the Commission, in this case, the controlling stake was acquired from a single seller, namely Mr M., through Friendmall and Bazmonta Holding, by means of the December 2012 Acquisition. 27 According to the Commission, Article 7(2) of Regulation No 139/2004 is not intended to apply to situations where a significant block of shares is acquired from a single seller and where it is straightforward to establish, on the basis of votes cast at previous ordinary and extraordinary general meetings, that that block of shares will confer de facto sole control of the target company. 28 Moreover, the Commission noted that the December 2012 Acquisition, which was closed on 18 December 2012, was not part of the implementation of the public offer, which was implemented between 15 January and 26 February 2013. It considered that the fact that the December 2012 Acquisition might have triggered the obligation for the [appellant] to launch the public offer on the outstanding shares of Morpol was irrelevant, given that de facto control had already been acquired from a single seller. 29 The Commission further considered that the [appellant]’s references to legal sources according to which “several unitary steps” would be considered as one single concentration when they are conditional upon each other on a de jure or de facto basis appeared to be misplaced. It pointed out that the [appellant] had acquired control over Morpol through a single purchase of 48.5% of the shares of Morpol and not through several partial transactions of assets ultimately forming a single economic entity. 30 The Commission noted that, according to Article 14(3) of Regulation No 139/2004, in fixing the amount of the fine, regard was to be had to the nature, gravity and duration of the infringement. 31 It considered that any infringement of Article 4(1) and Article 7(1) of Regulation No 139/2004 was, by nature, a serious infringement. 32 In its assessment of the gravity of the infringement, the Commission took into account the fact that, in its view, the infringement was committed by the [appellant] as a result of negligence, that the concentration at issue raised serious doubts as to its compatibility with the internal market, and the fact that there were previous procedural infringement cases concerning the [appellant] and other companies. 33 With respect to the duration of the infringement, the Commission noted that an infringement of Article 4(1) of Regulation No 139/2004 was an instantaneous infringement, committed in the present case on 18 December 2012, that is to say, on the date of implementation of the concentration. It considered, moreover, that an infringement of Article 7(1) of Regulation No 139/2004 was a continuous infringement which, in the present case, had lasted from 18 December 2012 to 30 September 2013, that is to say, from the date on which the December 2012 Acquisition was implemented until the date on which it was authorised. According to the Commission, that period of 9 months and 12 days was particularly long. 34 The Commission regarded as a mitigating circumstance the fact that the [appellant] had not exercised its voting rights in Morpol and had kept Morpol as an entity separate from the [appellant] during the merger review process. 35 It also regarded as a mitigating circumstance the fact that the [appellant] had submitted a case team allocation request a few days after the closing of the December 2012 Acquisition. 36 On the other hand, the Commission did not find that there were any aggravating circumstances. 37 The Commission considered that, in the case of an undertaking of the size of the [appellant], the amount of the penalty had to be significant in order to have a deterrent effect. This was particularly the case where the concentration at issue had raised serious doubts as to its compatibility with the internal market.’