JUDGMENT OF THE GENERAL COURT (Fifth Chamber)

26 October 2017 ( *1 )

(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)

In Case T‑704/14,

Marine Harvest ASA, established in Bergen (Norway), represented by R. Subiotto QC,

applicant,

v

European Commission, represented by M. Farley, C. Giolito and F. Jimeno Fernández, acting as Agents,

defendant,

APPLICATION based on Article 263 TFEU and seeking, principally, annulment of Commission Decision C(2014) 5089 final of 23 July 2014 imposing a fine for putting into effect a concentration in breach of Article 4(1) and Article 7(1) of Regulation (EC) No 139/2004 (Case COMP/M.7184 — Marine Harvest/Morpol), and, in the alternative, annulment or reduction of the fine imposed on the applicant,

THE GENERAL COURT (Fifth Chamber),

composed of A. Dittrich (Rapporteur), President, J. Schwarcz and V. Tomljenović, Judges,

Registrar: C. Heeren, Administrator,

having regard to the written part of the procedure and further to the hearing on 15 September 2016,

gives the following

Judgment

I. Background to the dispute

1 The applicant, Marine Harvest ASA, 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 applicant 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 applicant

2 On 14 December 2012, the applicant 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 applicant, 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 applicant acquired an interest in Morpol amounting to approximately 48.5% of Morpol’s share capital. The closing of that acquisition (‘the December 2012 Acquisition’) took place on 18 December 2012.

6 On 17 December 2012, the applicant 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 applicant 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 applicant owned a total of 87.1% of the shares in Morpol. Thus, through the public offer, the applicant acquired shares representing approximately 38.6% of Morpol, in addition to the shares representing 48.5% of Morpol which the applicant 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 phase

10 On 21 December 2012, the applicant sent a request to the European Commission for the allocation of a case team in respect of the acquisition of sole control over Morpol. In that request, the applicant 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 applicant, 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 applicant.

12 On 12 February 2013, the Commission sent a request for information to the applicant 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 applicant 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 applicant 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 applicant a request for additional information concerning the First Draft Form CO. On 16 April 2013, the applicant 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 applicant 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 transaction was formally notified to the Commission.

16 At a state of play meeting on 3 September 2013, the Commission informed the applicant 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 applicant proposed commitments under Article 6(2) of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (OJ 2004 L 24, p. 1) 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 applicant 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 applicant 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. Contested decision and procedure leading to its adoption

20 In a letter dated 30 January 2014, the Commission informed the applicant 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 applicant 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 applicant 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 applicant submitted its response to the Statement of Objections. On 6 May 2014, the applicant 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 Decision C(2014) 5089 final 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 COMP/M.7184 — Marine Harvest/Morpol) (‘the Contested Decision’).

24 The first three articles in the operative part of the Contested Decision 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 applicant] has infringed Article 4(1) and Article 7(1) of Regulation (EC) No 139/2004. Article 2 A fine of EUR 10000000 is hereby imposed on [the applicant] for the infringement of Article 4(1) of Regulation (EC) No 139/2004 referred to in Article 1. Article 3 A fine of EUR 10000000 is hereby imposed on [the applicant] for the infringement of Article 7(1) of Regulation (EC) No 139/2004 referred to in Article 1.’

25 In the Contested Decision, the Commission, first of all, considered that the applicant had acquired de facto sole control of Morpol after the closing of the December 2012 Acquisition because the applicant 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 applicant 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 applicant’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 applicant 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 applicant 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 applicant 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 applicant had not exercised its voting rights in Morpol and had kept Morpol as an entity separate from the applicant during the merger review process.

35 It also regarded as a mitigating circumstance the fact that the applicant 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 applicant, 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.

II. Procedure and forms of order sought

38 The applicant brought the present action by application lodged at the General Court Registry on 3 October 2014.

39 By a separate document, lodged at the Court Registry on the same date, the applicant requested that the Court adjudicate under an expedited procedure, pursuant to Article 76a of the Rules of Procedure of the General Court of 2 May 1991. By letter of 17 October 2014, the Commission submitted its observations on that request. By decision of 23 October 2014, the Court refused the request for an expedited procedure.

40 Acting on a report from the Judge-Rapporteur, the Court decided to open the oral part of the procedure. By way of measures of organisation of procedure under Article 89 of its rules of procedure, the Court put written questions to the parties and requested that the Commission produce certain documents. The parties replied to the written questions and the Commission produced the documents requested.

41 The applicant claims that the Court should: – annul the Contested Decision; – alternatively, annul the fines imposed on the applicant pursuant to the Contested Decision; – in the further alternative, substantially reduce the fines imposed on the applicant pursuant to the Contested Decision; – in any event, order the Commission to pay the costs; – take any other measures that the Court considers appropriate.

42 The Commission contends that the Court should: – dismiss the action in its entirety; – order the applicant to pay the costs.

III. Law

43 The applicant puts forward five pleas in law in support of the action. The first plea alleges a manifest error of law and fact in that the Contested Decision rejected the applicability of Article 7(2) of Regulation No 139/2004. The second plea alleges a manifest error of law and fact in that the Contested Decision concludes that the applicant was negligent. The third plea alleges breach of the general principle ne bis in idem. The fourth plea alleges a manifest error of law and fact in the imposition of fines on the applicant. Lastly, the fifth plea alleges a manifest error of law and fact and a failure to state reasons in relation to the setting of the levels of the fines.

A. First plea in law, alleging a manifest error of law and fact in that the Contested Decision rejected the applicability of Article 7(2) of Regulation No 139/2004

44 The first plea in law is in four parts. The first part alleges that the Contested Decision errs in law and in fact by disregarding the notion of a single concentration in interpreting Article 7(2) of Regulation No 139/2004. The second part alleges an erroneous interpretation, in fact and in law, of the wording of Article 7(2) of Regulation No 139/2004. The third part alleges an erroneous interpretation of the rationale of Article 7(2) of Regulation No 139/2004. Lastly, it is argued in the fourth part that the applicant complied with Article 7(2) of Regulation No 139/2004.

45 It is appropriate, in the present case, to examine the first three parts of the first plea together; all of these concern the interpretation of Article 7(2) of Regulation No 139/2004.

1. The first three parts of the first plea in law

(a) Preliminary observations

46 It should be noted, first of all, that Article 14(2)(a) and (b) of Regulation No 139/2004 provides as follows: ‘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); (b) implement a concentration in breach of Article 7’.

47 According to the first subparagraph of Article 4(1) of Regulation No 139/2004, ‘concentrations with a Community 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’.

48 According to Article 7(1) of that regulation, ‘a concentration with a Community dimension … shall not be implemented either before its notification or until it has been declared compatible with the [internal] 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)’.

49 In addition, according to Article 3(1) of Regulation No 139/2004: ‘1. 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.’

50 Lastly, Article 3(2) of Regulation No 139/2004 provides 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’.

51 In the present case, it must be noted at the outset that, by means of the December 2012 Acquisition, the applicant acquired an interest in Morpol that amounted to approximately 48.5% of Morpol’s share capital.

52 As the Commission noted in paragraph 55 of the Contested Decision, without being contradicted in that regard by the applicant, at the time of the December 2012 Acquisition, Morpol was a Norwegian public limited company and, as such, the voting rights were allocated according to the ‘one share carries one vote’ principle. A simple majority of the shares present and voting at shareholder meetings was therefore sufficient to carry a motion, apart from certain procedures that required a qualified majority of two thirds.

53 The Commission also correctly stated, in paragraph 57 of the Contested Decision, that a minority shareholder may be deemed to have sole control on a de facto basis, particularly where the shareholder is highly likely to achieve a majority at the shareholders’ meetings, taking account of the size of its shareholding and the level of attendance of other shareholders at shareholders’ meetings in preceding years (see, to that effect, judgment of 12 December 2012, Electrabel v Commission, T‑332/09, EU:T:2012:672, paragraphs 45 to 48).

54 Next, the Commission stated that Mr M. (through Friendmall and Bazmonta Holding) always accounted for a clear majority of votes cast at shareholders’ meetings and that the remainder of the capital in Morpol was significantly dispersed, which implied that the remaining shareholders would not have been able to form a blocking minority capable of overcoming Mr M.’s power of decision, not least due to the low number of them attending the general meetings.

55 The Commission therefore concluded, without being contradicted in that regard by the applicant, that Mr M. exercised sole de facto control over Morpol through its interests in Friendmall and Bazmonta Holding before the December 2012 Acquisition.

56 Lastly, the Commission concluded, correctly, that the December 2012 Acquisition had conferred on the applicant the same rights and possibilities of exercising decisive influence over Morpol as those previously enjoyed by Mr M. through Friendmall and Bazmonta Holding.

57 It follows from the foregoing that the Commission correctly found, in paragraph 68 of the Contested Decision, that the applicant had acquired control over Morpol after the closing of the December 2012 Acquisition.

58 The applicant repeatedly states, albeit in other contexts, that it did not exercise its voting rights before the concentration was cleared by the Commission. In that regard it must be noted that, according to Article 3(2) of Regulation 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 event is therefore the acquisition of that control in the formal sense and not the actual exercise of such control (see, by analogy, judgment of 12 December 2012, Electrabel v Commission, T‑332/09, EU:T:2012:672, paragraph 189). The fact that the holding of voting rights conferred on the applicant de facto control over Morpol is not called in question by the fact that the applicant did not exercise its voting rights prior to clearance of the concentration.

59 As the Commission stated in paragraphs 72 and 73 of the Contested Decision, some clauses of the SPA seemed to imply that the applicant would exercise its voting rights in Morpol only after having obtained clearance from competition authorities. However, there is nothing in the SPA that prevents the applicant from exercising its voting rights pending clearance. The applicant would, therefore, have been free to exercise its voting rights in Morpol at any time after the closing of the December 2012 Acquisition.

60 The applicant confirmed, moreover, in reply to a question put to it by the Court at the hearing, that it did not deny that the acquisition of the 48.5% stake in Morpol had conferred on it control over Morpol within the meaning of Regulation No 139/2004.

61 As the Commission noted in paragraphs 8, 13 and 66 of the Contested Decision, the closing of the December 2012 Acquisition took place on 18 December 2012. The applicant concedes in paragraph 13 of the application that, on 18 December 2012, the SPA was closed and Mr M.’s shares in Morpol were transferred to the applicant.

62 The applicant does not dispute the fact that the concentration at issue was a concentration with a Community dimension.

63 Given that the applicant acquired control over Morpol by means of the December 2012 Acquisition, it would, in principle, have been obliged, pursuant to the first subparagraph of Article 4(1) and Article 7(1) of Regulation No 139/2004, to notify that concentration to the Commission before implementing it, and not to implement it until it had been declared compatible with the internal market by the Commission.

64 It follows from the above findings that the relevant question for the purposes of the Court’s examination of the first three parts of the first plea in law is whether the exception provided for in Article 7(2) of Regulation No 139/2004 was applicable in the present case.

(b) The applicability of Article 7(2) of Regulation No 139/2004

65 Article 7(2) of Regulation No 139/2004 provides as follows: ‘Paragraph 1 shall not prevent the implementation of a public bid or of a series of transactions in securities including those convertible into other securities admitted to trading on a market such as a stock exchange, by which control within the meaning of Article 3 is acquired from various sellers, provided that: (a) the concentration is notified to the Commission pursuant to Article 4 without delay; and (b) the acquirer does not exercise the voting rights attached to the securities in question or does so only to maintain the full value of its investments based on a derogation granted by the Commission under paragraph 3.’

66 Article 7(2) of Regulation No 139/2004 thus envisages two possible situations: one linked to a public bid (first situation), the other linked to a series of transactions in securities (second situation).

67 In reply to a question on that point at the hearing, the applicant explained that its reasoning was based on the first situation in Article 7(2) of Regulation No 139/2004, and formal note of this was taken in the minutes of the hearing.

(1) The fact that the concentration at issue is not covered by the wording of Article 7(2) of Regulation No 139/2004

68 It will be recalled that, according to the first situation as outlined in Article 7(2) of Regulation No 139/2004, ‘paragraph 1 shall not 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.

69 In the present case, it must be noted that the Commission did not find that the applicant had infringed Article 7(1) of Regulation No 139/2004 by implementing the public bid. It found that the applicant had infringed Article 7(1) and Article 4(1) of Regulation No 139/2004 by the December 2012 Acquisition. It must be borne in mind that the public bid was not submitted until 15 January 2013, that is after the closing of the December 2012 Acquisition.

70 The fact that, according to Article 7(2) of Regulation No 139/2004, paragraph 1 of that article is not to prevent the implementation of a public bid is therefore, in principle, irrelevant in the present case.

71 The first situation envisaged in Article 7(2) of Regulation No 139/2004 permits, in certain circumstances, the implementation of a public bid before notification and authorisation, even if it constitutes a concentration with a Community dimension. According to the wording of that provision, it does not, however, permit the implementation of a private acquisition.

72 It must therefore be held that, according to the wording in respect of the first situation envisaged in Article 7(2) of Regulation No 139/2004, that situation does not apply in the present case.

73 Although the applicant indicated at the hearing that it was relying on the first situation envisaged in Article 7(2) of Regulation No 139/2004, it should be pointed out that the concentration at issue also falls outside the wording of the second situation envisaged in Article 7(2) of Regulation No 139/2004.

74 In the second situation envisaged in Article 7(2) of Regulation No 139/2004, ‘paragraph 1 shall not prevent the implementation ... of a series of transactions in securities including those convertible into other securities admitted to trading on a market such as a stock exchange, by which control within the meaning of Article 3 is acquired from various sellers’, provided that certain conditions are fulfilled.

75 It must be noted that, in the present case, the applicant acquired control of Morpol from one seller by means of a single transaction in securities, that is the December 2012 Acquisition, as the Commission pointed out in paragraph 101 of the Contested Decision.

76 Given that Mr M. controlled Friendmall and Bazmonta Holding at that time, Mr M. was the sole seller of Morpol shares.

77 The applicant submitted at the hearing that, in its decision of 26 February 2007 (Case COMP/M.4521 — LGI/Telenet) (‘the LGI/Telenet decision’), the Commission had not queried who ultimately controlled the entities which had sold the shares in Telenet. According to the applicant, those entities — intercommunales (associations of local authorities) — were actually controlled by the Flemish Region. The applicant submitted that, in the present case, the Commission had relied on the fact that Friendmall and Bazmonta Holding were both controlled by Mr M. and therefore the applicant had not, according to the Commission, acquired control from various sellers, yet the Commission had not raised the same question in the case that gave rise to the LGI/Telenet decision.

78 In the first place, it must be noted that the Court is not bound by the Commission’s previous practice in taking decisions. In the second place, it is apparent from the table showing participation in general shareholders’ meetings, in paragraph 59 of the Contested Decision, that Friendmall by itself held a clear majority of votes in all those general meetings. The applicant thus acquired sole de facto control of Morpol just through the acquisition of only the shares that belonged to Friendmall. In addition, as the Commission found in paragraph 63 of the Contested Decision, the applicant acknowledged, in reply to the Commission’s request for information of 12 February 2013, that, on the basis of the shares represented in the annual and extraordinary general meetings, Morpol was solely controlled by Friendmall. It is not necessary, therefore, to analyse in detail, in that context, the facts underlying the LGI/Telenet decision (see paragraph 77 above).

79 As the Commission noted, in paragraph 66 of the Contested Decision, the December 2012 Acquisition was closed on 18 December 2012.

80 The public offer was not submitted until 15 January 2013, by which time the applicant already had sole de facto control over Morpol.

81 While it is true that the complete takeover of Morpol by the applicant took place in several stages and involved various sellers, control was acquired by means of a single transaction and from just one seller. Control was not, therefore, acquired either from various sellers or by means of a series of transactions.

82 It follows from this that, according to the wording in respect of the second situation envisaged in Article 7(2) of Regulation No 139/2004, that situation also does not apply in the present case.

83 It must therefore be held that, according to the wording of Article 7(2) of Regulation No 139/2004, the December 2012 Acquisition is not covered by that provision.

84 The applicant’s reasoning is based on the existence of a single concentration, in the sense that the December 2012 Acquisition and the subsequent public offer constitute a unity. The Court must therefore examine the merits of that argument.

(2) The applicant’s arguments in relation to the alleged existence of a single concentration

(i) Preliminary observations

85 The applicant submits that the Contested Decision ignores the key legal nexus and conditionality between the December 2012 Acquisition and the public offer, and that it displays reasoning that contradicts Regulation No 139/2004, the General Court’s case-law, the Commission’s Consolidated Jurisdictional Notice under Regulation No 139/2004 (OJ 2008 C 95, p. 1; ‘the Consolidated Jurisdictional Notice’), the Commission’s previous practice in taking decisions and the practice in the Member States.

86 According to the applicant, the Commission ought to have concluded that the December 2012 Acquisition and the subsequent public offer were steps in a single concentration.

87 It should be borne in mind in that context that the applicant stated at the hearing that it was basing its reasoning on the first situation envisaged in Article 7(2) of Regulation No 139/2004. It follows that the applicant is, in essence, claiming that, despite pre-dating the launch of the public offer, the December 2012 Acquisition was part of that offer, and that the Commission therefore, according to the applicant, in essence identified an infringement consisting in the implementation of a public offer, even though it was apparent from the first situation provided for in Article 7(2) of Regulation No 139/2004 that Article 7(1) of that regulation was not to prevent such implementation.

88 The Court must examine whether or not the December 2012 Acquisition and the public offer may be regarded as a single concentration.

89 It must be pointed out first of all that the concept of ‘single concentration’ did not appear in Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings (OJ 1989 L 395, p. 1), which preceded Regulation No 139/2004.

90 The Commission has relied on the concept of a ‘single concentration’ in a number of decisions and the General Court has endorsed that concept, notably in the judgment of 23 February 2006, Cementbouw Handel & Industrie v Commission (T‑282/02, EU:T:2006:64).

91 As regards Regulation No 139/2004, it must be noted that the concept of ‘single concentration’ appears only in recital 20, and not in the articles of that regulation.

92 The third sentence of recital 20 of Regulation No 139/2004 is worded as follows: ‘It is moreover appropriate to treat as a single concentration transactions that are closely connected in that they are linked by condition or take the form of a series of transactions in securities taking place within a reasonably short period of time.’

93 In practice, the Commission has relied on the concept of a single concentration in two situations.

94 In that regard, the Consolidated Jurisdictional Notice states, in paragraph 44: ‘The principle that several transactions can be treated as a single concentration under the mentioned conditions only applies if the result is that control of one or more undertakings is acquired by the same person(s) or undertaking(s). First, this may be the case if a single business or undertaking is acquired via several legal transactions. Second, also the acquisition of control of several undertakings — which could constitute concentrations in themselves — can be linked in such a way that it constitutes a single concentration.’

95 There are therefore two situations: first, the acquisition of a single business or undertaking via several legal transactions and, second, the acquisition of control of several undertakings, which could constitute concentrations in themselves.

96 Furthermore, the third sentence of recital 20 of Regulation No 139/2004 mentions two possibilities for establishing the existence of a single concentration. The transactions must be closely connected in that either they are linked by condition or they take the form of a series of transactions in securities taking place within a reasonably short period of time.

97 In reply to a question on that point at the hearing, the applicant confirmed that it was relying on the first possibility mentioned in the third sentence of recital 20 of Regulation No 139/2004, relating to transactions that are linked by condition, and formal note of this was taken in the minutes of the hearing.

98 The Court must therefore examine the question whether, in the present case, the existence of a single concentration can be established on the basis of the first possibility mentioned in the third sentence of recital 20 of Regulation No 139/2004.

99 The concentration at issue in the present case clearly does not fall within the second situation as defined in paragraph 95 above, that of the acquisition of control of several undertakings.

100 It is necessary, therefore, to examine whether the concentration at issue falls within the first situation as defined in paragraph 95 above, that of the acquisition of a single undertaking via several legal transactions.

101 The applicant submits that several transactions constitute a single concentration if those transactions are interdependent in such a way that one transaction would not have been carried out without the other. It maintains, in essence, that the mere fact that several transactions are linked by condition is sufficient in order for them to be considered to form part of a single concentration. Thus, it states that the Commission should have concluded that the December 2012 Acquisition and the public offer were ‘unitary in nature’ both de jure and de facto, requiring them to be considered and assessed together as part of one concentration.

102 By contrast, the Commission stated, in paragraph 105 of the Contested Decision, that it was considered ‘irrelevant that the December 2012 Acquisition and the following steps of [the applicant’s] takeover of Morpol may have been seen as economically part of the same transaction by [the applicant]’. The Commission also stated, in paragraph 113 of the Contested Decision, that ‘[the applicant’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 appear[ed] to be misplaced’, which it explained in more detail in paragraphs 114 to 117 of the Contested Decision. The Commission did not make a finding, in the Contested Decision, as to whether or not there was any conditionality de jure or de facto between the December 2012 Acquisition and the subsequent public offer.

103 It is necessary, therefore, to examine the question whether, in the context of the first situation — the acquisition of a single undertaking via several legal transactions — the mere existence of conditionality de jure or de facto is sufficient to establish the existence of a single concentration, even where control of the target undertaking is acquired via a single private transaction before the launch of a public offer.

104 In that context, the Court must examine (i) the applicant’s arguments to the effect that the Commission’s position contradicts the Consolidated Jurisdictional Notice; (ii) the applicant’s arguments to the effect that the Commission’s position contradicts the General Court’s case-law and the Commission’s previous practice in taking decisions; (iii) the applicant’s arguments to the effect that the Commission’s position contradicts recital 20 of Regulation No 139/2004; (iv) the applicant’s arguments to the effect that the Commission’s position contradicts the practice in the Member States; and (v) the applicant’s arguments to the effect that the Commission’s interpretation of the rationale of Article 7(2) of Regulation No 139/2004 was erroneous.

(ii) The applicant’s arguments to the effect that the Commission’s position contradicts the Consolidated Jurisdictional Notice

105 The applicant submits that the position adopted by the Commission in the Contested Decision contradicts the Consolidated Jurisdictional Notice. According to the applicant, the Consolidated Jurisdictional Notice states, in paragraph 43, that ‘two or several transactions constitute a single concentration where they are linked de jure, i.e., the agreements themselves are linked by “mutual conditionality”, or de facto, …’.

106 However, the applicant’s argument is based on a misreading of paragraph 43 of the Consolidated Jurisdictional Notice. That paragraph is worded as follows: ‘The required conditionality implies that none of the transactions would take place without the others and they therefore constitute a single operation. Such conditionality is normally demonstrated if the transactions are linked de jure, i.e. the agreements themselves are linked by mutual conditionality. If de facto conditionality can be satisfactorily demonstrated, it may also suffice for treating the transactions as a single concentration. This requires an economic assessment of whether each of the transactions necessarily depends on the conclusion of the others. Further indications of the interdependence of several transactions may be the statements of the parties themselves or the simultaneous conclusion of the relevant agreements. A conclusion of de facto interconditionality of several transactions will be difficult to reach in the absence of their simultaneity. A pronounced lack of simultaneity of legally inter-conditional transactions may likewise put into doubt their true interdependence.’

107 As regards the concept of ‘single concentration’, that paragraph contains only the statement that de facto conditionality ‘may’ also suffice for treating the transactions as a single concentration. It does not follow from that wording that conditionality always suffices for several transactions to be capable of being treated as a single concentration.

108 It should be noted that the first sentence of paragraph 45 of the Consolidated Jurisdictional Notice is worded as follows: ‘A single concentration may therefore exist if the same purchaser(s) acquire control of a single business, i.e. a single economic entity, via several legal transactions if those are inter-conditional’ (emphasis added).

109 That paragraph relates, as its title indicates, to the ‘acquisition of a single business’ (that is to say, the first situation as defined in paragraph 95 above). According to paragraph 45 of the Consolidated Jurisdictional Notice, in order for it to be possible for a single concentration to exist in the first situation, control must be acquired via several legal transactions. However, in the present case, control was acquired via the December 2012 Acquisition only, and that acquisition was closed before the launch of the public offer for the outstanding shares of Morpol.

110 The applicant relies also on paragraph 40 of the Consolidated Jurisdictional Notice, which states in the first sentence that, ‘under [Regulation No 139/2004] transactions which stand or fall together according to the economic objectives pursued by the parties should also be analysed in one procedure’. It must be noted, however, that the second sentence of paragraph 40 of the Consolidated Jurisdictional Notice makes clear that, ‘in these circumstances, the change of the market structure is brought about by these transactions together’. Paragraph 40 of the Consolidated Jurisdictional Notice thus relates to situations in which the change of the market structure is brought about by transactions together, and not to situations in which the change of market structure, that is to say, the acquisition of control of a single target undertaking, is effected by means of a single transaction.

111 According to the Consolidated Jurisdictional Notice, where control of a single undertaking is acquired by means of several transactions, it is possible, under certain conditions, to treat those transactions as a single concentration. The acquisition of control by means of several transactions is therefore, according to the Consolidated Jurisdictional Notice, a condition for the ability to apply the concept of a single concentration in the first situation as defined in paragraph 95 above, that of the acquisition of a single business or undertaking via several legal transactions.

112 The applicant maintains, in essence, that, since the December 2012 Acquisition and the subsequent public offer are linked by conditionality, they constitute a single concentration, and concludes from this that it acquired control over Morpol by means of several transactions.

113 However, the acquisition of a single undertaking by means of several transactions is, according to the Consolidated Jurisdictional Notice, a condition for the ability to treat several transactions as a single concentration, and not a consequence of the fact that those transactions constitute a single concentration.

114 In the present case, that condition is not fulfilled, as control of Morpol was not acquired by means of several transactions.

115 At the hearing, the applicant also relied on paragraph 38 of the Consolidated Jurisdictional Notice. It submitted that it was evident from that paragraph that the crucial question for the purpose of assessing whether several transactions constituted a single concentration was whether the ‘end result’ was a single concentration. According to the applicant, the ‘end result’ must be considered to be the acquisition of 100% of the shares in Morpol which had been the applicant’s intention from the outset.

116 It should be pointed out in that regard that paragraph 38 of the Consolidated Jurisdictional Notice is in essence a summary of paragraphs 104 to 109 of the judgment of 23 February 2006, Cementbouw Handel & Industrie v Commission (T‑282/02, EU:T:2006:64), to which reference is made in footnote 43 of that notice. As is apparent from paragraph 128 below, it follows from paragraph 104 of that judgment that the relevant issue is not when the acquisition of all the shares of a target undertaking took place but when the acquisition of control took place. There is nothing in paragraph 38 of the Consolidated Jurisdictional Notice to permit the inference that, when an undertaking intends from the outset to acquire all the shares of a target undertaking, the ‘end result’ must be determined in relation to the acquisition of all the shares and not in relation to the acquisition of control.

117 On the contrary, the first sentence of paragraph 38 of the Consolidated Jurisdictional Notice, in common with paragraph 104 of the judgment of 23 February 2006, Cementbouw Handel & Industrie v Commission (T‑282/02, EU:T:2006:64), clearly refers to the definition of a concentration set out in Article 3(1) of Regulation No 139/2004, the result being ‘control’ of one or more undertakings. Furthermore, according to the third sentence of paragraph 38 of the Consolidated Jurisdictional Notice, ‘it should therefore be determined whether the result leads to conferring one or more undertakings direct or indirect economic control over the activities of one or more other undertakings’. That sentence confirms that the ‘result’ must be defined in relation to the acquisition of control of the target undertaking.

118 In the present case, that result, namely the acquisition of control, was obtained following the December 2012 Acquisition alone.

119 Contrary to the applicant’s assertion, the Contested Decision is therefore consistent with the Consolidated Jurisdictional Notice.

(iii) The applicant’s arguments to the effect that the Commission’s position contradicts the General Court’s case-law and the Commission’s previous practice in taking decisions

120 The applicant also claims that the Commission’s reasoning in the Contested Decision contradicts the General Court’s case-law and the Commission’s previous practice in taking decisions.

121 The following must be stated in that regard.

122 The applicant relies, in the first place, on the judgment of 23 February 2006, Cementbouw Handel & Industrie v Commission (T‑282/02, EU:T:2006:64).

123 In the case that gave rise to that judgment, the question arose as to whether several groups of transactions constituted several separate concentrations or a single concentration (judgment of 23 February 2006, Cementbouw Handel & Industrie v Commission, T‑282/02, EU:T:2006:64, paragraphs 8, 45 and 91). The case thus falls within the second situation as defined in paragraph 95 above, that of the acquisition of control of several undertakings, which could constitute concentrations in themselves. It should be borne in mind in that regard that the present case does not fall within that second situation (see paragraph 99 above).

124 The Court held that it was for the Commission to ascertain whether several transactions ‘[were] unitary in nature, so that they constitute[d] a single concentration for the purposes of Article 3 of Regulation No 4064/89’ (judgment of 23 February 2006, Cementbouw Handel & Industrie v Commission, T‑282/02, EU:T:2006:64, paragraph 105). It also noted that, ‘in order to determine the unitary nature of the transactions in question, it [was] necessary, in each individual case, to ascertain whether those transactions [were] interdependent, in such a way that one transaction would not have been carried out without the other’ (judgment of 23 February 2006, Cementbouw Handel & Industrie v Commission, T‑282/02, EU:T:2006:64, paragraph 107).

125 The applicant relies on paragraph 107 of the judgment of 23 February 2006, Cementbouw Handel & Industrie v Commission (T‑282/02, EU:T:2006:64), and asserts that it follows from this that several legally distinct transactions are unitary in nature and therefore constitute a single concentration under Regulation No 139/2004 if ‘those transactions are interdependent, in such a way that one transaction would not have been carried out without the other’.

126 However, it cannot be inferred from the judgment of 23 February 2006, Cementbouw Handel & Industrie v Commission (T‑282/02, EU:T:2006:64) that whenever several transactions are interdependent, they necessarily constitute a single concentration.

127 It must be noted that, in paragraph 104 of the judgment of 23 February 2006, Cementbouw Handel & Industrie v Commission (T‑282/02, EU:T:2006:64), the Court held as follows: ‘That general and teleological definition of a concentration — the result being control of one or more undertakings — implies that it makes no difference whether the direct or indirect acquisition of control was acquired in one, two or more stages by means of one, two or more transactions, provided that the end result constitutes a single concentration’ (emphasis added).

128 The applicant’s argument, put forward at the hearing, that it is apparent from paragraph 104 of the judgment of 23 February 2006, Cementbouw Handel & Industrie v Commission (T‑282/02, EU:T:2006:64) that the issue is whether control is acquired at the end of a series of transactions, regardless of when that control is acquired, must be rejected. It must be pointed out in that regard that paragraph 104 of that judgment mentions not the acquisition of the target undertaking which may proceed in one or more stages, but the acquisition of control which may proceed in one or more stages. The relevant question is not, therefore, when the acquisition of all the shares of a target undertaking took place but when the acquisition of control took place. It must be noted that where, as in the present case, the acquisition of de facto sole control of a single target undertaking took place by means of an initial transaction alone, subsequent transactions by which the acquirer obtains additional shares in that undertaking are no longer relevant for the purpose of acquiring control and thus of implementing the concentration.

129 In paragraph 108 of the judgment of 23 February 2006, Cementbouw Handel & Industrie v Commission (T‑282/02, EU:T:2006:64), the Court held that the approach of ascertaining whether the transactions were interdependent tended, in particular, ‘to ensure that undertakings which notif[ied] a concentration [had] the advantage of legal certainty for all the transactions which complete[d] that operation’.

130 In this instance, it is not a case of all the transactions ‘which complete [the] operation[, that is to say, the concentration]’, as the concentration was completed by the December 2012 Acquisition alone.

131 Lastly, the Court noted, in paragraph 109 of the judgment of 23 February 2006, Cementbouw Handel & Industrie v Commission (T‑282/02, EU:T:2006:64), that a concentration could ‘be deemed to arise even in the case of a number of formally distinct legal transactions, provided that those transactions [were] interdependent in such a way that none of them would be carried out without the others and that the result consist[ed] in conferring on one or more undertakings direct or indirect economic control over the activities of one or more other undertakings’ (emphasis added).

132 That paragraph of the judgment of 23 February 2006, Cementbouw Handel & Industrie v Commission (T‑282/02, EU:T:2006:64) confirms that the result of a ‘number of formally distinct legal transactions’ must consist in conferring economic control over the activities of one or more undertakings. In the present case, the acquisition of control is the result of one transaction, the December 2012 Acquisition, not of several transactions.

133 It follows from the foregoing that it cannot be inferred from the judgment of 23 February 2006, Cementbouw Handel & Industrie v Commission (T‑282/02, EU:T:2006:64) that, in a situation in which control of a single target undertaking has been acquired by means of one operation, that operation must be considered to form part of a single concentration where the purchase of shares that resulted in the taking of control and a subsequent mandatory public offer are interdependent.

134 In the second place, the applicant relies on the judgment of 6 July 2010, Aer Lingus Group v Commission (T‑411/07, EU:T:2010:281), and on the Commission decision at issue in the case giving rise to that judgment. It states that, in that case, Ryanair Holdings plc (‘Ryanair’) had acquired approximately 19% of shares of Aer Lingus Group plc and Aer Lingus Ltd (together ‘Aer Lingus’) and had subsequently initiated a public bid, and that the Commission, upheld in that respect by the General Court, viewed both transactions as forming a single concentration. According to the applicant, it follows from this that an acquisition of shares before a public bid and the public bid itself must be viewed as a single concentration.

135 It is apparent from paragraph 16 of the judgment of 6 July 2010, Aer Lingus Group v Commission (T‑411/07, EU:T:2010:281) that, in its decision declaring the proposed concentration incompatible with the internal market, the Commission had concluded as follows: ‘As Ryanair acquired the first 19% of the share capital of Aer Lingus within a period of less than 10 days before launching the public bid, and the further 6% shortly thereafter, and in view of Ryanair’s explanations of the economic purpose it pursued at the time it concluded the transactions, the entire operation comprising the acquisition of shares before and during the public bid period as well as the public bid itself is considered to constitute a single concentration within the meaning of Article 3 of the merger regulation.’

136 In that case, Ryanair had not acquired control of Aer Lingus by means of a single transaction before launching the public bid. As the Commission submits, it was the acquisition of the first 19% of the share capital of Aer Lingus, together with the acquisition of shares that Ryanair hoped to obtain by way of the public bid, which would have conferred control over Aer Lingus on Ryanair. Ultimately, Ryanair never acquired control over Aer Lingus, as the public offer lapsed following the Commission’s decision to initiate the procedure provided for in Article 6(1)(c) of Regulation No 139/2004.

137 It cannot therefore be concluded from that Commission decision that the Commission considered that the acquisition of part of the capital of an undertaking by means of a private transaction and a public offer for the outstanding shares always had to be viewed as a single concentration, even where the acquisition of part of the capital by means of a private transaction conferred on the buyer sole control of the target undertaking before the launch of the public offer.

138 Nor, in the judgment of 6 July 2010, Aer Lingus Group v Commission (T‑411/07, EU:T:2010:281), did the Court rule on whether the acquisition of sole control via a single private transaction and a subsequent mandatory public offer must be viewed as a single concentration.

139 The applicant submits that if the Commission had applied the reasoning in paragraph 101 of the Contested Decision to the case giving rise to the judgment of 6 July 2010, Aer Lingus Group v Commission (T‑411/07, EU:T:2010:281), it would have disregarded Ryanair’s purchases of shares via a private agreement prior to the launch of the public bid, particularly given that such private purchases did not result in the acquisition of control of the target undertaking.

140 That argument is not persuasive. It is precisely the fact that, in the case giving rise to the judgment of 6 July 2010, Aer Lingus Group v Commission (T‑411/07, EU:T:2010:281), the private purchase did not result in the acquisition of control of the target undertaking that meant that control, had it been obtained, would have been obtained via several transactions.

141 In the third place, the applicant relies on the LGI/Telenet decision.

142 However, that case did not involve an initial transaction by which a buyer had already acquired control of a target undertaking, followed by a second transaction by which the same buyer acquired additional shares of the same target undertaking.

143 In the case that gave rise to the LGI/Telenet decision, the first transaction was the ‘Telenet transaction’, by which Telenet acquired UPC Belgium. That first transaction did not have to be notified, as it did not meet the thresholds (see paragraph 6 of the LGI/Telenet decision). The second transaction was the ‘LGE transaction’, by which LGE acquired sole control of Telenet, including UPC Belgium (see paragraph 7 of the LGI/Telenet decision). The Commission concluded that those transactions, which were linked by de facto conditionality, constituted a single concentration.

144 The facts of the case giving rise to the LGI/Telenet decision were thus completely different from those of the present case. The applicant cannot therefore properly rely on the fact that, in the case giving rise to the LGI/Telenet decision, the Commission found that there was a single concentration, or draw any conclusions from that for the present case.

145 In the fourth place, the applicant invokes the Commission decision of 20 October 2011 (Case COMP/M.6263, Aelia/Aéroports de Paris/JV). The applicant submits that, in that case, the Commission found the first two steps of the transaction to constitute a single concentration.

146 It must be noted that that case did not concern a situation in which the first transaction was sufficient to bring about a change of control of a target undertaking and in which the subsequent transactions merely consisted in the acquisition of additional shares of the same target undertaking. The fact that the Commission found, in that case, that the first two transactions constituted a single concentration does not mean, therefore, that it considered that the acquisition of sole control of a target undertaking by means of a single purchase of shares from a single seller, on the one hand, and subsequent transactions to purchase additional shares of the target undertaking, on the other, could constitute a single concentration.

147 It must be pointed out that the applicant does not identify any example from previous decisions taken by the Commission or in the case-law of the Courts of the European Union in which it has been held that a private acquisition from a single seller conferring by itself sole control of a target undertaking, on the one hand, and a subsequent public offer for the outstanding shares of that target undertaking, on the other, constituted a single concentration. More generally, the applicant has not put forward any example in which several purchases in relation to the shares of a single target undertaking have been considered to constitute a single concentration where sole control of the target undertaking was acquired by means of the initial purchase.

(iv) The applicant’s arguments to the effect that the Commission’s position contradicts recital 20 of Regulation No 139/2004

148 The applicant also asserts that the Commission’s reasoning in the Contested Decision contradicts recital 20 of Regulation No 139/2004. It submits that recital 20 states that ‘it is moreover appropriate to treat as a single concentration transactions that are closely connected in that they are linked by condition or take the form of a series of transactions in securities taking place within a reasonably short period of time’. According to the applicant, that recital confirms the legislature’s intention that the Commission take account of the substantive connection between the various steps forming one transaction rather than its formal structure.

149 It should be borne in mind that the applicant is relying on the first possibility mentioned in the third sentence of recital 20 of Regulation No 139/2004, relating to transactions that are linked by condition (see paragraph 97 above).

150 It must be held that the single, very short, sentence cited in paragraph 148 above is not an exhaustive definition of the circumstances in which two transactions constitute a single concentration. It should be noted in that regard that whilst a recital of a regulation may cast light on the interpretation to be given to a legal rule, it cannot in itself constitute such a rule (see judgment of 11 June 2009, X, C‑429/07, EU:C:2009:359, paragraph 31 and the case-law cited). The preamble to an EU act has no binding legal force (see judgment of 19 June 2014, Karen Millen Fashions, C‑345/13, EU:C:2014:2013, paragraph 31 and the case-law cited).

151 Furthermore, if the sentence cited in paragraph 148 above were regarded as being an exhaustive definition of the circumstances in which two transactions constitute a single concentration, the effect of that would be that any transactions which are linked by condition or which take the form of a series of transactions in securities taking place within a reasonably short period of time should be treated as a single concentration, even if those transactions, taken as a whole, are not sufficient to transfer control of the target undertaking, which would make no sense.

152 It is apparent from recital 20 of Regulation No 139/2004 that the legislature intended to endorse the concept of a single concentration. It is not, however, apparent from that recital that the legislature wished to expand the concept.

153 The applicant’s arguments to the effect that the Commission’s position contradicts recital 20 of Regulation No 139/2004 must therefore be rejected.

(v) The applicant’s arguments to the effect that the Commission’s position contradicts the practice in the Member States

154 The applicant submits that the Commission’s reasoning in the Contested Decision contradicts ‘the practice in the Member States’. The applicant asserts that ‘national laws also reflect the principle that a private acquisition of a controlling shareholding followed by a public bid for the remaining shares must be treated as a single concentration’.

155 However, the only national law to which the applicant specifically refers is French law. It notes that, according to a letter from the French Minister for the Economy, Finance and Industry of 18 November 2002 to the board of the company Atria Capital Partenaires, relating to a concentration in the home hairdressing sector (Case C2002-39), ‘the acquisition ..., pursuant to a private agreement, of a so-called “controlling” stake leading to an obligation to make a [public bid] for the remaining shares’ are two steps in the same concentration.

156 The Commission contends in that regard that the French authorities were commenting on the scope of Article 6 of décret no 2002-689 du 30 avril 2002 fixant les conditions d’application du livre IV du code de commerce relatif à la liberté des prix et de la concurrence (Decree No 2002-689 of 30 April 2002 laying down the conditions for the application of Book IV of the Commercial Code on freedom of pricing and competition (JORF of 3 May 2002, p. 8055) (‘the Decree’), which it maintains is materially broader in scope than Article 7(2) of Regulation No 139/2004. Thus, the fact that the French authorities considered that Article 6 of the Decree applied to the acquisition of shares on a regulated market pursuant to a private agreement that triggered a public bid has no bearing, according to the Commission, on the interpretation of Article 7(2) of Regulation No 139/2004.

157 The applicant counters that, in the letter of 18 November 2002 from the French Minister for the Economy, Finance and Industry, the Minister first of all established that the initial acquisition and the mandatory public bid which followed it constituted a single concentration, and only then was Article 6 of the Decree examined.

158 The applicant goes on to argue that, according to the case-law, in particular the judgment of 7 November 2013, Romeo (C‑313/12, EU:C:2013:718, paragraph 22), ‘concepts taken from [EU] law should be interpreted uniformly, where, in regulating situations outside the scope of the [EU] measure concerned, national legislation seeks to adopt the same solutions as those adopted in that measure’, and that the underlying rationale is ‘to ensure that internal situations and situations governed by [EU] law are treated in the same way, irrespective of the circumstances in which the provisions or concepts taken from [EU] law are to apply’.

159 In that regard, it should be pointed out that paragraph 22 of the judgment of 7 November 2013, Romeo (C‑313/12, EU:C:2013:718) must be read in the light of paragraph 23 of the same judgment, in which it is stated that ‘such is the case where the provisions of [EU] law at issue have been made directly and unconditionally applicable by national law to such situations’.

160 The applicant has not submitted anything that would permit the inference that that is the case here. It merely refers, in paragraph 19 of the reply, to certain efforts of the French legislature and the French competition authorities to align certain notions relating to the control of concentrations used in the French Commercial Code with those used in Regulation No 139/2004 and in the various notices published by the Commission. Such alignment efforts do not mean that provisions of EU law have been made directly and unconditionally applicable.

161 In any event, the national law of a Member State or its previous practice in taking decisions cannot bind the Commission or the Courts of the European Union. According to the case-law, the EU legal order does not, in principle, aim to define concepts on the basis of one or more national legal systems unless there is express provision to that effect (see judgment of 22 May 2003, Commission v Germany, C‑103/01, EU:C:2003:301, paragraph 33 and the case-law cited).

162 Furthermore, it should be noted in this instance that the legal framework that exists in France diverges from that of EU law.

163 Article 6 of the Decree is worded as follows: ‘Where a concentration is implemented by a purchase or exchange of securities on a regulated market, its actual implementation, within the meaning of Article L. 430-4 of the Commercial Code, shall occur when the rights attached to the securities are exercised. The absence of a ministerial decision shall not prevent the transfer of those securities.’

164 Thus, on that point, French law diverges significantly from EU law. According to EU law, the transfer of the securities is sufficient for the implementation of a concentration (see paragraph 58 above), whereas, under French law, implementation occurs only when the rights attached to the securities are exercised.

165 The effect of the stance taken in the letter of 18 November 2002 from the French Minister for the Economy, Finance and Industry is therefore not that, through the application of the concept of a single concentration, an operator is permitted to acquire control of a target undertaking without prior authorisation. It is clear from that letter that ‘the suspension of effective implementation of the transaction within the meaning of Article 6 ... applies to the exercise of rights attached to securities acquired off the market as well as to the exercise of rights attached to securities which are the object of the public offer’.

166 However, in the present case, the applicant relies on the concept of ‘single concentration’ precisely in order to claim that it was entitled to implement the December 2012 Acquisition without prior notification or authorisation.

167 The applicant cannot, therefore, properly rely on the practice followed in France.

(vi) The applicant’s arguments to the effect that the Commission’s interpretation of the rationale of Article 7(2) of Regulation No 139/2004 was erroneous

168 The applicant claims that the Commission erred in concluding, in paragraph 103 of the Contested Decision, that Article 7(2) of Regulation No 139/2004 was not intended to apply to situations where establishing de facto control was straightforward.

169 It should be noted that paragraph 103 of the Contested Decision is worded as follows: ‘By contrast, Article 7(2) of [Regulation No 139/2004] is not intended to apply to situations where the procurement of a significant block of shares is carried out from just one seller and where it is straightforward to establish, on the basis of votes cast at previous ordinary and extraordinary general meetings, that this block of shares will confer de facto sole control over the target company.’

170 The Commission did not therefore claim that the mere fact that it is straightforward to establish the acquisition of control generally precludes the application of Article 7(2) of Regulation No 139/2004. In paragraph 103 of the Contested Decision, the Commission also relied on the fact that the procurement of a significant block of shares conferring de facto sole control of the target company had been carried out from just one seller.

171 It should also be noted that, in paragraph 102 of the Contested Decision, the Commission stated that Article 7(2) of Regulation No 139/2004 was intended ‘to cover situations where it is challenging to determine which particular shares or block of shares acquired from a number of previous shareholders will put the acquirer in a situation of de facto control over the target company’, and that it served the purpose ‘of providing a sufficient degree of legal certainty in the case of public bids or creeping takeovers, thereby preserving the liquidity of stock markets, and protecting bidders from unintended and unforeseen breaches of the standstill obligation’.

172 However, it must be noted that, in so doing, the Commission did not state that the application of Article 7(2) of Regulation No 139/2004 had to be limited to situations in which there were actual difficulties in establishing which shares acquired from a number of previous shareholders would put the acquirer in a situation of de facto control over the target company. In the Contested Decision, the Commission did not rely solely on the fact that it was straightforward to establish that the December 2012 Acquisition conferred on the applicant sole de facto control of Morpol in order to rule out the application of Article 7(2) of Regulation No 139/2004.

173 The applicant provides several examples to show that, even where Article 7(2) of Regulation No 139/2004 is applicable, it may be easy to establish the acquisition of control. However, given that the Commission did not assert, in the Contested Decision, that the mere fact that it is straightforward to establish the acquisition of control precludes the application of Article 7(2) of Regulation No 139/2004, the arguments which the applicant raises in that regard are not capable of establishing that the Commission made an error in the Contested Decision.

174 The applicant also argues that the true rationale of Article 7(2) of Regulation No 139/2004 corresponds to that which the Commission itself explicitly articulated in paragraph 66 of the explanatory memorandum in its Proposal for a Council Regulation on the control of concentrations between undertakings (COM(2002) 711 final) (OJ 2003 C 20, p. 4) (‘the Proposal for a Regulation’). That paragraph reads: ‘In line with what had been proposed in the Green Paper, it is proposed to enlarge the scope of application of the automatic derogation in Article 7(2) (ex-Article 7(3)) beyond public bids, so as to cover all acquisitions made from various sellers through the stock market, e.g. the so-called “creeping takeovers”, and thereby remove any legal uncertainty caused by Article 7(1) in relation to such acquisitions.’

175 It is apparent from that proposal that the Commission was suggesting enlarging the scope of application of Article 7(2) of Regulation No 139/2004 to ‘creeping takeovers’. However, in the present case, the applicant’s takeover of Morpol was not ‘creeping’. The acquisition of control of Morpol did not proceed in several stages. On the contrary, control was acquired via a single private purchase from just one seller, which was completed before the public offer for the remaining Morpol shares was launched.

176 It should also be borne in mind that the applicant explained that it was basing its reasoning on the first situation envisaged in Article 7(2) of Regulation No 139/2004, that is to say, that linked to a public bid (see paragraphs 66 and 67 above). By contrast, it is apparent from paragraph 66 of the explanatory memorandum in the Proposal for a Regulation that the Commission proposed adding the second situation which is now provided for in Article 7(2) of Regulation No 139/2004, and which relates to a series of transactions in securities, in order to remove any legal uncertainty. In view of the fact that the concentration at issue falls, according to the applicant, within the scope of the first situation envisaged in Article 7(2) of Regulation No 139/2004, it is not clear what argument the applicant seeks to derive from the fact that the Commission proposed adding the second situation in order to remove any legal uncertainty.

177 The applicant also relies on paragraph 134 of the Green Paper on the review of Regulation No 4064/89 (COM/2001/0745 final) (‘the Green Paper’), which is worded as follows: ‘“Creeping” takeovers via the stock exchange is another example of multiple transaction concentrations. Such transactions can be implemented in a number of more or less sophisticated ways, ranging from relatively straightforward direct share purchases from a number of previous shareholders to transaction structures that involve any number of financial intermediaries using a variety of financial instruments … In such scenarios, it will normally be both impractical and artificial to consider the concentration as occurring via the acquisition of the particular share or block of shares that will put the acquirer in a situation of (de facto) control over the target company. Instead, it will normally be clear from the viewpoint of all parties involved that a number of legally separate acquisitions of rights, from an economic viewpoint, form a unity, and that the intention is to acquire control over the target company …’

178 First of all, it must be observed that the purpose of a document such as the Green Paper is merely to stimulate discussion on given topics at European level.

179 It should also be noted that it is evident from the first sentence of paragraph 134 of the Green Paper that that paragraph concerns ‘creeping’ takeovers, which are an ‘example of multiple transaction concentrations’. However, it must be borne in mind that, in the present case, the concentration was not ‘creeping’ and that control of Morpol was acquired via a single transaction and not by means of multiple transactions.

180 Furthermore, paragraph 134 of the Green Paper mentions ‘the intention … to acquire control over the target company’ in relation to ‘a number of legally separate acquisitions of rights’. In the present case, only the December 2012 Acquisition was implemented with the intention of acquiring control of Morpol. Admittedly, the applicant carried out a complete takeover of Morpol and, in order for it to do so, a number of purchases were necessary, notably the December 2012 Acquisition and purchases from various Morpol shareholders in the context of the public offer. However, given that the applicant had sole control of Morpol once the December 2012 Acquisition was implemented, the subsequent purchases were not carried out with the intention of acquiring control over the target company.

181 It must also be noted that the Green Paper correctly states that, ‘in such scenarios, it will normally be both impractical and artificial to consider the concentration as occurring via the acquisition of the particular share or block of shares that will put the acquirer in a situation of (de facto) control over the target company’. However, that statement relates only to the scenario of a ‘creeping’ takeover. Indeed, where several acquisitions of shares or blocks of shares are necessary in order to acquire control of the target company, it would be artificial to regard the purchase of the ‘decisive’ share or package of shares in insolation as a concentration.

182 Nevertheless, in a situation such as that of the present case, in which sole control of the only target undertaking was acquired from one seller by means of a single initial transaction, it is certainly not artificial to regard that transaction as constituting, by itself, a concentration.

183 The applicant emphasises, moreover, that the objective of extending the derogation provided for in Article 7(2) of Regulation No 139/2004 was to remove any legal uncertainty (see paragraph 174 above). According to the applicant, it is apparent from paragraph 134 of the Green Paper that Article 7(2) of Regulation No 139/2004 must apply even to a straightforward transaction structure in order to facilitate public bids and creeping takeovers.

184 In that regard, it should be noted that Article 7(2) of Regulation No 139/2004 can indeed apply even to a case of a straightforward transaction structure. However, in the present case, it is not the straightforwardness of the transaction as such that precludes Article 7(2) of Regulation No 139/2004 from being applicable, but the fact that control had already been acquired from a single seller by means of the initial transaction.

185 It must also be pointed out that, in accordance with Article 5 of Directive 2004/25/EC of the European Parliament and of the Council of 21 April 2004 on takeover bids (OJ 2004 L 142, p. 12), Member States are to ensure that a person who has acquired control of a company by means of an acquisition of securities is required to make a bid as a means of protecting the minority shareholders of that company. That bid must be addressed to all the holders of those securities for all their holdings. It follows from this that the obligation of an undertaking which has acquired securities conferring on it control of a target company via a private acquisition to submit a public bid in respect of the remainder of the target company’s shares concerns all the Member States of the European Union.

186 The effect of following the applicant’s reasoning, according to which the acquisition of control by means of a single private transaction followed by a mandatory public offer constitutes a single concentration, would be 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. There is always an obligation to submit a public bid which, according to the applicant’s reasoning, is part of a single concentration encompassing the purchase conferring control as well as the public offer. 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.

187 As regards the applicant’s argument that the rationale of Article 7(2) of Regulation No 139/2004 is to facilitate public bids and creeping takeovers, in the first place, it should be borne in mind that the Commission did not impose a fine on the applicant because of the implementation of the public offer but because of the implementation of the December 2012 Acquisition. In the second place, it should be borne in mind that, as stated in paragraph 175 above, the takeover was not ‘creeping’, in this case.

188 It does not appear that the stance taken by the Commission in the Contested Decision is contrary to the principle of legal certainty. It will be recalled that the situation in the present case is not covered by the wording of Article 7(2) of Regulation No 139/2004 (see paragraphs 68 to 83 above). The fact that the Commission did not extend the scope of application of the concept of ‘single concentration’ to cover situations in which control of a single target undertaking is acquired by means of an initial transaction does not conflict with the principle of legal certainty.

189 Even if one refers to the Green Paper in order to determine the rationale of Article 7(2) of Regulation No 139/2004, as suggested by the applicant, it does not appear to be contrary to the rationale of that provision to exclude from its scope of application a situation in which an undertaking acquires sole control of the single target undertaking by means of an initial private purchase of shares from a single seller, even if that is followed by a mandatory public offer.

190 The applicant also claims that the Commission’s interpretation, in paragraphs 102 and 103 of the Contested Decision, of the rationale of Article 7(2) of Regulation No 139/2004 is incompatible with the General Court’s interpretation in the judgment of 6 July 2010, Aer Lingus Group v Commission (T‑411/07, EU:T:2010:281, paragraph 83). The applicant notes that, in that judgment, the General Court ‘upheld the Commission’s approach of applying Article 7(2) of [Regulation No 139/2004] to a purchase of a minority stake of 19% in Aer Lingus made prior to a launch of a public bid, which it considered to be unitary in nature and to constitute one single concentration, even though it was presumably straightforward to conclude that such minority stake did not confer control’.

191 In that regard, it should be noted that, in the judgment of 6 July 2010, Aer Lingus Group v Commission (T‑411/07, EU:T:2010:281, paragraph 83), the Court stated that ‘the acquisition of a shareholding which does not, as such, confer control for the purposes of Article 3 of [Regulation No 139/2004] may fall within the scope of Article 7’. What is apparent from that judgment is merely that it is possible that the acquisition of a minority stake which does not confer control of the target undertaking, followed by a public bid, may form part of a single concentration which falls within the scope of Article 7(2) of Regulation No 139/2004. The Court was not, however, required to rule on a situation in which the first transaction had already conferred control over the target undertaking (see paragraph 138 above).

192 It must be held that, in the case of an acquisition of a minority stake, which does not confer control over the target undertaking and which is followed by a public bid, the two transactions may be implemented with the intention of acquiring control of the target undertaking. However, since, in the present case, the first transaction had already conferred sole de facto control of Morpol on the applicant, it cannot be accepted that the public bid was launched with the intention of acquiring control of Morpol (see paragraph 180 above).

193 The applicant’s arguments based on the judgment of 6 July 2010, Aer Lingus Group v Commission (T‑411/07, EU:T:2010:281) must therefore be rejected.

194 The applicant further claims that Article 7(2) of Regulation No 139/2004 must be interpreted in its favour because of the criminal nature of the fine, within the meaning of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’). In its view, the Contested Decision contradicts the principle that the criminal law must not be extensively construed to an accused’s detriment. The interpretation of Article 7(2) of Regulation No 139/2004 in the Contested Decision involved the use of such broad notions and such vague criteria that the criminal provision in question was not of the quality required under the ECHR in terms of its clarity and the foreseeability of its effects.

195 The Commission contends that, according to Article 14(4) of Regulation No 139/2004, fines imposed under that article are not to be criminal in nature.

196 It should be stated that, even if it were to be assumed that the penalties provided for in Article 14(2) of Regulation No 139/2004 are of a criminal law nature, the applicant’s arguments would have to be rejected.

197 In the first place, the applicant’s argument that the provision in question was not of the quality required under the ECHR in terms of its clarity and the foreseeability of its effects concerns, in essence, the alleged breach of the principle nullum crimen, nulla poena sine lege, put forward by the applicant in the context of the first part of the fourth plea in law, which will be examined in paragraphs 376 to 394 below.

198 In the second place, as regards the applicant’s argument that the Contested Decision contradicts the principle that the criminal law must not be extensively construed to an accused’s detriment, the Court notes the following.

199 As the Commission correctly states, the applicant was not fined for having infringed Article 7(2) of Regulation No 139/2004. Rather, it was fined, in accordance with Article 14(2)(a) and (b) of Regulation No 139/2004, for having infringed Article 4(1) and Article 7(1) of Regulation No 139/2004.

200 It should also be borne in mind that Article 7(2) of Regulation No 139/2004 lays down an exception to Article 7(1) of Regulation No 139/2004.

201 The Commission rightly emphasises that it is settled case-law that exceptions must be interpreted narrowly (see, to that effect, judgments of 17 June 2010, Commission v France, C‑492/08, EU:C:2010:348, paragraph 35, and of 23 October 2014, flyLAL-Lithuanian Airlines, C‑302/13, EU:C:2014:2319, paragraph 27). As regards competition law specifically, and notably the interpretation of the provisions of block exemption regulations, the Court confirmed, in paragraph 48 of the judgment of 8 October 1996, Compagnie maritime belge transports and Others v Commission (T‑24/93 to T‑26/93 and T‑28/93, EU:T:1996:139), that, having regard to the general principle of the prohibition of agreements restricting competition, provisions derogating therefrom in an exempting regulation had, by their nature, to be strictly interpreted. The mere fact that the Commission can impose severe penalties for infringement of a provision of competition law does not, therefore, call in question the fact that provisions derogating therefrom must be strictly interpreted. Furthermore, in the judgment of 22 March 1984, Paterson and Others (90/83, EU:C:1984:123), which concerned questions referred for a preliminary ruling in criminal proceedings (see paragraph 2 of that judgment), the Court of Justice held, in paragraph 16, that an article which envisages derogations from the general rules contained in a regulation cannot be interpreted so as to extend its effects further than is necessary for the protection of the interests which it is intended to safeguard. That judgment confirms that the principle that exceptions must be interpreted narrowly applies even in criminal cases.

202 In any event, it should be noted that, according to the wording of Article 7(2) of Regulation No 139/2004, that provision is not applicable to situations such as those at issue in the present case (see paragraphs 68 to 83 above).

203 The applicant is endeavouring, in essence, to expand the scope of application of the concept of ‘single concentration’ in order to expand the scope of application of the exception provided for in Article 7(2) of Regulation No 139/2004.

204 Even if the fines imposed under Article 14 of Regulation No 139/2004 were of a criminal law nature, it cannot be concluded in the present case that the Commission applied the criminal law extensively to the accused’s detriment. The Commission merely refused to extend the scope of application of the exception provided for in Article 7(2) of Regulation No 139/2004 beyond its wording and to apply the concept of ‘single concentration’ to a situation in which sole control of the single target undertaking was acquired by means of a single private purchase from one seller, prior to the launch of a mandatory public bid.

205 The applicant’s argument must, therefore, be rejected.

206 The applicant further claims that the Contested Decision is incompatible with the purpose of Article 7(2) of Regulation No 139/2004, ‘which is to facilitate takeovers and ensure the liquidity of stock markets’. According to the applicant, the Contested Decision negatively impacts only companies that have a corporate governance model that is typically used by companies based in continental Europe and Scandinavia, thereby de facto discriminating between companies established there and companies based in the United Kingdom and the United States, by making it more difficult to acquire, and hence hindering investment in, companies based in continental Europe and Scandinavia, and detrimentally impacting capital markets and companies based there. The reason for this, it claims, is that companies in continental Europe and Scandinavia are typically characterised by large and concentrated shareholders as opposed to United Kingdom and United States companies, which tend to have a dispersed shareholding structure. The refusal, in the Contested Decision, to apply the public bid exemption under Article 7(2) of Regulation No 139/2004 to an initial acquisition of a controlling stake as well as to the ensuing mandatory public bid is relevant only for companies that have ‘concentrated’ shareholders.

207 It should be noted that, in claiming discrimination between companies established in continental Europe and Scandinavia and companies established in the United Kingdom and the United States, the applicant relies, in essence, on the principle of equal treatment. According to settled case-law, the general principle of equal treatment and non-discrimination requires that comparable situations are not treated differently unless differentiation is objectively justified (see judgment of 11 July 2007, Centeno Mediavilla and Others v Commission, T‑58/05, EU:T:2007:218, paragraph 75 and the case-law cited).

208 In the present case, it must be stated that the two situations — on the one hand, the acquisition of control of a single target undertaking by means of a single purchase of shares from a single seller, followed by a mandatory public bid, and, on the other, the acquisition of control by means of a public bid or from various sellers in a series of transactions — are not comparable, and there is therefore nothing to preclude a difference in treatment. In a situation in which sole control of a single target undertaking is acquired by means of the initial transaction alone, it is certainly not artificial to regard that transaction as constituting, by itself, a concentration (see paragraph 182 above). The mere fact that the first situation may be more common in continental Europe and Scandinavia than in the United Kingdom or United States does not mean that those situations must be treated identically.

209 Moreover, the mere fact that Article 7(2) of Regulation No 139/2004 is intended to facilitate takeovers and ensure the liquidity of stock markets, as the applicant submits, does not mean that it is necessary to extend the scope of that provision beyond its wording in order to further facilitate takeovers.

210 In the Contested Decision and in the defence, the Commission indicates several ways in which the applicant could have implemented the concentration at issue without infringing Article 4(1) and Article 7(1) of Regulation No 139/2004. Thus, it states, in paragraph 106 of the Contested Decision, that the applicant could have launched the public offer without having acquired Mr M.’s shares beforehand (first option), and that the applicant could have signed an agreement with Mr M. for the purchase of shares before the launch of the public offer, postponing closing, however, until clearance from the competition authorities (second option).

211 The applicant submits in this regard that those options could harm the target company’s minority shareholders, facilitate market abuse and frustrate the aims of Directive 2004/25. With regard to the first option, it emphasises that the Commission’s policy actively seeks to prevent the acquirer from replacing a mandatory bid structure with a voluntary bid because that would allow offerors to avoid having to launch a mandatory bid for an equitable price. Furthermore, in the case of Morpol, the launch of a voluntary bid would not have been practically feasible because the acquisition of Morpol was commercially linked with the acquisition of auxiliary companies controlled by Mr M. and those legal entities could not have been transferred as part of a voluntary bid. With regard to the second option, the applicant submits that it would create a floor price that could be manipulated and artificially increased contrary to the objective of Directive 2004/25, which seeks to prevent the risk of market abuse.

212 It must be noted in that regard that it was for the applicant to structure the concentration in such a way as would, in its view, best meet its needs, while complying with its obligations under Article 4(1) and Article 7(1) of Regulation No 139/2004. As the Commission states, it does not in any way recommend or prescribe a particular way in which the applicant must structure its transaction.

213 In addition, as regards the second option set out in paragraph 210 above, the following should be noted in relation to the applicant’s argument concerning a risk of manipulation of the share price.

214 The approach taken in the Contested Decision does not give rise to any difficulty as regards the protection of the rights of minority shareholders. As the applicant points out, under Norwegian takeover rules, the offeror must pay for the remaining shares at a price that is the higher of: (i) the price that the offeror has paid or agreed in a six-month period prior to the time the mandatory bid is triggered (that is to say, the price agreed in the SPA); or (ii) the market price existing at the time the mandatory bid obligation is triggered. Minority shareholders can certainly therefore obtain an equitable price for their shares.

215 The applicant submits however that, should Article 7(2) of Regulation No 139/2004 not be applicable, the offeror would have to postpone the public bid until he receives the Commission’s merger clearance, when the floor price may have increased as a result of the quoted market price exceeding the price agreed in the SPA. The floor price is thus prone to manipulation and inflation, potentially requiring the offeror to purchase the remaining shares at a price exceeding the SPA price, that is to say, the equitable price.

216 In that regard, it must be noted that there may, in principle, be a risk of upward manipulation of the share price. However, if the applicant had considered that there was such a risk in the present case, it could have asked the Commission to grant it a derogation under Article 7(3) of Regulation No 139/2004. According to that provision, the Commission may, on request, grant a derogation from the obligations imposed in Article 7(1) and (2) of Regulation No 139/2004.

217 The Commission states in that regard that it has previously granted derogations under Article 7(3) of Regulation No 139/2004 precisely in situations where a delay in launching a public bid could have resulted in market manipulation. It presents as an example its decision of 20 January 2005 (Case COMP/M.3709 — Orkla/Elkem) (‘the Orkla/Elkem decision’), taken pursuant to Article 7(3) of Regulation No 139/2004. In the case that gave rise to that decision, Orkla, which already held 39.85% of Elkem’s shares, entered into individual agreements with three other Elkem shareholders. Pursuant to those agreements, Orkla was to acquire sole control of Elkem. Implementation of the transaction would have obliged Orkla to make a mandatory public offer for Elkem’s remaining shares under Norwegian law.

218 Prior to implementing each of those agreements, Orkla applied to the Commission for a derogation pursuant to Article 7(3) of Regulation No 139/2004. It emphasised that, due to the very limited free float of Elkem shares, it would not be very difficult to push the market price of those shares to a higher level. Within six days of receiving Orkla’s request, the Commission granted a derogation, stating that ‘the suspension of the operation may have the effect on Orkla that, when complying [with] the applicable Norwegian securities legislation, Orkla would incur a considerable risk [of having] to make an offer for the outstanding shares in Elkem for a considerably higher price after the operation has been declared compatible with the [internal] market’. The Commission conducted a balancing exercise in respect of the interests and noted that the suspension obligation could seriously affect the financial interests of Orkla, the transaction did not seem to pose a threat to competition and a derogation did not affect any legitimate right of any third party.

219 The case that gave rise to the Orkla/Elkem decision shows, therefore, that the possibility of applying for derogations under Article 7(3) of Regulation No 139/2004 represents an efficient means of responding to situations in which there is a risk of share price manipulation.

220 The applicant submits, in es