Mowi ASA v European Commission.
Date: 2020-03-04
44


Although, as the appellant acknowledges by its arguments, recital 20 of Regulation No 139/2004 may serve as a basis for interpreting the provisions of that regulation, it cannot reasonably infer from the wording of that recital alone an interpretation of the concept of ‘single concentration’ which is not consistent with those provisions. To that effect, the Court has moreover had occasion to state, on several occasions, that the preamble to an EU act has no binding legal force and cannot be validly relied on either as a ground for derogating from the actual provisions of the act in question or for interpreting those provisions in a manner clearly contrary to their wording (see, to that effect, judgments of 10 January 2006, IATA and ELFAA, C‑344/04, EU:C:2006:10, paragraph 76, and of 2 April 2009, Tyson Parketthandel, C‑134/08, EU:C:2009:229, paragraph 16).
47


Article 7(1) of that regulation, which prohibits the implementation of a concentration, limits that prohibition only to concentrations as defined in Article 3 of that regulation (judgment of 31 May 2018, Ernst & Young, C‑633/16, EU:C:2018:371, paragraph 43).
48


Since Article 7(2) of that regulation constitutes an exception to that prohibition, account must be taken, in order to define the scope of that provision, of the definition of the concept of concentration set out in Article 3 (see, to that effect, judgment of 31 May 2018, Ernst & Young, C‑633/16, EU:C:2018:371, paragraph 44).
49


Under Article 3 of Regulation No 139/2004, a concentration is deemed to arise where a change of control on a lasting basis results from the merger of two or more previously independent undertakings or parts of undertakings, or the acquisition, by one or more persons already controlling at least one undertaking, or by one or more undertakings of direct or indirect control of the whole or parts of one or more other undertakings, that control being constituted by the possibility, conferred by rights, contracts or any other means, of exercising decisive influence on an undertaking (judgment of 31 May 2018, Ernst & Young, C‑633/16, EU:C:2018:371, paragraph 45).
50


It follows that a concentration arises as soon as the merging parties implement operations contributing to a lasting change in the control of the target undertaking (judgment of 31 May 2018, Ernst & Young, C‑633/16, EU:C:2018:371, paragraph 46).
51


Although recital 20 of Regulation No 139/2004 admittedly states that it is 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, only transactions which are necessary to achieve a change of control are capable of falling within the scope of Article 7 of Regulation No 139/2004 (see, to that effect, judgment of 31 May 2018, Ernst & Young, C‑633/16, EU:C:2018:371, paragraphs 48 et 49).
76


As regards, in the first place, the principle ne bis in idem, the Court has held that that principle must be observed in proceedings for the imposition of fines under competition law. That principle precludes an undertaking being found liable or proceedings being brought against it afresh on the grounds of anticompetitive conduct for which it has been penalised or declared not liable by an earlier decision that can no longer be challenged. That principle thus aims to prevent an undertaking from ‘being found liable or proceedings being brought against it afresh’, which assumes that that undertaking was found liable or declared not liable by an earlier decision that can no longer be challenged (see, to that effect, judgment of 3 April 2019, Powszechny Zakład Ubezpieczeń na Życie, C‑617/17, EU:C:2019:283, paragraphs 28 and 29 and the case-law cited).
77


That interpretation of the principle ne bis in idem is supported by the wording of Article 50 of the Charter of Fundamental Rights of the European Union and the rationale of that principle, that article thus specifically targeting the repetition of proceedings concerning the same material act which have been concluded by a final decision (see, to that effect, judgment of 3 April 2019, Powszechny Zakład Ubezpieczeń na Życie, C‑617/17, EU:C:2019:283, paragraphs 30 and 32).
80


The protection which the principle ne bis in idem aims to afford against the repetition of prosecution leading to a criminal sentence bears no relation to the situation in which Article 14(2)(a) and (b) of Regulation No 139/2004 are applied in a single decision for the purposes of penalising an infringement of Article 4(1) and Article 7(1) of that regulation (see, by analogy, judgment of 3 April 2019, Powszechny Zakład Ubezpieczeń na Życie, C‑617/17, EU:C:2019:283, paragraph 34).
108


Such an interpretation runs counter to the objective of Regulation No 139/2004, which, as is apparent from recital 34 of that regulation, is to ensure effective control of concentrations with a Community dimension by obliging undertakings to give prior notification of concentrations and by providing for the implementation of such concentrations to be suspended until a final decision has been taken (see, to that effect, judgment of 31 May 2018, Ernst & Young, C‑633/16, EU:C:2018:371, paragraph 42).
126


According to the Court’s case‑law, to allow a party to put forward for the first time before the Court of Justice a plea in law which it has not raised before the General Court would be to authorise it to bring before the Court of Justice, the appellate jurisdiction of which is limited, a case of wider ambit than that which came before the General Court. In an appeal, the jurisdiction of the Court of Justice is thus confined to a review of the findings of law on the pleas argued before the General Court (judgments of 19 April 2012, Tomra Systems and Others v Commission, C‑549/10 P, EU:C:2012:221, paragraph 99, and of 3 July 2014, Electrabel v Commission, C‑84/13 P, not published, EU:C:2014:2040, paragraph 35 and the case-law cited).