Summary of Commission Decision of 27 June 2019 imposing fines for failing to notify a concentration in breach of Article 4(1) of Council Regulation (EC) No 139/2004 and for implementing a concentration in breach of Article 7(1) of that Regulation (Case M.8179 — Canon/Toshiba Medical Systems Corporation) (notified under document C(2019) 4559) (Only the English version is authentic)2019/C 362/06
Date: 2019-06-27
Institutions: Directorate-General for Competition, European Commission
Subjects: economic concentration, medical device, merger control, sanction (EU)








C_2019362EN.01000801.xml










28.10.2019   


EN


Official Journal of the European Union


C 362/8






Summary of Commission Decision
of 27 June 2019
imposing fines for failing to notify a concentration in breach of Article 4(1) of Council Regulation (EC) No 139/2004 and for implementing a concentration in breach of Article 7(1) of that Regulation
(Case M.8179 — Canon/Toshiba Medical Systems Corporation)


(notified under document C(2019) 4559)


(Only the English version is authentic)
(2019/C 362/06)
I.   FACTUAL BACKGROUND

A.   The undertakings concerned









(1)


Canon is a publicly listed multinational company, specialised in the manufacture of imaging and optical products, including cameras, camcorders, photocopiers, steppers, and computer printers.












(2)


Toshiba Medical Systems Corporation (‘TMSC’) was a company active in the development, manufacture, sale, and provision of technical services for medical equipment. Following the TMSC’s acquisition by Canon, TMSC was renamed Canon Medical Systems Corporation.




B.   The Canon/TMSC Transaction









(3)


In early 2016, in an attempt to overcome serious financial difficulties before the publication of its 2016 financial results, Toshiba decided to sell its 100 % owned medical business, TMSC. Toshiba needed to receive the consideration for TMSC’s sale before 31 March 2016 (end of its financial year 2015). To that end, Toshiba organised an accelerated bidding process in which Canon competed and eventually prevailed.












(4)


Canon’s acquisition of TMSC involved a complex two-step transaction structure:






a)


In the first step, by agreement executed on 17 March 2016, Canon acquired one non-voting share and 100 share options attached to TMSC’s ordinary voting shares (1) (for approximately EUR 5 280 million, corresponding to the full price of the acquisition of TMSC) from Toshiba. Pursuant to another agreement concluded on the same day, MS Holding, a special purpose vehicle, which was created specifically for the purposes of the transaction, acquired 20 remaining voting shares from Toshiba (for approximately EUR 800). The two operations are together referred to as the Interim Transaction.










b)


In the second step, after having obtained the last of the relevant merger clearances, Canon exercised the 100 share options to acquire the underlying voting shares in TMSC, whereas TMSC acquired the non-voting share from Canon (for approximately EUR 40) and the 20 remaining voting shares from MS Holding (for approximately EUR 300 000) (together referred to as the ‘Ultimate Transaction’).
















(5)


Canon, Toshiba, and MS Holding completed the Interim Transaction on 17 March 2016. Canon completed the Ultimate Transaction on 19 December 2016, after having obtained the last of the relevant merger clearances, namely from the Ministry of Commerce of the People’s Republic of China.












(6)


The entire transaction scheme, consisting in the acquisition of sole control by Canon over TMSC by means of the Interim Transaction and the Ultimate Transaction, is referred to in this Decision as the ‘Concentration’.




C.   Merger Control Proceedings Before the Commission









(7)


On 12 August 2016, Canon notified the acquisition of sole control over TMSC by way of acquisition of 100 % of its shares to the Commission pursuant to Article 4 of the Merger Regulation, under the normal merger procedure. Canon specified on a without prejudice basis that the notification should be understood as covering the entire Concentration (2).












(8)


When assessing the Concentration, the Commission’s investigation did not provide any indication that competition concerns would be likely to arise. For this reason, on 19 September 2016, the Commission adopted a decision under Article 6(1)(b) of the Merger Regulation and Article 57 of the Agreement on the European Economic Area (‘EEA’) declaring the Concentration compatible with the internal market and with the EEA Agreement (the ‘Approval Decision’) (3).




II.   INFRINGEMENT PROCEEDINGS UNDER ARTICLE 14(2) OF THE MERGER REGULATION









(9)


On 29 July 2016, the Commission informed Canon that it was carrying out an investigation which might lead to the imposition of fines pursuant to Articles 14(2)(a) and (b) of the Merger Regulation for possible breaches of the notification requirement and the standstill obligation enshrined in Articles 4(1) and 7(1) of the Merger Regulation.












(10)


On 6 July 2017, the Commission issued a Statement of Objections (‘SO’), preliminarily concluding that Canon had intentionally or at least negligently breached Articles 4(1) and 7(1) of the Merger Regulation. After declining the possibility to engage in a settlement procedure, Canon replied to the SO on 15 March 2018 and also expressed its views in an oral hearing on 3 May 2018.












(11)


On 30 November 2018, the Commission issued a Supplementary SO (‘SSO’), preliminarily concluding that Canon’s conduct constituted an infringement of Articles 4(1) and 7(1) of the Merger Regulation, also on the basis of the refined legal interpretation provided in the Ernst & Young judgement of the Court of Justice (4). Canon replied to the SSO on 21 January 2019 and also expressed its views in a second oral hearing on 14 February 2019.




III.   LEGAL FRAMEWORK

A.   Articles 4(1) and 7(1) of the Merger Regulation and their Objectives









(12)


Under the Merger Regulation, concentrations (5) having a Union dimension as defined in Article 1 of that Regulation shall be appraised by the Commission with a view of establishing whether they are compatible with the internal market (6).












(13)


Pursuant to Article 4(1) of the Merger Regulation ‘concentrations with a [Union] dimension defined in this Regulation shall be notified to the Commission prior to their implementation and following the conclusion of the agreement, the announcement of the public bid, or the acquisition of a controlling interest.’












(14)


Article 7(1) of the Merger Regulation specifies that ‘a concentration with a [Union] dimension ... shall not be implemented either before its notification or until it has been declared compatible with the common market pursuant to a decision under Articles 6(1)(b), 8(1) or 8(2), or on the basis of a presumption according to Article 10(6).’












(15)


Articles 4(1) and 7(1) of the Merger Regulation are cornerstones of the ex-ante Union merger control regime and are essential to ensure its effectiveness. They require undertakings to notify concentrations with a Union dimension and to not implement these concentrations before notification or before they have been declared compatible with the internal market (7).




B.   The notion of ‘concentration’ in the Merger Regulation









(16)


The notification requirement in Article 4(1) and the standstill obligation in Article 7(1) of the Merger Regulation apply to concentrations within the meaning of Article 3 of the Merger Regulation (8).












(17)


Pursuant to Article 3 of the Merger Regulation, a concentration is deemed to arise where there is a change of control on a lasting basis, which may result either from the merger between two undertakings or from the acquisition of control of another undertaking (9). While generally a concentration arises as a result of one single transaction, the concept of concentration within the meaning of Article 3 of the Merger Regulation may encompass several legally distinct but closely connected transactions, which constitute a ‘single concentratio
n’. The concept of single concentration is referred to in recital 20 of the preamble to the Merger Regulation which states: ‘[i]t 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 tim
e’. According to the General Court in Cementbouw, to determine whether several transactions form part of a single concentration, regard should be given to ‘the economic aim pursued by the partie
s’ (10).












(18)


The specific scenario of warehousing schemes, i.e., two-step schemes involving (for an interim period) a third party, is discussed in paragraph 35 of the Consolidated Jurisdictional Notice (‘CJN’). Under such schemes, ‘an undertaking is “parked” with an interim buyer, often a bank, on the basis of an agreement on the future onward sale of the business to an ultimate acquirer. The interim buyer generally acquires shares “on behalf” of the ultimate acquirer, which often bears the major part of the economic risks and may also be granted specific rights. In such circumstances, the first transaction is only undertaken to facilitate the second transaction and the first buyer is directly linked to the ultimate acquirer. […] no other ultimate acquirer is involved, the target business remains unchanged, and the sequence of transactions is initiated alone by the sole ultimate acquirer.’ Against this background, the CJN concludes that it is appropriate to treat ‘the transaction by which the interim buyer acquires control in such circumstances as the first step of a single concentration comprising the lasting acquisition of control by the ultimate acquire
r’. Therefore, the two transactions (the interim transaction and the ultimate transaction) in a warehousing scheme constitute two stages of a single concentration.












(19)


The conclusion drawn in paragraph 35 of the CJN reflects both recital 20 of the preamble to the Merger Regulation and the interpretation of the concept of ‘single concentratio
n’ by the General Court in Cementbouw (11). Indeed, in the context of warehousing schemes as described in paragraph 35 of the CJN, when looking at the entire deal structure in its full economic reality, it is evident that the two transactions — the interim transaction and the ultimate transaction — are closely connected. The interim transaction is only undertaken for the purpose of carrying out the ultimate transaction on the basis of which the ultimate acquirer obtains control over the target on a lasting basis. It follows that the interim transaction, in itself not entailing an acquisition of control on a lasting basis, forms part of a single concentration whereby the ultimate buyer acquires control over the target.












(20)


Consequently, in line with the Union rules and the Union Courts’ case law, the concept of single concentration implies that a transaction that is transitory in nature and not long-lasting — and, hence, not constituting in and of itself a notifiable concentration — may be considered as part of a single notifiable concentration.




C.   The notion of ‘implementation’ in the Merger Regulation









(21)


According to the Court of Justice, the notion of ‘implementatio
n’ in Articles 4(1) and 7(1) of the Merger Regulation must be interpreted by reference to the ‘purpose and general schem
e’ of these provisions (12). Moving from that premise, the Ernst & Young judgment clarified the concept of implementation of a concentration pursuant to Article 7(1) of the Merger Regulation (which naturally corresponds to the concept of implementation pursuant to Article 4(1) of the Regulation).












(22)


The Court first indicated that Article 7(1) of the Merger Regulation, which prohibits the early implementation of a concentration, limits that prohibition to ‘concentration
s’ as defined in Article 3 of the Merger Regulation, thus excluding from its scope transactions that ‘cannot be regarded as contributing to the implementation of a concentratio
n’ (13). It follows that the implementation of a concentration within the meaning of Article 7 of the Merger Regulation ‘arises as soon as the merging parties implement operations contributing to a lasting change in the control of the target undertaking’ (14).












(23)


Further, the Court explicitly clarified that ‘partial implementation of a concentration falls within the scope of that articl
e’, as otherwise the effective control of concentrations would not be ensured (15).












(24)


The Court then added that it is for the same purpose of ensuring an effective ex-ante control of concentrations that recital 20 of the preamble to the Merger Regulation provides that ‘it is appropriate to treat as a single concentration transactions that are closely connecte
d’ (16). The Court explained that this close connection requirement excludes from the scope of Article 7(1) transactions which ‘despite having been carried out in the context of a concentration, are not necessary to achieve a change of control of an undertaking concerned by that concentratio
n’ (17). The Court clarified that ‘those transactions, although they may be ancillary or preparatory to the concentration, do not present a direct functional link with its implementation, so that their implementation is not, in principle, likely to undermine the efficiency of the control of concentration
s’ (18).












(25)


Thus, the Court made clear that, in order to determine if there is early implementation, transactions carried out in the context of a concentration should be considered ‘necessary to achieve a change of contro
l’ over the target undertaking if they ‘present a direct functional link with [the] implementatio
n’ of the concentration (19). It is in this sense that the Court held that a concentration is implemented ‘by a transaction which, in whole or in part, in fact or in law, contributes to the change in control of the target undertakin
g’ (20).












(26)


Against this background, in the scenario of ‘parking’ or ‘warehousing’ schemes described in paragraph 35 of the CJN, the implementation of the first step of a single concentration (i.e., the interim transaction) generally already amounts to the early implementation of the concentration. This is because the two steps are inherently closely connected and within the structure chosen by the parties, the interim transaction is generally necessary to achieve a change of control in the target undertaking, in the sense that it presents a direct functional link with the implementation of the concentration. This means that the interim transaction contributes (at least in part) to the change in control of the target undertaking, as required in Ernst & Young.





IV.   APPLICATION TO THE CASE

A.   The Interim Transaction and the Ultimate Transaction together constitute a single concentration









(27)


Taking into account the legal framework set out in Section II and based on the available evidence, the Commission considers for the purposes of this case, that the Interim Transaction and the Ultimate Transaction constitute a single concentration within the meaning of Article 3 of the Merger Regulation and the case law of the Union Courts. This is because, despite being legally separate successive transactions, they form part of a single economic project through which Canon acquired control over TMSC from Toshiba for the following reasons.












(28)


First, based on the overall body of evidence collected in this case, the Commission considers that the Interim Transaction was only undertaken in view of the Ultimate Transaction.












(29)


Second, the transaction agreements and various internal documents of Canon show that, from the outset, MS Holding was intended to exclusively act as an interim buyer and that its sole purpose was to facilitate the acquisition by Canon of control over TMSC. This is evidenced by (i) the fact that Canon proposed, and actively participated in, the setting up of MS Holding, including the design of its corporate structure and (ii) MS Holding’s lack of genuine economic interest in TMSC beyond its role as interim buyer for which it was remunerated at a fixed price.












(30)


Third, Canon was the only party that could determine the identity of TMSC’s ultimate acquirer, either (i) by exercising its share options after receiving all antitrust approvals, or (ii) in the (unlikely) event of the absence of antitrust approvals, by selling the share options to an acquirer of its choice. Canon did not contest this. By pre-paying irreversibly the full amount (EUR 5 280 million) for TMSC, Canon bore the economic risk of the overall operation as of the Interim Transaction.












(31)


In light of the above, the Commission concludes that the Interim and Ultimate Transactions constituted together a single concentration given that the Interim Transaction




B.   The Interim Transaction contributed to a lasting change of control over TMSC









(32)


Taking into account the legal framework set out in Section II and based on the available evidence, the Commission considers that within the structure chosen by the Parties, the Interim Transaction contributed to a lasting change of control over TMSC. The Interim Transaction was necessary to achieve a change of control in TMSC, in the sense that it presented a direct functional link with the implementation of the concentration for the following reasons.












(33)


First, the two-step deal structure involving an interim buyer was proposed by Canon and agreed with Toshiba during the bidding process for TMSC. This structure was put in place to allow that, at the time of the Interim Transaction, Canon would transfer the full price of the Ultimate Transaction, and TMSC would cease being controlled by Toshiba (which is the first step for the change from Toshiba’s control over TMSC to Canon’s control).












(34)


Without the two-step transaction structure proposed by Canon, it would have been impossible for Toshiba to relinquish control over TMSC and receive the TMSC payment irreversibly before the end of March 2016, because Toshiba would have had to wait for antitrust clearances on the TMSC sale. Among the proposals that Toshiba proposed and received, Canon’s two-step transaction structure was the only one that allowed the change in control over TMSC in a way that would address the financial needs of Toshiba.












(35)


Second, Canon was heavily involved in the sale of voting shares in TMSC to MS Holding at the time of the Interim Transaction. Canon made proposals and comments on the setting up of MS Holding and on the agreement between Toshiba and MS Holding regarding the purchase of voting shares in TMSC.












(36)


Third, by paying irreversibly the full price for the acquisition of TMSC already at the stage of the Interim Transaction, Canon became the only party that could ultimately determine the identity of TMSC’s ultimate acquirer and bore the economic risk of the overall operation from the start. MS Holding’s control over TMSC was temporary by definition.












(37)


In light of the above, the Commission concludes that the Interim Transaction contributed (at least in part) to the change in control of the target undertaking, within the meaning of the Ernst & Young judgment (21). It follows that the Interim Transaction constituted a partial implementation of the concentration by which Canon acquired lasting control over TMSC.




C.   The Concentration was implemented before notification to and clearance by the Commission









(38)


By carrying out the Interim Transaction on 17 March 2016 (when the two agreements giving rise to the Interim Transaction were executed), Canon partially implemented, within the meaning of Article 4(1) of the Merger Regulation, the Concentration by which it acquired lasting control over TMSC prior to its notification to the Commission, which took place on 12 August 2016.












(39)


By carrying out the Interim Transaction on 17 March 2016 (when the two agreements giving rise to the Interim Transaction were executed), Canon partially implemented, within the meaning of Article 7(1) of the Merger Regulation, the Concentration by which it acquired lasting control over TMSC prior to its clearance by the Commission, which was granted on 19 September 2016.












(40)


The Commission therefore concludes that Canon implemented (partially) its Concentration before notification to, and clearance by, the Commission and thus, breached Articles 4(1) and 7(1) of the Merger Regulation.




D.   Canon acted at least negligently









(41)


The Commission considers that Canon’s infringements were at least negligent because Canon knew, or at least should have known, that its conduct would infringe Articles 4(1) and 7(1) of the Merger Regulation. The Commission takes into account the following reasons.












(42)


First, Canon is a large multinational company, which has substantial legal resources at its disposal. The Commission therefore considers that Canon was aware of the Union merger control rules and the obligations that these rules entail.












(43)


Second, paragraph 35 CJN, which remains unchanged since its adoption on 10 July 2007, gave a clear explanation to undertakings on the Commission’s approach to warehousing structures. This explanation was not contradicted by the Union Courts’ judgments in Odile Jacob. In these judgments, the Union Courts did not assess nor rule on whether, in the context of reportable concentrations structured through warehousing, the implementation of the interim transaction before notification to, and clearance, by the Commission infringes Articles 4(1) and/or 7(1) of the Merger Regulation (22).












(44)


Third, even if Canon was in doubt as to the legality of the transaction structure of the Concentration, it could and should have approached the Commission through the process of consultation on the applicability of Articles 4(1) and 7(1) of the Merger Regulation. Canon did not do so.












(45)


In light of the above, the Commission concludes that that Canon’s infringements of Articles 4(1) and 7(1) of the Merger Regulation have been carried out at least negligently.




V.   FINES









(46)


The Commission considers that Canon’s procedural infringements warrant significant fines taking account of the following facts and elements:






a)


The infringements committed by Canon are serious in nature because they undermine the effectiveness of the Union merger control system.










b)


As regards gravity, Canon’s conduct was at least negligent because Canon knew, or at least should have known, that its conduct would infringe Articles 4(1) and 7(1) of the Merger Regulation. The Commission also takes into account that the Canon/TMSC transaction did not raise competitive concerns and was declared compatible with the internal market by the Commission in a decision based on Article 6(1) of the Merger Regulation.










c)


Regarding duration, the infringement of Article 4(1) of the Merger Regulation was instantaneous and the infringement of Article 7(1) of the Merger Regulation lasted 6 months and 2 days, and it was therefore relatively limited in time.










d)


There are no aggravating or mitigating circumstances in this case.
















(47)


The overall amounts of the fines imposed in this case for the infringements are proportionate to the nature, gravity, and duration of both infringements.




VI.   AMOUNT OF THE FINES









(48)


Given the specific circumstances of the case at hand and, in particular, the nature, gravity, and duration of the infringements discussed in Section IV above, the Commission considers it appropriate to impose fines under Article 14(2)(a) and (b) of the Merger Regulation of EUR 14 000 000 for the infringement of Article 4(1) of the Merger Regulation and of EUR 14 000 000 for the infringement of Article 7(1) of the Merger Regulation.






(1)  As long as the share options were not exercised, the voting rights attached to the underlying shares could not be exercised. The share options could not be exercised before all relevant antitrust approvals were obtained.

(2)  Form CO in Case M.8006 — Canon/Toshiba Medical Systems Corporation, paragraph 8.

(3)  Case M.8006 — Canon/Toshiba Medical Systems Corporation.

(4)  Judgment of 31 May 2018, Ernst & Young
P/S v Konkurrencerådet, C-633/16, ECLI:EU:C:2018:371.

(5)  Pursuant to Article 3(1) of the Merger Regulation: ‘A concentration shall be deemed to arise where a change of control on a lasting basis results from: (a) the merger of two or more previously independent undertakings or parts of undertakings, or (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.’

(6)  Article 2(1) of the Merger Regulation.

(7)  Judgment of 12 December 2012, Electrabel v Commission, T-332/09, EU:T:2012:672, paragraphs 245-246.

(8)  The Court recognised that defining the concept of concentration under Article 3 of the Merger Regulation is key for the definition of the scope of Article 7 of the Merger Regulation. See Ernst & Young, paragraph 44.

(9)  Articles 3(1) and 3(2) of the Merger Regulation.

(10)  Judgment of 23 February 2006, Cementbouw Handel & Industrie v Commission, Case T-282/02, EU:T:2006:64, paragraph 106.

(11)  Cementbouw Handel & Industrie v Commission, paragraph 106.

(12)  Ernst & Young, paragraph 40.

(13)  Ernst & Young, paragraph 43.

(14)  Ernst & Young, paragraph 46.

(15)  Ernst & Young, paragraph 47.

(16)  Ernst & Young, paragraph 48.

(17)  Ernst & Young, paragraph 49.

(18)  Ernst & Young, paragraph 49.

(19)  Ernst & Young, paragraph 49.

(20)  Ernst & Young, paragraph 59.

(21)  Ernst & Young, paragraph 46.

(22)  See Case T‑279/04, Éditions Odile Jacob v Commission, paragraph 162. See also Case C-551/10, Editions Odile Jacob v. Commission, paragraphs 27 and 33. See also Commission’s 2004 clearance decision in this case, namely, Case M.2978 — Lagardère/Natexis/VUP.