Court of Justice of the European Communities (including Court of First Instance Decisions)

OPINION OF ADVOCATE GENERAL

TANCHEV

delivered on 26 September 2019(1)

Case C‑10/18 P

Marine Harvest ASA, whose legal successor is Mowi ASA

v

European Commission

(Appeal — Control of concentrations between undertakings — Notion of single concentration — Implementation of a concentration before it is notified and declared compatible with the internal market — Fines imposed for the infringement of Article 4(1) and Article 7(1) of Council Regulation (EC) No 139/2004 — Principle ne bis in idem — Set-off principle — Principles governing concurrent offences)

Table of contents

I. Legal framework

II. Background to the proceedings

A. The takeover of Morpol

B. The Clearance Decision and the procedure leading to its adoption

C. The decision at issue and the proceedings leading to its adoption

III. Proceedings before the General Court and the judgment under appeal

IV. Proceedings before the Court of Justice and forms of order sought

V. Assessment of the grounds of appeal

A. The first ground of appeal, alleging that the General Court erred by failing to apply Article 7(2) of Regulation No 139/2004

1. Arguments of the parties

2. Assessment

(a) The first part of the first ground of appeal, alleging that the General Court erred in finding that the December 2012 Acquisition and the Public Offer do not constitute a single concentration

(b) The second part of the first ground of appeal, alleging that the General Court erred in interpreting strictly the rationale of Article 7(2) of Regulation No 139/2004

B. The second ground of appeal, alleging that the General Court erred in failing to apply the principle ne bis in idem, the set-off principle, or the principles governing concurrent offences

1. Arguments of the parties

2. Assessment

(a) Admissibility

(b) Substance

(1) The first part of the second ground of appeal

(i) The plea alleging infringement of the principle ne bis in idem

(ii) The plea alleging infringement of the set-off principle

(2) The second part of the second ground of appeal

(i) Introduction

(ii) Principles governing concurrent offences in the legal orders of Member States

(iii) Whether inspiration may be drawn from the principles of the legal orders of Member States with respect to the infringement, by the same conduct, of Article 4(1) and Article 7(1) of Regulation No 139/2004

(iv) The infringement of Article 7(1) of Regulation No 139/2004 subsumes the infringement of Article 4(1) of that regulation

(v) The General Court erred in upholding the Commission’s finding that Marine Harvest infringed Article 4(1) and Article 7(1) of Regulation No 139/2004.

VI. Conclusion

1.        By this appeal, Marine Harvest ASA (‘Marine Harvest’), whose legal successor is Mowi ASA, requests the Court to set aside the judgment of the General Court (2) by which the latter dismissed the action for the annulment of Commission Decision of 23 July 2014 imposing fines on Marine Harvest for putting into effect a concentration in breach of the notification and standstill obligations (‘the decision at issue’). (3)

2.        The decision at issue was adopted following Commission Decision of 30 September 2013, whereby the acquisition by Marine Harvest of Morpol ASA (‘Morpol’) was declared compatible with the internal market, subject to compliance with commitments (‘the Clearance Decision’). (4) That acquisition was carried out in two steps: first, Marine Harvest entered into a share purchase agreement with the main shareholder of Morpol, whereby it acquired a 48.5% stake in the capital of Morpol; second, Marine Harvest submitted a public bid for the remaining shares of Morpol, which allowed it to increase its shareholding in Morpol from 48.5% to 87.1%.

3.        However, the first step, namely the acquisition of a 48.5% stake in Morpol, was closed before it was notified to the European Commission. In the Commission’s view, the acquisition of that stake was sufficient to confer control over Morpol, and, therefore, it constituted a concentration for the purposes of Council Regulation (EC) No 139/2004. (5) The Commission therefore found in the decision at issue that, in closing the acquisition of the 48.5% stake in Morpol before it was notified and before it was declared compatible with the internal market, Marine Harvest had infringed, first, the notification obligation provided for by Article 4(1) of Regulation No 139/2004, and, second, the standstill obligation under Article 7(1) of that regulation. Consequently, the Commission imposed two fines of EUR 10 million each for the infringement of those provisions.

4.        The appeal brought before this Court raises two questions. First, the Court is asked to decide whether the acquisition of the 48.5% stake in Morpol alone constitutes a concentration, or whether that acquisition and the subsequent public bid must be regarded as a single concentration. Second, should the Court consider that the concentration arises from the sole acquisition of the 48.5% stake, it will have to decide whether two fines could be imposed on the closing of that acquisition, or whether, in imposing separate fines, the Commission breached, in particular, the principle ne bis in idem.

I.      Legal framework

5.        Recital 20 of Regulation No 139/2004 states:

‘It is expedient to define the concept of concentration in such a manner as to cover operations bringing about a lasting change in the control of the undertakings concerned and therefore in the structure of the market. It is therefore appropriate to include, within the scope of this Regulation, all joint ventures performing on a lasting basis all the functions of an autonomous economic entity. 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.’

6.        Article 4 of Regulation No 139/2004, entitled ‘Prior notification of concentrations and pre-notification referral at the request of the notifying parties’, provides:

‘1. Concentrations with a [European 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.

…’

7.        According to Article 7 of Regulation No 139/2004, entitled ‘Suspension of concentrations’:

‘1. A concentration with [an EU] dimension as defined in Article 1, or which is to be examined by the Commission pursuant to Article 4(5), 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).

2. 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.

…’

8.        Article 14 of Regulation No 139/2004, entitled ‘Fines’, states in paragraph 2:

‘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;

…’

II.    Background to the proceedings

A.      The takeover of Morpol

9.        On 14 December 2012, Marine Harvest entered into a share purchase agreement (‘the SPA’) with Friendmall Ltd (‘Friendmall’) and Bazmonta Holding Ltd (‘Bazmonta’). Bazmonta is a fully owned subsidiary of Friendmall, which is in turn controlled by Mr M. Under the SPA, Marine Harvest acquired a 48.5% shareholding of Morpol. The closing of this acquisition (‘the December 2012 Acquisition’) took place on 18 December 2012.

10.      Under Norwegian law, an acquirer of more than one third of the shares in a listed company (6) is obliged to make a bid for the remaining shares in the company. Therefore, on 17 December 2012, Marine Harvest made a stock exchange announcement of its intention to submit a public offer for the remaining shares in Morpol, representing 51.5% of that company’s capital. On 15 January 2013, Marine Harvest submitted the mandatory public offer for those shares (‘the Public Offer’). Following the settlement and the completion of the Public Offer on 12 March 2013, Marine Harvest acquired 87.1% of the shares in Morpol. Thus, through the Public Offer, Marine Harvest acquired shares representing approximately 38.6% of Morpol, in addition to the shares representing 48.5% of Morpol which it had already acquired by means of the December 2012 Acquisition.

11.      The acquisition of the remaining shares in Morpol was completed on 12 November 2013. On 15 November 2013, at an extraordinary general meeting, resolved to apply for the shares to be delisted, to reduce the number of board members and to decide that the company would no longer have a nomination committee. On 28 November 2013, Morpol was delisted from the Oslo Stock Exchange.

B.      The Clearance Decision and the procedure leading to its adoption

12.      On 21 December 2012, Marine Harvest sent a request to the Commission for the allocation of a case-team in respect of the acquisition of sole control over Morpol. In that request, Marine Harvest 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.

13.      Following several requests for information by the Commission and the submission of a first draft notification form (7) on 5 March 2013, the operation was formally notified on 9 August 2013.

14.      On 30 September 2013, by the Clearance Decision, the Commission approved the concentration subject to full compliance with the proposed commitments. As mentioned in point 3 above, in that decision, the Commission found that the December 2012 Acquisition had already conferred upon Marine Harvest de facto sole control over Morpol. Therefore, the Commission indicated that it could not exclude that the implementation of the December 2012 Acquisition, by way of its closing on 18 December 2012, before it was notified and declared compatible, infringed the notification obligation provided for by Article 4(1) of Regulation No 139/2004 and the standstill obligation under Article 7(1) of that regulation. The Commission stated that it might examine in a separate procedure whether a sanction under Article 14(2) of Regulation No 139/2004 was appropriate. (8)

C.      The decision at issue and the proceedings leading to its adoption

15.      By letter of 30 January 2014, the Commission informed Marine Harvest of an ongoing investigation concerning possible infringements of Article 4(1) and Article 7(1) of Regulation No 139/2004.

16.      On 31 March 2014, the Commission issued a statement of objections to Marine Harvest, to which the latter responded on 30 April 2014.

17.      On 23 July 2014, the Commission adopted the contested decision, whereby it found that Marine Harvest had infringed the notification obligation provided for by Article 4(1) of Regulation No 139/2004 and the standstill obligation under Article 7(1) thereof, and imposed two fines of EUR 10 million each for those infringements.

18.      In the decision at issue, the Commission found, first, that Marine Harvest had acquired de facto sole control over Morpol as a result of the December 2012 Acquisition. Consequently, that transaction constituted a concentration within the meaning of Article 3 of Regulation No 139/2004. Second, the Commission held that that concentration had been implemented by means of its closing on 18 December 2012, that is, before it was notified on 9 August 2013 and before it was declared compatible with the internal market by way of the Clearance Decision on 30 September 2013. (9) Third, the Commission found that the exemption from the standstill obligation under Article 7(2) of Regulation No 139/2004 did not apply. The Commission concluded that, in closing the December 2012 Acquisition, Marine Harvest had infringed Article 4(1) and Article 7(1) of Regulation No 139/2004, and that a fine of EUR 10 million should be imposed for each infringement. (10)

III. Proceedings before the General Court and the judgment under appeal

19.      On 3 October 2014, Marine Harvest lodged an application for annulment of the decision at issue or, in the alternative, of the fines imposed on it by that decision, or, in the further alternative, for a substantial reduction of those fines.

20.      By the judgment under appeal, the General Court rejected the five pleas in law raised before it and dismissed the action.

21.      In particular, (11) the General Court rejected the first plea in law, alleging that the Commission had erred in law and in fact in finding that Article 7(2) of Regulation No 139/2004 did not apply.

22.      First, the General Court stressed that the Commission was entitled to find that Marine Harvest had acquired control over Morpol by means of the December 2012 Acquisition, and that, consequently, Marine Harvest had been required to notify that transaction and not to implement it until it was declared compatible with the internal market. It was therefore necessary to determine whether the exemption from the standstill obligation provided for by Article 7(2) of Regulation No 139/2004 applied.

23.      Second, the General Court held that the situation in the present case differed from the two situations covered by that exemption, namely public bids and series of transactions in securities. The exemption of public bids did not apply, given that the infringement of Article 7(1) of Regulation No 139/2004 arose from the implementation not of the Public Offer, but of the December 2012 Acquisition. The exemption of series of transactions in securities also did not apply, since it covered only transaction structures whereby control is acquired by means of a series of transaction from various sellers, whereas control of Morpol was acquired by means of one transaction, namely the December 2012 Acquisition, and from one seller, namely Mr M.

24.      Third, the General Court dismissed Marine Harvest’s argument that the December 2012 Acquisition and the Public Offer were to be treated as a single concentration, with the result that it fell within the scope of the exemption of public bids from the standstill obligation provided for by Article 7(2) of Regulation No 139/2004. Of the two scenarios in which, according to recital 20 of that regulation, several transactions can be treated as a single concentration, namely transactions linked by condition and series of transactions in securities, Marine Harvest relied only on the former. In the first place, it followed from paragraph 44 of the Commission Consolidated Jurisdictional Notice under Regulation No 139/2004 (‘the Consolidated Jurisdictional Notice’) (12) that, for two transactions to be treated as a single concentration, it did not suffice that they were linked by condition. Control must also be acquired by means of several transactions. Since Marine Harvest acquired control of Morpol by means of a single transaction, that transaction and the Public Offer did not amount to a single concentration. In the second place, Marine Harvest’s argument that the rationale of Article 7(2) of Regulation No 139/2004 was to cover ‘creeping takeovers’ was to no effect, since the takeover of Morpol was not ‘creeping’ and, in any event, ‘creeping takeovers’ concerned the second scenario envisaged by recital 20 of that regulation, on which Marine Harvest did not rely. Finally, the fact that the purpose of Article 7(2) of Regulation No 139/2004 was to facilitate takeovers and ensure the liquidity of stock markets did not mean that it was necessary to extend the scope of that provision beyond its wording in order to facilitate takeovers.

25.      Besides, the General Court dismissed the third plea in law, alleging a breach of the principle ne bis in idem or of the set-off principle, and a breach of the principles governing concurrent offences.

26.      The General Court noted, as a preliminary remark, that an infringement of Article 4(1) of Regulation No 139/2004 automatically results in an infringement of Article 7(1) of that regulation, but the converse is not true. Indeed, where an undertaking implements a concentration before it is notified and before it is declared compatible, it infringes both provisions. However, where an undertaking implements a concentration after it is notified but before it is declared compatible, it infringes only Article 7(1) of Regulation No 139/2004. This, according to the General Court, made the applicable legal framework ‘unusual’.

27.      First, the General Court found that the principle ne bis in idem did not apply. According to case-law, for that principle to apply, the undertaking in question must have been penalised or declared not liable by an earlier decision that can no longer be challenged. Therefore, the principle ne bis in idem does not apply to a situation in which, as was the case here, an authority imposes two penalties in a single decision. As for the so-called set-off principle, which according to case-law requires the Commission, in fixing the amount of a fine, to take account of penalties already imposed by the competition authority of a Member State for the same conduct, the General Court held that that principle also did not apply since, like the principle ne bis in idem, it applies only where there has been an earlier decision.

28.      Second, the General Court dismissed Marine Harvest’s argument that, by analogy with the principle of ‘apparent’ or ‘false concurrence’ under international and German law, it should be considered that, in the case of concurrent offences, the greater offence subsumes the lesser, so that only one penalty need be imposed. The General Court found that, contrary to Marine Harvest’s submission, the infringement of Article 4(1) of Regulation No 139/2004 was not a more specific offence than the infringement of Article 7(1) of that regulation, and therefore that the former offence did not subsume the latter. This was because the infringement of Article 4(1) of Regulation No 139/2004 was an instantaneous infringement, whereas the infringement of Article 7(1) of that regulation was a continuous infringement. Therefore, the former offence was subject to a limitation period of 3 years, whereas the latter offence was subject to a limitation period of 5 years. Consequently, were Article 4(1) of Regulation No 139/2004 to apply alone where an undertaking implemented a concentration before it was notified and declared compatible, that undertaking would be in a more favourable position than an undertaking which implemented a concentration after it was notified but before it was declared compatible. It followed that neither of the provisions at issue was primarily applicable, with the result that there was no infringement of the principle of ‘apparent’ or ‘false concurrence’.

IV.    Proceedings before the Court of Justice and forms of order sought

29.      By its appeal, Marine Harvest requests the Court to:

–        set aside the judgment under appeal, in whole or in part;

–        annul the decision at issue or, in the alternative, annul the fines imposed on Marine Harvest or, in the further alternative, substantially reduce those fines;

–        order the Commission to pay the legal and other costs of Marine Harvest of the appeal and of the proceedings before the General Court;

–        if necessary, refer the case back to the General Court; and

–        take any other measure that the Court considers appropriate.

30.      The Commission claims that the Court should:

–        dismiss the appeal; and

–        order Marine Harvest to bear the costs.

31.      At the hearing on 22 May 2019, Marine Harvest and the Commission presented oral argument.

V.      Assessment of the grounds of appeal

32.      Marine Harvest relies on two grounds of appeal. First, it contends that the General Court erred in finding that Article 7(2) of Regulation No 139/2004 did not apply. Second, it submits that the General Court erred in failing to apply the principle ne bis in idem, the set-off principle, or the principles governing concurrent offences.

A.      The first ground of appeal, alleging that the General Court erred by failing to apply Article 7(2) of Regulation No 139/2004

1.      Arguments of the parties

33.      By its first ground of appeal, Marine Harvest submits that the General Court erred, in paragraphs 46 to 233 of the judgment under appeal, by failing to apply Article 7(2) of Regulation No 139/2004.

34.      The first ground of appeal is divided into two parts.

35.      In the first part of its first ground of appeal, Marine Harvest contends that the General Court erred in finding that the December 2012 Acquisition and the Public Offer do not constitute a single concentration. Marine Harvest argues that it follows from recital 20 of Regulation No 139/2004 that transactions that are ‘linked by condition’ are to be treated as a single concentration, irrespective of whether control of the target is acquired through the first or the last transaction. In the present case, the December 2012 Acquisition and the Public Offer are linked de jure and de facto, and they must, consequently, be treated as a single concentration.

36.      In the second part of its first ground of appeal, Marine Harvest submits that the General Court erred in interpreting strictly the rationale of Article 7(2) of Regulation No 139/2004. Marine Harvest argues that the rationale of that provision, which is to facilitate public bids and creeping takeovers, requires that the exemption from the standstill obligation applies to a transaction structure that comprises a public bid, even if, as is the case here, control was acquired before the public bid was launched. The grant of a derogation pursuant to Article 7(3) of Regulation No 139/2004 is not a satisfactory alternative to the application of Article 7(2) of that regulation. Moreover, the application of the latter provision to the single transaction described above ensures that the Commission assesses all the effects of the operation, not only those of the December 2012 Acquisition.

37.      Marine Harvest concludes that Article 7(2) of Regulation No 139/2004 is applicable to the present case. Since the two conditions to which the exemption from the standstill obligation is subject are met, that exemption applies.

38.      The Commission contends that the first ground of appeal is unfounded.

39.      As regards the first part of the first ground of appeal, the Commission takes the view that the December 2012 Acquisition and the Public Offer are not to be considered a single concentration. In the Commission’s view, for two transactions to constitute a single concentration, it is not sufficient that, as recital 20 of Regulation No 139/2004 states, they are linked by condition. Control within the meaning of Article 3 of that regulation must also be acquired by means of the second transaction. Where, as is the case here, control is acquired by means of the first transaction, the second transaction is no longer relevant for the purpose of determining whether control is acquired and whether, consequently, the implementation of the concentration must be suspended. For the sake of completeness, the Commission further submits that the December 2012 Acquisition and the Public Offer are not linked either de jure or de facto.

40.      As regards the second part of the first ground of appeal, the Commission contends that the General Court interpreted correctly both the wording and the rationale of Article 7(2) of Regulation No 139/2004. The Commission argues that, of the two situations envisaged by that provision, namely, public bids and series of transactions in securities, only the first is relied on by Marine Harvest. However, that first situation does not apply to the present case as control was acquired before the Public Offer was launched, not by means of the Public Offer. It follows that Marine Harvest cannot benefit from the exemption from the standstill obligation under Article 7(2) of Regulation No 139/2004. Consequently, it is irrelevant that Marine Harvest complied with the requirement under that provision that voting rights are not exercised.

2.      Assessment

41.      By its first ground of appeal, Marine Harvest submits that the General Court erred in finding that Article 7(2) of Regulation No 139/2004 did not apply since, first, the December 2012 Acquisition and the Public Offer constitute a single concentration, and, second, the objective of that provision, which is to facilitate public bids and creeping takeovers, requires that it is interpreted as applying to a transaction structure that does not consist solely of, but includes a public bid. In Marine Harvest’s view, the two conditions laid down in Article 7(2) of Regulation No 139/2004 are met as it notified the concentration ‘without delay’ and it did not exercise its voting rights in Morpol, with the result that the exemption from the standstill obligation applies.

(a)    The first part of the first ground of appeal, alleging that the General Court erred in finding that the December 2012 Acquisition and the Public Offer do not constitute a single concentration

42.      In the first part of its first ground of appeal, Marine Harvest contends that the December 2012 Acquisition and the Public Offer constitute a single concentration.

43.      I take the view that the first part of the first ground of appeal is unfounded.

44.      A ‘concentration’ for the purposes of Regulation No 139/2004 is, according to Article 3(1) of that regulation, ‘a change of control on a lasting basis’. ‘Control’ is defined by Article 3(2) of the same regulation as ‘the possibility of exercising decisive influence on an undertaking’. According to case-law, control of an undertaking may be acquired by means of one, two or more transactions. (13)

45.      In the present case, Marine Harvest acquired Morpol by means of the following transactions: first, the December 2012 Acquisition, whereby Marine Harvest acquired a 48.5% stake in Morpol; and, second, the Public Offer, whereby Marine Harvest increased its shareholding in Morpol from 48.5% to 87.1%. (14)

46.      However, control of Morpol was acquired by means of the December 2012 Acquisition alone. (15) I should emphasise that this is not disputed by Marine Harvest. Indeed, in support of its submission that the December 2012 Acquisition and the Public Offer constitute a single transaction, Marine Harvest does not argue that control of Morpol was acquired by means of the second transaction, namely the Public Offer. The reason why, in Marine Harvest’s view, the December 2012 Acquisition and the Public Offer constitute a single concentration is that they are linked by condition.

47.      Therefore, the question in the present case is whether, where an undertaking acquires another undertaking by means of more than one transaction, but control is transferred by means of the first transaction alone, all transactions must be regarded as a single concentration, or whether the first transaction alone constitutes a concentration within the meaning of Article 3 of Regulation No 139/2004.

48.      I should note that, while no article of Regulation No 139/2004 specifies the conditions under which several transactions in respect of the same target must be regarded as a single concentration, recital 20 of that regulation provides some guidance in that regard. The last sentence of that recital 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’.

49.      Further guidance may be found in the Consolidated Jurisdictional Notice. With regard to the first situation envisaged by recital 20 of that regulation (namely, transactions linked by condition), (16) paragraph 43 of the Consolidated Jurisdictional Notice states that a single concentration arises where ‘none of the transactions would take place without the others’. The same paragraph of the Consolidated Jurisdictional Notice specifies that conditionality is usually demonstrated if the transactions are linked either de jure (when ‘the agreements themselves are linked by mutual conditionality’) or de facto (when an economic assessment shows that each of the transactions necessarily depends on the conclusion of the others).

50.      In my opinion, it cannot be considered that, where an undertaking acquires another by means of two transactions, but control is transferred by means of the first transaction alone, those two transactions must be regarded as a single concentration. I will set out below the reasons why I have come to that conclusion.

51.      As explained in point 44 above, for a concentration to arise, there must be a change in control. It follows that, where an undertaking acquires the entirety, or the majority, of the target’s capital by means of several transactions, but it acquires control over the target by means of the first transaction alone, that first transaction alone constitutes a concentration. Subsequent transactions, whereby the acquirer increases its stake in the target’s capital, should not be taken into account for the purpose of determining whether a concentration arises, given that control of the target has already been transferred.

52.      In my opinion, this is consistent with the judgment in Cementbouw Handel & Industrie v Commission. In that judgment, the General Court held that a concentration arises in the case of formally distinct legal transactions where, first, those transactions are interdependent, and, second, ‘the result consists in conferring … control’ on the target undertaking. (17) Conversely, where the acquisition of control is not the ‘result’ of several transactions, but it is the result of the first transaction, that transaction alone constitutes a concentration.

53.      This is also supported by Article 3(4) of the Commission’s proposal for what would become Regulation No 139/2004, (18) in which the last sentence of recital 20 of that regulation has its origin. The Commission proposed to insert a fourth paragraph in Article 3 of Council Regulation (EEC) No 4064/89, (19) which stated that ‘two or more transactions which are conditional on one another or are so closely connected that their economic rationale justifies their treatment as a single transaction shall be deemed to constitute one and the same concentration arising on the date of the last transaction, provided that the transactions taken as a whole satisfy the requirements of paragraph 1’. (20) The ‘requirements of paragraph 1’ are those that define a concentration as a change of control on a lasting basis. Therefore, in the Commission’s proposal, two or more transactions were deemed to constitute one and the same concentration if, taken as a whole, they achieved a transfer of control, in other words, if the transfer of control resulted not from the first transaction, but from all transactions.

54.      It is true that Article 3 of Regulation No 4064/89 was not amended as proposed by the Commission. However, account may nonetheless be taken of Article 3(4) of the Commission’s proposal for the interpretation of the last sentence of recital 20 of Regulation No 139/2004, because that sentence was introduced when it was decided not to adopt the Commission’s proposal for a new Article 3(4). (21)

55.      In any event, should the Court consider that, where control is transferred by the first of two transactions, those two transactions must be regarded as a single concentration, it would not follow that, in the present case, the December 2012 Acquisition and the Public Offer must be regarded as a single concentration.

56.      Indeed, as mentioned in point 49 above, for two transactions to be regarded as a single concentration, they must be linked by mutual conditionality, either de jure or de facto. However, that is not the case of the December 2012 Acquisition and the Public Offer.

57.      First, the December 2012 Acquisition and the Public Offer are not linked by mutual conditionality de jure. It is true that the Public Offer is a necessary and direct consequence of the December 2012 Acquisition. This is because, under Norwegian law, an acquirer of more than one third of the shares in a listed company is obliged to make a bid for the remaining shares in the company. As a result of the December 2012 Acquisition, Marine Harvest acquired a 48.5% stake in Morpol, and was therefore obliged to launch the Public Offer. However, the reverse is not true. Marine Harvest was in no way required to acquire a certain stake in Morpol’s capital before launching a public bid.

58.      I should emphasise, in that regard, that it is clear from paragraph 43 of the Consolidated Jurisdictional Notice that conditionality must be mutual, as that paragraph states that ‘the required conditionality implies that none of the transactions would take place without the others’. (22) I should also observe that that sentence is worded in very similar terms to paragraph 109 of the judgment in Cementbouw Handel & Industrie v Commission. (23)

59.      Second, the December 2012 Acquisition and the Public Offer are not linked by mutual conditionality de facto. As the Commission submits, Marine Harvest signed the SPA and entered into the December 2012 Acquisition although it did not know, at the time, whether the Public Offer would allow for the acquisition of all the outstanding shares in Morpol or whether it would be left with only a 48.5% stake. Moreover, Marine Harvest could have launched a public bid without first entering into the SPA.

60.      It follows that the December 2012 Acquisition and the Public Offer cannot be regarded as a single concentration, and that the first part of the first ground of appeal must be dismissed as unfounded.

61.      For the sake of completeness, I should also note that, should the Court consider that the December 2012 Acquisition and the Public Offer constitute a single concentration, it would not follow that the prohibition on implementation laid down in Article 7(1) of Regulation No 139/2004 applies only to the second transaction, namely the Public Offer, with the result that the first transaction, namely the December 2012 Acquisition, may be implemented before it is notified and declared compatible. (24)

62.      Indeed, in Ernst & Young, the Court held that Article 7(1) of Regulation No 139/2004 prohibits the implementation of ‘any transaction which contributes to lasting change of control over’ the target undertaking. (25) Consequently, under the assumption of a single concentration, the December 2012 Acquisition would have to be regarded as contributing to the change of control and, therefore, as falling within the scope of the prohibition on implementation laid down in Article 7(1) of Regulation No 139/2004.

(b)    The second part of the first ground of appeal, alleging that the General Court erred in interpreting strictly the rationale of Article 7(2) of Regulation No 139/2004

63.      In the second part of its first ground of appeal, Marine Harvest submits that the General Court erred in interpreting strictly the rationale of Article 7(2) of Regulation No 139/2004. In Marine Harvest’s view, in the light of its rationale, which is to facilitate public bids and creeping takeovers, that provision must be interpreted as applying to a transaction structure that includes a public bid, even if, as is the case here, control of the target is acquired not by means of the public bid but by means of a previous transaction. Moreover, as required by subparagraphs (a) and (b) of that provision, Marine Harvest notified the concentration ‘without delay’ and it did not exercise its voting rights in Morpol. Consequently, according to Marine Harvest, the exemption from the standstill obligation under Article 7(2) of Regulation No 139/2004 applies to the December 2012 Acquisition.

64.      I consider that the second part of the first ground of appeal is unfounded.

65.      Indeed, Article 7(2) of Regulation No 139/2004 provides for an exemption from the standstill obligation under Article 7(1) of that regulation in two situations. The latter provision does not prevent the implementation of ‘a public bid’ (first situation) or of ‘a series of transactions in securities’ (second situation), provided that the following two conditions are met: first, the concentration must be notified to the Commission without delay; and, second, the acquirer must not exercise the voting rights attached to the securities in question, or does so only on the basis of a derogation granted by the Commission under Article 7(3) of Regulation No 139/2004.

66.      I should emphasise that, in the present case, the question whether the exemption from the standstill obligation under Article 7(2) of Regulation No 139/2004 applies should be answered in relation to the December 2012 Acquisition alone, not in relation to the operation consisting of the December 2012 Acquisition and the Public Offer. This is because, as I have shown above, the December 2012 Acquisition alone constitutes a concentration and, therefore, the implementation of that transaction alone (by way of its closing on 18 December 2012 before it was declared compatible with the internal market) infringes Article 7(1) of Regulation No 139/2004.

67.      It is clear that Article 7(2) of Regulation No 139/2004 does not apply to the December 2012 Acquisition as, first, that transaction is not a public bid, and, second, it is one transaction, not a ‘series’ of transactions in securities within the meaning of that provision. Therefore, it is irrelevant whether Marine Harvest complied with the two conditions set out under subparagraphs (a) and (b) of Article 7(2) of Regulation No 139/2004.

68.      Consequently, the General Court did not err in upholding, in paragraph 83 of the judgment under appeal, the Commission’s finding that Article 7(2) of Regulation No 139/2004 does not apply to the December 2012 Acquisition.

69.      In any event, should the Court consider that the December 2012 Acquisition and the Public Offer constitute a single concentration, and that, therefore, the question whether the exemption from the standstill obligation under Article 7(2) of Regulation No 139/2004 applies should be answered in relation to that single concentration, it would not follow that the December 2012 Acquisition falls within the scope of that exemption.

70.      At the outset, I should observe that, as an exemption from the standstill obligation provided for by Article 7(1) of Regulation No 139/2004, on which the EU legislature has placed fundamental importance, (26) Article 7(2) of that regulation should be interpreted strictly.

71.      As regards the first situation envisaged by Article 7(2) of Regulation No 139/2004, namely the exemption of public bids, I note that the exemption from the standstill obligation under Article 7(2) of Regulation No 139/2004 applies only to public bids or series of transactions in securities ‘by which control … is acquired’. In my opinion, it follows that, where a transaction structure includes a public bid, but control of the target is not acquired by means of that public bid, the latter falls outside the scope of the exemption from the standstill obligation. I should emphasise, in that regard, that the Public Offer neither achieves nor contributes to the change of control, given that it was launched after control of the target had been acquired. It follows that, even under the assumption of a single concentration, the December 2012 Acquisition falls outside the scope of the first situation envisaged by Article 7(2) of Regulation No 139/2004.

72.      As regards the second situation envisaged by Article 7(2) of Regulation No 139/2004, namely the series of transactions in securities, (27) I fail to see how the operation consisting of the December 2012 Acquisition and the Public Offer may be regarded as ‘a series of transactions in securities …, by which control … is acquired from various sellers’. Indeed, in the present case, control of the target was acquired by means of one transaction, namely the December 2012 Acquisition, not by means of ‘a series’ of transactions (irrespective of whether two transactions may be regarded as ‘a series’ of transactions). Control was acquired from one seller, namely Mr M., not from ‘various sellers’.

73.      Furthermore, in so far as, by extending the scope of the exemption from the standstill obligation to a ‘series of transactions in securities’, (28) the EU legislature intended, as Marine Harvest argues, to facilitate creeping takeovers, (29) I should point out that the operation consisting of the December 2012 Acquisition and the Public Offer in no way amounts to a creeping takeover. Again, control over Morpol was acquired by means of one transaction, with the result that, as the General Court was entitled to find in paragraph 175 of the judgment under appeal, the takeover was not ‘creeping’.

74.      It follows that, should the December 2012 Acquisition and the Public Offer be regarded as a single concentration, the implementation of the former transaction would nonetheless fall outside the scope of the exemption from the standstill obligation under Article 7(2) of Regulation No 139/2004.

75.      I conclude that the second part of the first ground of appeal is unfounded, and that the first ground of appeal must be dismissed.

B.      The second ground of appeal, alleging that the General Court erred in failing to apply the principle ne bis in idem, the set-off principle, or the principles governing concurrent offences

1.      Arguments of the parties

76.      By its second ground of appeal, Marine Harvest contends that, in finding, in particular in paragraphs 306, 319, 339 to 344, and 362 of the judgment under appeal, that the Commission could impose separate fines on the appellant, one for breach of the notification obligation provided for by Article 4(1) of Regulation No 139/2004, the other for breach of the standstill obligation under Article 7(1) of that regulation, the General Court infringed the principle ne bis in idem, the set-off principle, or the principles governing concurrent offences.

77.      The second ground of appeal is divided into two parts.

78.      In the first part of its second ground of appeal, Marine Harvest contends that the General Court erred in finding that the principle ne bis in idem did not apply. In Marine Harvest’s view, that principle applies even where, as is the case here, two penalties are imposed in a single decision. In the alternative, Marine Harvest submits that the General Court erred in finding that the general principle of set-off did not apply. According to Marine Harvest, that principle, which applies where the principle ne bis in idem does not fully apply, requires that, when setting a penalty, account be taken of a previous penalty.

79.      In the second part of its second ground of appeal, Marine Harvest submits that the General Court erred in dismissing, in paragraph 362 of the judgment under appeal, the plea alleging infringement of the principles governing concurrent offences. According to those principles, where the same conduct is caught by two statutory provisions, and one provision provides for a more specific offence than the other, that conduct infringes only the former provision, not the latter. In Marine Harvest’s view, the infringement of Article 4(1) of Regulation No 139/2004 is a more specific offence than the infringement of Article 7(1) of that regulation. It follows that Marine Harvest infringed only the former provision, and that, therefore, only one fine could have been imposed on it.

80.      The Commission submits that the second ground of appeal must be dismissed.

81.      In the Commission’s view, the first part of the second ground of appeal is inadmissible in part and unfounded in whole. The Commission contends that Marine Harvest’s plea alleging infringement of the principle ne bis in idem is unfounded, in particular as that principle does not apply where two fines are imposed in a single decision. The Commission further contends that Marine Harvest’s plea alleging infringement of the set-off principle is inadmissible and, in any event, unfounded. It is inadmissible because the appeal does not indicate the legal arguments relied upon or identify a specific failure by the General Court. It is unfounded because, in the decision at issue, the Commission set the fines at a level proportionate to the nature, gravity and duration of the infringements, as required by Article 14(3) of Regulation No 139/2004.

82.      According to the Commission, the second part of the second ground of appeal is unfounded. In the Commission’s view, first, the principles governing concurrent offences do not, in general terms, preclude a finding that the same conduct infringes two separate statutory provisions. Second, the infringement of Article 4(1) of Regulation No 139/2004 is not a more specific offence than the infringement of Article 7(1) of that regulation.

83.      Marine Harvest replies that its plea alleging infringement of the set-off principle is admissible, as the appeal identifies the paragraphs of the judgment under appeal which are contested, and it provides arguments in support of that plea.

2.      Assessment

84.      By its second ground of appeal, Marine Harvest contends that, in finding that separate fines could be imposed, one for breach of the notification obligation provided for by Article 4(1) of Regulation No 139/2004, the other for breach of the standstill obligation under Article 7(1) of that regulation, the General Court infringed the principle ne bis in idem, the set-off principle, or the principles governing concurrent offences.

(a)    Admissibility

85.      The Commission contends that the plea alleging infringement of the set-off principle is inadmissible because it is not supported by legal arguments and it does not identify any specific error by the General Court. (30)

86.      In my opinion, that plea of inadmissibility cannot succeed.

87.      First, the appeal satisfies the requirement under Article 168(1)(d) of the Rules of Procedure of the Court that it contain the legal arguments relied on. Indeed, the appeal explains that the set-off principle is a general principle of EU law (reference is made to the ‘Anrechnungsprinzip’ of German law and the Opinions of two Advocates General); (31) what that principles requires (that the first penalty is taken into account when determining the second penalty); and why that principle applies to the present case (it applies where the principle ne bis in idem does not). (32)

88.      Second, as required by Article 169(2) of the Rules of Procedure of the Court, the appeal clearly indicates that it challenges paragraphs 339 to 344 of the judgment under appeal.

(b)    Substance

(1)    The first part of the second ground of appeal

89.      In the first part of its second ground of appeal, Marine Harvest alleges infringement of the principle ne bis in idem or, in the alternative, of the set-off principle. I will examine each of these pleas in turn.

(i)    The plea alleging infringement of the principle ne bis in idem 

90.      Marine Harvest contends that the General Court infringed the principle ne bis in idem in finding that the same conduct, namely the implementation of the December 2012 Acquisition, may be penalised by the imposition of separate fines, one for breach of the obligation to notify a concentration prior to its implementation, provided for by Article 4(1) of Regulation No 139/2004, the other for breach of the obligation to suspend the implementation of a concentration until it has been declared compatible, provided for by Article 7(1) of that regulation.

91.      According to case-law, the principle ne bis in idem, which is now enshrined in Article 50 of the Charter of Fundamental Rights of the European Union (‘the Charter’), must be observed in proceedings for the imposition of fines under competition law. That principle thus 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. (33)

92.      It follows that the principle ne bis in idem — whose application to the imposition of fines for breach of the obligations imposed on undertakings by Regulation No 139/2004 follows from the case-law cited in the previous point — has two components: (i) the conduct must be the same (the idem component); and (ii) the earlier decision must be final (the bis component).

93.      I consider that the plea alleging infringement of the principle ne bis in idem must be dismissed. Although the conduct which the Commission regarded as a breach of Article 4(1) and Article 7(1) of Regulation No 139/2004 is the same, the requirement that there is an earlier decision is not met.

94.      As mentioned in the previous point, no difficulties arise from the idem component.

95.      According to case-law, in competition law cases, the application of the principle ne bis in idem is subject to the threefold condition that in the two cases the facts must be the same, the offender the same and the legal interest protected the same. (34)

96.      First, the infringement of Article 4(1) of Regulation No 139/2004 arose from the same facts as the infringement of Article 7(1) of that regulation.

97.      It could be argued that the infringement of the former provision arose from the failure to notify the SPA following its conclusion on 14 December 2012, whereas the infringement of the latter provision arose from the closing, 4 days later, of the December 2012 Acquisition.

98.      However, I should note that the failure to notify the SPA does not in itself amount to an infringement of Article 4(1) of Regulation No 139/2004, given that that provision requires the notification of concentrations ‘prior to their implementation’. There is no infringement of that provision where an undertaking merely refrains from notifying a concentration ‘following the conclusion of the agreement’. The infringement of Article 4(1) of Regulation No 139/2004 arises from the implementation of a concentration that has not been notified. By contrast, under Regulation No 4064/89, Article 4(1) required that concentrations be notified ‘not more than 1 week after the conclusion of the agreement’, with the result that the failure to notify a concentration (within 1 week) amounted in itself to an infringement of that provision.

99.      Therefore, the infringement of Article 4(1) of Regulation No 139/2004 arose from the closing of the December 2012 Acquisition, which implemented the concentration before it was notified. It follows that the infringement of Article 4(1) and Article 7(1) of Regulation No 139/2004 arose from the same facts (the closing of the December 2012 Acquisition), with the result that the first condition mentioned in point 95 above, namely the identity of facts, is met.

100. Second, the offender is, in both cases, Marine Harvest. Given that the latter acquired sole control of Morpol, compliance with the obligation to notify the concentration prior to its implementation provided for by Article 4(1) of Regulation No 139/2004 (35) and the standstill obligation laid down in Article 7(1) of that regulation were both required of Marine Harvest.

101. Third, the legal interest protected by both obligations is the same, that is to prevent the implementation of concentrations before they are notified and cleared by the Commission, and thereby avoid any damage to competition that may result from such early implementation, in accordance with recitals 5 and 6 of Regulation No 139/2004. (36)

102. Consequently, the three conditions mentioned in point 95 above are met.

103. However, as mentioned in point 93 above, difficulties arise from the bis component, with the result that the principle ne bis in idem does not apply to the present case.

104. Indeed, for the principle ne bis in idem to apply, there must be an earlier decision, whereby a fine is imposed on the same person in respect of the same conduct. This follows from the case-law cited in point 91 above, which makes the prohibition on double penalties subject to the existence of ‘an earlier decision that can no longer be challenged’. This also follows from the wording of Article 50 of the Charter, which requires that the person ‘has already been finally acquitted or convicted’.

105. Conversely, where, as is the case here, there is no earlier decision, and two fines are imposed in a single decision, the principle ne bis in idem does not apply.

106. This was confirmed in a recent judgment, whereby the Court held that the principle ne bis in idem does not apply to a situation in which a national competition authority imposed two fines in a single decision, one for the infringement of EU competition rules, the other for the infringement of national competition rules. (37) Whilst, in the present case, the two fines were imposed for the infringement of two provisions of EU law, namely, Article 4(1) and Article 7(1) of Regulation No 139/2004, in the light of my remarks in point 104 above, I see no reason why the solution in that judgment should not apply to the present case.

107. Moreover, this is consistent with the judgment in LG Display and LG Display Taiwan v Commission. The Commission had adopted a decision whereby it found that producers of liquid crystal display panels had infringed Article 101 TFEU (‘the first decision’). However, the Japanese suppliers of those panels had been excluded from the scope of the first decision, and the Commission had opened another procedure against those Japanese suppliers, which was still on-going (‘the second procedure’). The General Court held that the principle ne bis in idem could not be relied on in support of the action seeking annulment of the first decision. (38) That principle could only be relied on in support of an action for the annulment of the decision that would close the second procedure. According to the General Court, ‘the ne bis in idem principle cannot play any role in relation to the [first] decision, the existence of which is a condition sine qua non if that principle is to be relied on with regard to the second procedure’. (39)

108. This is also consistent with the judgment in Limburgse Vinyl Maatschappij and Others v Commission, in which the Court, relying on procedural considerations, annulled a decision whereby the Commission imposed a fine for the infringement of Article 101 TFEU. The Court held that the principle ne bis in idem does not preclude the resumption of proceedings by the Commission and the imposition of a new fine. Indeed, in that situation, the fine imposed in the new decision is not added to, but replaces the fine imposed in the first decision. The earlier fine, so to speak, no longer exists. (40)

109. My conclusion in point 105 above is not called into question by the three judgments on which Marine Harvest relies, namely the judgments in Beneo-Orafti, in Coop de France Bétail et Viande and Others v Commission, and in Transcatab v Commission. (41)

110. In those judgments, multiple penalties were imposed in a single decision. In finding that there was no infringement of the principle ne bis in idem, the EU Courts relied, in each of those respective cases, not on the fact that there was no earlier decision, but on the following grounds: one of the measures at issue did not constitute a penalty; (42) there was no unity of offenders; (43) and there was neither identity of the facts nor unity of offenders. (44)

111. Contrary to what Marine Harvest argues, the fact that the EU Courts did not rely on the absence of an earlier decision does not imply that they considered that the principle ne bis in idem applies where multiple penalties are imposed in a single decision. It simply means that there was no need for the EU Courts to consider that issue, given that the conditions that the facts must be the same, the offender the same, the legal interested protected the same and that there must be an earlier decision that can no longer be challenged are cumulative. Therefore, if, as was the case in all three judgments, one of the first three conditions is not met, there is no need to consider whether the condition that there must be an earlier decision is met.

112. I conclude that the General Court did not err in finding, in paragraph 319 of the judgment under appeal, that the principle ne bis in idem does not apply to the present case as the two fines were imposed in a single decision.

(ii) The plea alleging infringement of the set-off principle

113. Marine Harvest contends that, should the Court dismiss the plea alleging infringement of the principle ne bis in idem, it should nonetheless find a breach of the set-off principle, which requires the first penalty imposed to be taken into account when setting the second penalty.

114. In my opinion, that plea must be dismissed.

115. According to the case-law, the possibility of concurrent sanctions, one at EU, the other at national level, resulting from two parallel procedures pursuing different ends, the acceptability thereof deriving from the special system of sharing jurisdiction between the European Union and the Member States with regard to cartels, is subject to the principle of natural justice. This means that, when setting fines, the Commission must take account of penalties which have already been borne by the same undertaking for the same conduct, where they have been imposed for infringements of the cartel law of a Member State and, consequently, have been committed in the European Union. (45)

116. As is apparent from the case-law cited in the preceding point, this principle, which is known as the set-off or accounting principle, applies to situations in which parallel proceedings are conducted by the Commission (under EU competition rules) and the competition authority of a Member State (under national competition rules). As mentioned above, (46) in those situations, the principle ne bis in idem does not apply. The requirement that account be taken of the first fine when setting the second alleviates the consequences of the non-application of the principle ne bis in idem.

117. However, the set-off principle does not apply where parallel proceedings are conducted by the Commission and the competition authority of a non-member State. In that situation, the Commission may, but is not required to, take into account the fines imposed a non-member State authority. (47) That is so even though, in that situation, the principle ne bis in idem does not apply as the legal interest protected is not the same. (48) Therefore, I disagree with Marine Harvest’s argument that the set-off principle, or accounting principle ‘applies to any situation in which the principle ne bis in idem is not fully applicable’.

118. I also disagree with Marine Harvest’s agreement that the set-off principle is ‘a general principle in EU law’. In that regard, I note that Advocate General Sharpston’s statement in her Opinion in Kraaijenbrink, on which Marine Harvest relies, that ‘there is a general principle of set-off in EU law whereby previous penalties must be taken into account if the offender is penalised under a second set of proceedings for the same act’, (49) was not endorsed by the Court. (50) Furthermore, had the Court followed Advocate General Sharpston’s proposal and recognised the set-off principle as a general principle, this would still not affect the present case. Indeed, in Advocate General Sharpston’s words, that principle would apply where there is ‘a second set of proceedings’, which, in this case, there is not.

119. Besides, it follows from the case-law cited in point 115 above that, for the set-off principle to apply, there must be parallel proceedings before, on the one hand, the Commission, and, on the other hand, the competition authority of a Member State. Where there are no parallel procedures because, as is the case here, only the Commission acts, there is no reason why that case-law would apply.

120. In that regard, I should emphasise that the present case is concerned with EU merger control, which is governed by the ‘one-stop shop’ principle that there can never be parallel proceedings before the Commission and the competition authority of a Member State. (51) Therefore, the set-off principle, which seeks to alleviate the consequences of the system of parallel jurisdiction for the enforcement of Articles 101 and 102 TFEU, cannot come into play. It follows that, where the same conduct is caught by two provisions that belong to the same legal system, (52) the question whether two penalties may be imposed should be assessed under the principles governing concurrent offences within that legal system, not under the set-off principle.

121. I conclude that the plea alleging infringement of the set-off principle must be dismissed.

122. For the sake of completeness, I should note that, in response to a question by the Court, Marine Harvest submitted, at the hearing, that the set-off principle gives expression to the principle of proportionality.

123. I agree with the Commission that the plea alleging infringement of the principle of proportionality is inadmissible.

124. While I accept that the set-off principle is ultimately an expression of the requirement that fines be proportionate, this does not detract from the fact that, in its appeal before the Court, Marine Harvest did not raise a plea alleging infringement of the principle of proportionality. It did not challenge paragraphs 579 to 631 of the judgment under appeal, whereby the General Court dismissed the plea alleging disproportionality of the fines. This is inconsistent with Article 168(1)(d) of the Rules of Procedure of the Court, which requires that the appeal contain the pleas in law.

125. I conclude that the first part of the second ground of appeal must be dismissed.

(2)    The second part of the second ground of appeal

(i)    Introduction

126. In the second part of its second ground of appeal, Marine Harvest contends that international law and the legal orders of Member States provide for principles that govern concurrent offences. In Marine Harvest’s view, those principles require that, where the same conduct is caught by more than one statutory provision, but one provision is more specific than the other, only the former must be applied. Marine Harvest submits that the infringement of Article 4(1) of Regulation No 139/2004 is a more specific offence than the infringement of Article 7(1) of that regulation, and that only the former provision must therefore be applied to its conduct. Marine Harvest claims that it follows that the General Court erred in upholding the Commission’s finding that an infringement of both Article 4(1) and Article 7(1) of Regulation No 139/2004 arose from Marine Harvest’s conduct and that separate fines could be imposed.

127. I consider that the second part of the second ground of appeal should be upheld. I will set out below the reasons why I have come to that conclusion.

128. At the outset, I should recall that, as I explained in points 98 and 99 above, the conduct which is caught by Article 4(1) and Article 7(1) of Regulation No 139/2004 is one and the same, namely the closing of the December 2012 Acquisition. Marine Harvest’s failure to notify the conclusion of the SPA does not amount to an infringement of Article 4(1) of that regulation since, for that provision to be infringed, it is not sufficient that a concentration is not notified following the conclusion of an agreement. That provision is infringed only if a concentration that has not been notified is implemented. Therefore, the infringement of Article 4(1) of Regulation No 139/2004 arises from the implementation of a concentration in the absence of prior notification. It is not disputed that the same conduct amounts to an infringement of Article 7(1) of the same regulation.

129. Consequently, the question is whether, where the same conduct (the closing of the December 2012 Acquisition) is caught by two provisions of EU law (Article 4(1) and Article 7(1) of Regulation No 139/2004), the Commission may find an infringement of those two provisions, or whether it must find an infringement of only one provision.

130. I should note that, as the General Court held in paragraph 348 of the judgment under appeal, there are, to my knowledge, no rules that govern concurrent offences in EU competition law.

131. However, the criminal legislation of Member States provides for principles governing concurrent offences. Consideration should thus be given to those principles in order to determine whether inspiration may be drawn from them for the purposes of answering the question posed in point 129 above.

132. Therefore, first, I will examine the principles that govern concurrent offences in the legal orders of some Member States. Second, I will examine whether inspiration may be drawn from those principles. In my view, where, as is the case here, the same conduct is caught by Article 4(1) and Article 7(1) of Regulation No 139/2004, and the infringement of one provision subsumes the infringement of the other, only the former should apply. Third, I will assess whether the infringement of one of those two provisions subsumes the infringement of the other. In my opinion, the infringement of Article 7(1) of Regulation No 139/2004 subsumes the infringement of Article 4(1) of that regulation. Fourth, I will draw conclusions from that finding and propose that the judgment under appeal be set aside and the decision at issue be annulled in part.

(ii) Principles governing concurrent offences in the legal orders of Member States

133. Marine Harvest relies on the German doctrine of ‘apparent’ or ‘false concurrence’ (in German: unechte Konkurrenz).

134. Under German law, the same conduct may be found to breach several statutory provisions (situation of ‘true concurrence’, in German: echte Konkurrenz). In that case, only one penalty is imposed. Pursuant to Paragraph 52(2) of the Strafgesetzbuch (German Criminal Code), that single penalty cannot exceed the highest of the maximum penalties for the infringement of the provisions at issue, and it cannot be below the highest of the minimum penalties for the infringement of those provisions. (53)

135. However, a conduct that is caught by several statutory provisions may also be found to breach only one provision. This is because the application of that provision precludes the applicability of the other (situation of ‘apparent’ or ‘false concurrence’, in German: unechte Konkurrenz). A situation of ‘apparent’ or ‘false concurrence’ arises where: (i) a statutory provision, while including all elements of another provision, contains an additional element (‘specialty’ principle, in German: Spezialität); (ii) a statutory provision either explicitly or materially excludes the application of another provision (‘subsidiarity’ principle, in German: Subsidiarität); or (iii) a statutory provision belongs to the so-called ‘typical course of events’ which leads to the breach of another provision, and the former is thus regularly breached along with the latter (‘consumption’ principle, in German: Konsumtion). In a situation of ‘apparent’ or ‘false concurrence’, only one penalty is applied, given that the conduct at issue infringed only one provision. (54)

136. Consideration may also be given, by way of example, to the principles that govern concurrent offences under French law, to which Marine Harvest has, among other legal systems, referred.

137. Under French law, where the same conduct is caught by more than one statutory provision, it is normally found to breach only one provision. (55) For instance, the same conduct cannot amount simultaneously to the offences of rape and battery. Only the prohibition of rape will be applied, to the exclusion of that of battery. (56) That is the case where all applicable provisions protect the same social value. The offence which takes precedence and is found to be committed to the exclusion of the other offences is that which is sanctioned by the highest maximum penalty (rape takes precedence over battery); or that which subsumes the other offence because the latter was committed for the sole purpose of committing the former, or because the latter is a preliminary step to the former; (57) or that which, in accordance with the principle specialia generalibus derogant, is more specific than the other offence. It follows that only one penalty is imposed. (58)

138. However, the same conduct may also be found to infringe more than one statutory provision. This is the case, in particular, where the provisions at issue protect different social values. (59) In that case, in principle, Article 132-3 of the Code pénal (French Criminal Code) applies, which provides that, in the course of the same proceedings, only one penalty of the same nature (60) may be imposed, within the limit of the highest legal maximum. (61) However, it is possible that, by way of exception, the requirement that only one penalty of the same nature be imposed is not applied, with the result that separate penalties are imposed, albeit still within the limit of the highest legal maximum. (62)

(iii) Whether inspiration may be drawn from the principles of the legal orders of Member States with respect to the infringement, by the same conduct, of Article 4(1) and Article 7(1) of Regulation No 139/2004

139. In the present case, the same conduct is caught by Article 4(1) and Article 7(1) of Regulation No 139/2004. By analogy with the principles of national legal orders described above, it seems to me that the question is whether one of those two provisions subsumes the other.

140. I would propose that, if that is the case, only the provision which subsumes the other must be applied to the exclusion of the other, with the result that only one penalty may be imposed on Marine Harvest (Option 1). (63) If that is not the case, both provisions must be applied to the present case. However, in that situation, another question arises, namely whether separate penalties may be imposed. The view may be taken that separate penalties must be imposed, since Marine Harvest committed separate offences (Option 2); or that only one penalty must be imposed, since those two offences arise from the same conduct (Option 3); or that two penalties must be imposed, subject, however, to the requirement that their total amount does not exceed the 10% cap provided for by Article 14(2) of Regulation No 139/2004 (64) since, again, the two offences arise from the same conduct (65) (Option 4).

141. I should emphasise that, while Options 1 and 3 would, if chosen, result in the annulment of the decision at issue in so far as it finds an infringement of more than one provision and imposes more than one fine, Options 2 and 4 would not result in the annulment, either in part or in whole, of that decision. With regard to Option 4, in particular, I should note that the total amount of the fines imposed on Marine Harvest, that is EUR 20 million, represents less than 1% of the turnover of the undertakings concerned, (66) and that it is thus well below the 10% cap provided for by Article 14(2) of Regulation No 139/2004.

142. I consider that the conduct whereby a concentration is implemented before it is notified and before it is declared compatible with the internal market must be found to breach one provision only, namely Article 7(1) of Regulation No 139/2004. In other words, I take the view that, of the four options considered in the two previous points, Option 1 should be followed. I will set out below the reasons why I have come to that conclusion.

(iv) The infringement of Article 7(1) of Regulation No 139/2004 subsumes the infringement of Article 4(1) of that regulation

143. As mentioned above, I am of the opinion that the closing of the December 2012 Acquisition amounts to an infringement of Article 7(1) of Regulation No 139/2004, not of Article 4(1) of that regulation.

144. First, as noted in point 101 above, Article 4(1) and Article 7(1) of Regulation No 139/2004 have the same objective. They both seek to prevent the implementation of concentrations before they are notified and declared compatible, and thereby avoid any damage to competition that may arise from such early implementation. Therefore, those two provisions protect the same value and I see no reason why they should be applied together.

145. Besides, it seems to me that any damage to competition arises not from the failure to notify in breach of Article 4(1) of Regulation No 139/2004, but from the implementation of a concentration that has not been declared compatible, in breach of Article 7(1) of that regulation. It follows that any damage to competition that arises from the early implementation of a concentration should be found to breach Article 7(1) of Regulation No 139/2004, not Article 4(1) thereof.

146. Second, I should note that the failure to notify a concentration is a preliminary step to the implementation of that concentration. Indeed, why would an undertaking fail to notify a concentration? Either it is seeking to avoid review by the Commission, or it is unaware that the operation constitutes a concentration with an EU dimension. In both cases, it will proceed with the implementation of the concentration.

147. Third, I should point out that, while Article 4(1) of Regulation No 139/2004 requires that concentrations be ‘notified … prior to their implementation’, Article 7(1) of that regulation prohibits a concentration from being implemented ‘before its notification’ (first limb) and ‘until it has been declared compatible’ (second limb). Therefore, Article 4(1) and the first limb of Article 7(1) of Regulation No 139/2004 define the same offence, and they catch the same situation in which a concentration is implemented before it is notified. (67)

148. In that regard, I should note, that, as explained in point 98 above, it is not possible to infringe Article 4(1) of Regulation No 139/2004 alone. This was possible under Regulation No 4064/89, which required, in the original wording of Article 4(1), that concentrations be notified within 1 week of the conclusion of the agreement. Therefore, where a concentration was notified 1 month after the conclusion of the agreement but before it was implemented, the notifying party infringed Article 4(1) of Regulation No 4064/89, but not Article 7(1) of that regulation. This is no longer possible as Council Regulation (EC) No 1310/97 (68) abolished the one-week notification deadline (the reason for that abolition being that that deadline was considered unnecessary ‘as it normally is in the parties’ interest to notify as early as possible, with the aim of securing a decision as soon as possible’, (69) and, in practice, it was not strictly applied as the Commission was flexible in granting extensions). (70)

149. I should also note that, in practice, the Commission has not, to my knowledge, imposed a fine for the infringement of Article 4(1) of Regulation No 139/2004 or No 4064/89 alone. In all cases where the Commission imposed a fine for the infringement of that provision, another fine was imposed, in the same decision, for the infringement of Article 7(1) of Regulation No 4064/89 or No 139/2004. (71)

150. By contrast, it is possible to infringe Article 7(1) of Regulation No 139/2004 without infringing Article 4(1) of that regulation. Where a concentration is implemented after it is notified, but before it is declared compatible, (72) the notifying party infringes the second limb of Article 7(1) of Regulation No 139/2004, which prohibits the implementation of a concentration before it is declared compatible. However, there is no infringement of Article 4(1) of that regulation. Moreover, according to the judgment in Ernst & Young, the implementation, prior to the notification of a concentration, of a transaction that contributes to the change of control infringes Article 7(1) of Regulation No 139/2004. (73) However, in that situation, there is no infringement of Article 4(1) of that regulation because that transaction contributes to but does not achieve the change of control, and does not, therefore, constitute a concentration that needs to be notified.

151. Consequently, Article 7(1) of Regulation No 139/2004, while containing, in the first limb, all the elements of Article 4(1) of that regulation, contains, in the second limb, an additional element. In my view, it follows that the infringement of Article 7(1) of Regulation No 139/2004 subsumes the infringement of Article 4(1) of that regulation.

152. Therefore, I am of the opinion that the implementation of a concentration before it is notified and declared compatible amounts to an infringement of Article 7(1) of Regulation No 139/2004 alone. It does not amount to an infringement of both Article 4(1) and Article 7(1) of that regulation.

(v)    The General Court erred in upholding the Commission’s finding that Marine Harvest infringed Article 4(1) and Article 7(1) of Regulation No 139/2004.

153. The General Court dismissed the plea alleging infringement of the principles governing concurrent offences, on the ground that, first, the infringement of Article 4(1) and the infringement of Article 7(1) of Regulation No 139/2004 were subject to the same 10% cap, with the result that none of those two provisions could be regarded as taking precedence over the other (paragraph 350 of the judgment under appeal); and, second, the infringement of Article 4(1) was not a more specific offence than the infringement of Article 7(1) (paragraphs 351 to 362). (74)

154. First, I should emphasise that the fact that both offences are subject to the same cap does not establish that neither takes precedence over the other. This is one element to take into account, all the more since, under Regulation No 4064/89, the infringement of Article 4(1) was subject only to a fine of between EUR 1 000 and EUR 50 000, while the infringement of Article 7(1) of that regulation was subject to the same 10% cap as it is today. However, other factors should be taken into account in order to determine whether one offence takes precedence over the other. Account should be taken, for instance, of the nature of the offences (failure to notify or early implementation); of the fact that one offence (the failure to notify) is a typical preliminary step to the other (the early implementation); and of the fact that one offence, while catching all situations to which the other applies, covers additional situations. In particular, the General Court’s finding, in paragraphs 294, 295 and 306 of the judgment under appeal, that the infringement of Article 4(1) of Regulation No 139/2004 ‘necessarily entails infringement of’ Article 7(1) of that regulation, but the converse is not true, should have led it to the conclusion that the latter provision takes precedence over the other. However, there is no reference to that finding in the assessment, by the General Court, of the plea alleging infringement of the principles governing concurrent offences.

155. Second, I should note that the General Court examined whether the infringement of Article 4(1) of Regulation No 139/2004 was a more specific offence than the infringement of Article 7(1) of that regulation. It did not examine the opposite scenario, namely whether the infringement of Article 7(1) of Regulation No 139/2004 was more specific than that of Article 4(1) of that regulation.

156. The reason for that omission is that this was not alleged. Marine Harvest submitted, before the General Court, that the infringement of Article 4(1) of Regulation No 139/2004 was a more specific offence than the infringement of Article 7(1) of that regulation. It did not submit that the latter infringement was more specific than the former. (75)

157. However, this does not detract from the fact that the General Court could not conclude, in paragraph 373 of the judgment under appeal, that ‘in the present case, there is no primarily applicable provision’, on the sole ground that Article 4(1) of Regulation No 139/2004 was not ‘primarily applicable’ in respect of Article 7(1) of that regulation. The General Court could only reach that conclusion if it found, not only that Article 4(1) of Regulation No 139/2004 does not take precedence over Article 7(1) of that regulation, which it did; but also that the latter provision does not take precedence over the former, which it failed to do. The finding that ‘there is no primarily applicable provision’ implies a prior finding that none of the two provisions at issue takes precedence over the other. (76) It seems to me that, in finding that there was ‘no primarily applicable provision’ upon examination of only one of two possible scenarios, the General Court did not draw the conclusion from its own findings in paragraphs 294 to 306 of the judgment under appeal.

158. It cannot, in my view, be objected that the illegality of Article 14(2) of Regulation No 139/2004 should be declared before it can be found that the implementation of a concentration that has neither been notified nor declared compatible amounts to a breach of one, not two, provisions of that regulation.

159. In that respect, I should note that, in paragraph 306 of the judgment under appeal, the General Court held that, although ‘the current legal framework is unusual’, Marine Harvest ‘has not raised an objection of illegality in respect of particular provisions of Regulation No 139/2004’.

160. While Marine Harvest did not raise a plea of illegality either before the General Court or in its appeal before the Court of Justice, it did submit, at the hearing, that Article 14(2)(a) of Regulation No 139/2004 is illegal.

161. As the Commission submits, that plea of illegality is inadmissible as it was not raised before the General Court. (77)

162. However, in my view, it is not necessary that the Court declares that Article 14(2)(a) of Regulation No 139/2004 is illegal before it finds that separate fines cannot be imposed under that provision and Article 14(2)(b) of the same regulation for implementing a concentration in breach of Article 4(1) and Article 7(1) thereof.

163. Indeed, Article 14(2) of Regulation No 139/2004 does not specify whether the Commission may impose fines under subparagraph (a) and subparagraph (b), where the conditions for the application of each subparagraph are met (that is, where a concentration is implemented in breach of, respectively, the obligation to notify and the standstill obligation). It is true that Article 14(2) of Regulation No 139/2004 does not state that the Commission may impose a fine under subparagraph (a) or subparagraph (b) where the conditions for the application of each subparagraph are met. However, this does not detract from the fact that Article 14(2) of Regulation No 139/2004 does not expressly allow the Commission to impose fines under subparagraph (a) and subparagraph (b) where both subparagraphs are applicable. Therefore, a finding that the Commission cannot impose separate fines for the infringement, by the same conduct, of Article 4(1) and Article 7(1) of Regulation No 139/2004 is consistent with Article 14(2) of that regulation.

164. I conclude that the General Court erred in finding, in paragraphs 372 to 374, that the Commission could impose separate fines on Marine Harvest for the breach of Article 4(1) and Article 7(1) of Regulation No 139/2004 without infringing the principles governing concurrent offences.

165. It follows that the second part of the second ground of appeal is well founded.

166. In accordance with the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, if the appeal is well founded, the Court of Justice shall quash the decision of the General Court. It may itself give final judgment in the matter, where the state of the proceedings so permits. I consider that this is so in the present case.

167. It is apparent from the grounds set out in points 143 to 152 above that the Commission erred in finding that, by implementing the December 2012 Acquisition before it was notified and declared compatible, Marine Harvest infringed Article 4(1) of Regulation No 139/2004, and, consequently, in imposing on Marine Harvest a fine of EUR 10 million for the infringement of that provision.

168. It is thus necessary to uphold the plea raised by Marine Harvest before the General Court, alleging infringement of the principles governing concurrent offences, and to annul, first, Article 1 of the decision at issue in so far as it finds an infringement of Article 4(1) of Regulation No 139/2004, and, second, Article 2 of that decision, which imposes a fine of EUR 10 million on Marine Harvest for the infringement of Article 4(1) of that regulation.

VI.    Conclusion

169. I therefore consider that the Court should:

–        set aside the judgment of 26 October 2017, Marine Harvest v Commission (T‑704/14, EU:T:2017:753);

–        annul Article 1 of Commission Decision of 23 July 2014 imposing a fine for putting into effect a concentration in breach of Article 4(1) and Article 7(1) of Council Regulation (EC) No 139/2004 (Case M. 7184 — Marine Harvest/Morpol), in so far as it finds that, by putting into effect a concentration with an EU dimension in the period from 18 December 2012 to 30 September 2013, Marine Harvest ASA infringed Article 4(1) of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation);

–        annul Article 2 of Commission Decision of 23 July 2014;

–        order the European Commission to bear its own costs and to pay the costs incurred by Marine Harvest ASA.

1      Original language: English.

2      Judgment of 26 October 2017, Marine Harvest v CommissionMarine Harvest v CommissionMarine Harvest v Commission (T‑704/14, EU:T:2017:753; ‘the judgment under appeal’).

3      Decision imposing a fine for putting into effect a concentration in breach of Article 4(1) and Article 7(1) of Council Regulation (EC) No 139/2004 (Case M.7184 – Marine Harvest/Morpol) (C(2014) 5089 final).

4      Decision pursuant to Article 6(1)(b) in conjunction with Article 6(2) of Regulation No 139/2004 (Case M.6850 — Marine Harvest/Morpol) (C(2013) 6449 final).

5      Regulation of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) (OJ 2004 L 24, p. 1).

6      Prior to its acquisition by Marine Harvest, Morpol was listed on the Oslo (Norway) Stock Exchange. Marine Harvest is also listed on the Oslo Stock Exchange.

7      As contained in Annex I to Commission Regulation (EC) No 802/2004 of 7 April 2004 implementing Regulation No 139/2004 (OJ 2004 L 133, p. 1).

8      See recitals 7 to 9 of the Clearance Decision.

9      See recitals 85 to 88 of the decision at issue.

10      See recitals 100 to 119 of the decision at issue.

11      The five pleas in law raised before the General Court alleged, respectively, a manifest error of law and fact in that the decision at issue rejected the applicability of Article 7(2) of Regulation No 139/2004 (first plea); a manifest error of law and fact in that the decision at issue concluded that the applicant was negligent (second plea); a breach of the principle ne bis in idem (third plea); a manifest error of law and fact in imposing fines on the applicant (fourth plea); and a manifest error of law and fact and a failure to state reasons in relation to setting the levels of the fines (fifth plea). Since, before the Court, Marine Harvest challenges only the General Court’s assessment of the first and third pleas raised before the latter court, I will summarise the General Court’s assessment only of those two pleas.

12      OJ 2008 C 95, p. 1.

13      Judgment of 23 February 2006, Cementbouw Handel & Industrie v CommissionCementbouw Handel & Industrie v CommissionCementbouw Handel & Industrie v Commission (T‑282/02, EU:T:2006:64, paragraph 104).

14      For the sake of completeness (since this is not relied upon by Marine Harvest), I should note that, as of 12 November 2013, Marine Harvest was the sole shareholder of Morpol (see point 11 above).

15      As explained in the decision at issue, although the acquisition, by Marine Harvest, of a 48.5% stake in Morpol did not confer on Marine Harvest de jure control of that company, it conferred de facto control. This was because, first, the remainder of the shareholdings was widely dispersed; and, second, a simple majority of the shares present and voting at Morpol’s shareholders’ meetings was sufficient to carry a motion such as the election of the board of directors or the approval of dividends, and, in the light of the attendance rate at the ordinary and extraordinary meetings, Mr M. (whose shareholding Marine Harvest acquired by means of the December 2012 Acquisition) always represented a very large majority of the votes cast at those meetings (see recitals 48 to 84 of the decision at issue).

16      I shall not dwell on the second situation envisaged by recital 20 of Regulation No 139/2004 (series of transactions in securities taking place within a reasonably short period of time), given that, first, Marine Harvest relies exclusively on the first situation envisaged by that recital (transactions linked by condition), and, second, the General Court did not examine the second situation (see paragraphs 97, 98 and 149 of the judgment under appeal).

17      Judgment of 23 February 2006 (T‑282/02, EU:T:2006:64, paragraph 109) (emphasis added).

18      Proposal of 11 December 2002 for a Council Regulation on the control of concentrations between undertakings (‘The EC Merger Regulation’) (‘the Commission’s proposal’) (OJ 2003 C 20, p. 4).

19      Regulation of 21 December 1989 on the control of concentrations between undertakings (OJ 1989 L 395, p. 1). Regulation No 4064/89 was repealed and replaced by Regulation No 139/2004.

20      Emphasis added. I should specify that, although the words ‘provided that the transactions taken as a whole satisfy the requirements of paragraph 1’ are used in the English version of Article 3(4) of the Commission’s proposal, they are not included in the French version of that provision. However, they are included in the German, Spanish, Italian and Portuguese versions. The error in the French version appears to have been corrected by the Council (compare the English and the French versions of Council document of 24 October 2003, n° 13892/03).

21      As evidenced by a Commission staff paper submitted to the Committee of Permanent Representatives (Coreper) during the preparatory works for Regulation No 139/2004, which the Commission produced before the Court. It is apparent from that document that the Commission brought to the attention of the Council the fact that, were Article 3(4) of its proposal not adopted, it would have to assess multiple transactions as it had in the past, that is on the basis of the ‘single concentration’ concept. This led to a compromise with Coreper, whereby Article 3(4) of the Commission’s proposal was not retained, but a sentence was added to recital 23 of Regulation No 4064/89, now recital 20 of Regulation No 139/204. That sentence is the one cited in point 48 above.

22      Emphasis added. The same paragraph further states that the transactions are linked de jure if ‘the agreements themselves are linked by mutual conditionality’, and that they are linked de facto if an economic assessment established that ‘each of the transactions necessarily depends on the conclusion of the others’ (emphasis added).

23      Judgment of 23 February 2006 (T‑282/02, EU:T:2006:64).

24      In which case the question whether the exemption from the standstill obligation under Article 7(2) of Regulation No 139/2004 applies to the December 2012 Acquisition would not arise, and there would be no need to examine the second part of the first ground of appeal.

25      Judgment of 31 May 2018 (C‑633/16, EU:C:2018:371, paragraph 52).

26      Judgment of 12 December 2012, Electrabel v CommissionElectrabel v CommissionElectrabel v Commission (T‑332/09, EU:T:2012:672, paragraph 246).

27      I note that Marine Harvest relies only on the first situation envisaged by Article 7(2) of Regulation No 139/2004 (public bids). However, for the sake of completeness, I will also examine the second situation envisaged by that provision (series of transactions in securities), since, first, Marine Harvest’s argument based on the rationale of that provision concerns actually the second situation, and, second, the General Court examined the second situation (see paragraphs 73 to 82 and 176 of the judgment under appeal).

28      I should specify that Article 7(3) of Regulation No 4064/89 (now Article 7(2) of Regulation No 139/2004) exempted only public bids from the standstill obligation. That exemption was extended to series of transactions in securities by Regulation No 139/2004.

29      It follows from paragraph 188 of the Green Paper that the application of the standstill obligation to creeping takeovers may be seen as ‘impractical’, and from paragraph 76 of the Summary of the replies received to the Green Paper that it is difficult to determine ‘when the notification obligation arises in a creeping takeover’ (in other words, which share is the ‘tipping’ share whose acquisition confers control of the target undertaking). For those reasons, Regulation No 139/2004 extended the scope of the exemption from the standstill obligation to series of transactions in securities. See Green Paper on the Review of Regulation No 4064/89, presented by the Commission on 11 December 2001 (‘the Green Paper’) (COM(2001) 745 final), and the Summary of the Replies received to the Green Paper, available on the website of the Commission’s Directorate-General for Competition.

30      I should specify that the Commission did not raise before the Court the inadmissibility of the plea alleging infringement of the principle ne bis in idem, or of the plea alleging infringement of the principles governing concurrent offences.

31      That is, Opinions of Advocate General Sharpston in Kraaijenbrink (C‑367/05, EU:C:2006:760, points 56, 58 and 61), and of Advocate General Bot in Beneo-OraftiBeneo-OraftiBeneo-Orafti (C‑150/10, EU:C:2011:164, footnote 43).

32      I recall that the plea alleging infringement of the set-off principle is raised in the alternative, that is, if the Court considers that there is no infringement of the principle ne bis in idem.

33      Judgments of 15 October 2002, Limburgse Vinyl Maatschappij and Others v CommissionLimburgse Vinyl Maatschappij and Others v CommissionLimburgse Vinyl Maatschappij and Others v Commission (C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P, EU:C:2002:582, paragraph 59); of 14 February 2012, Toshiba Corporation and Others (C‑17/10, EU:C:2012:72, paragraph 94); and of 3 April 2019, Powszechny Zakład Ubezpieczeń na Życie (C‑617/17, EU:C:2019:283, paragraph 28).

34      Judgments of 7 January 2004, Aalborg Portland and Others v CommissionAalborg Portland and Others v CommissionAalborg Portland and Others v Commission (C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6, paragraph 338), and of 14 February 2012, Toshiba Corporation and Others (C‑17/10, EU:C:2012:72, paragraph 97). For the sake of completeness, I should specify that the relevance of the third condition mentioned in point 95 above, namely the unity of the legal interest protected, has been questioned. According to case-law, EU competition rules and national competition rules pursue ‘different ends’ (see judgment of 13 February 1969, Wilhelm and Others, 14/68, EU:C:1969:4, paragraph 11) and they protect, therefore, different legal interests. It follows that the principle ne bis in idem does not preclude that separate fines are imposed on the same undertaking for the infringement of, on the one side, EU competition rules, and, on the other side, national competition rules. However, the relevance of the condition that the legal interest protected must be the same is disputed since, first, that condition is not applied in areas of EU law other than competition law (see Opinions of Advocate General Kokott in Toshiba Corporation and Others, C‑17/10, EU:C:2011:552, point 116, and of Advocate General Campos Sánchez-Bordona in Menci, C‑524/15, EU:C:2017:667, point 27), and, second, it is at odds with the increasing convergence of EU and national competition rules and with the decentralisation for the application of EU competition rules brought about by Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in [Articles 101 and 102 TFEU] (OJ 2003 L 1, p. 1) (see Opinion of Advocate General Kokott in Toshiba Corporation and Others, C‑17/10, EU:C:2011:552, points 121 to 123; Opinion of Advocate General Wahl in Powszechny Zakład Ubezpieczeń na Życie, C‑617/17, EU:C:2018:976, point 48; and Veenbrink, M., ‘Bringing Back Unity: Modernizing the Application of the Non Bis in Idem Principle’, World Competition, 2019, Volume 42, Issue 1, pp. 67 to 86). That question, however, does not arise in the present case, for the reason set out in point 101 below.

35      See the second sentence of Article 4(2) of Regulation No 139/2004.

36      See judgment of 31 May 2018, Ernst & Young (C‑633/16, EU:C:2018:371, paragraphs 41 and 42).

37      Judgment of 3 April 2019, Powszechny Zakład Ubezpieczeń na Życie (C‑617/17, EU:C:2019:283, paragraph 35).

38      The applicants, which were addressees of the first decision, submitted that the second procedure could result not only in fines for the Japanese suppliers, but also in new fines for them.

39      Judgment of 27 February 2014, LG Display and LG Display Taiwan v CommissionLG Display and LG Display Taiwan v CommissionLG Display and LG Display Taiwan v Commission (T‑128/11, EU:T:2014:88, paragraph 242).

40      Judgment of 15 October 2002 (C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P, EU:C:2002:582, paragraph 62). See also judgment of 1 July 2009, ThyssenKrupp Stainless v CommissionThyssenKrupp Stainless v CommissionThyssenKrupp Stainless v Commission (T‑24/07, EU:T:2009:236, paragraphs 190 and 191). The principle ne bis in idem would probably, however, preclude the resumption of proceedings if the Commission’s decision was annulled on substantive grounds, as this would amount to an ‘acquittal’ (judgment of 6 December 2012, Commission v Verhuizingen CoppensCommission v Verhuizingen CoppensCommission v Verhuizingen Coppens, C‑441/11 P, EU:C:2012:778, paragraph 24; and Opinion of Advocate General Kokott in Commission v Verhuizingen CoppensCommission v Verhuizingen CoppensCommission v Verhuizingen Coppens, C‑441/11 P, EU:C:2012:317, point 27).

41      Judgments of 18 December 2008, Coop de France Bétail et Viande and Others v CommissionCoop de France Bétail et Viande and Others v CommissionCoop de France Bétail et Viande and Others v Commission (C‑101/07 P and C‑110/07 P, EU:C:2008:741); of 21 July 2011, Beneo-Orafti (C‑150/10, EU:C:2011:507); and of 5 October 2011, Transcatab v CommissionTranscatab v CommissionTranscatab v Commission (T‑39/06, EU:T:2011:562).

42      Judgment of 21 July 2011, Beneo Orafti (C‑150/10, EU:C:2011:507, paragraphs 70 and 74).

43      Judgments of 18 December 2008, Coop de France Bétail et Viande and Others v CommissionCoop de France Bétail et Viande and Others v CommissionCoop de France Bétail et Viande and Others v Commission (C‑101/07 P and C‑110/07 P, EU:C:2008:741, paragraphs 128 and 130), and of 13 December 2006, FNCBV v CommissionFNCBV v CommissionFNCBV v Commission (T‑217/03 and T‑245/03, EU:T:2006:391, paragraphs 342 and 344).

44      Judgment of 5 October 2011, Transcatab v CommissionTranscatab v CommissionTranscatab v Commission (T‑39/06, EU:T:2011:562, paragraphs 254 to 259). The appeal brought against that judgment was dismissed (order of 13 December 2012, Transcatab v CommisionTranscatab v CommisionTranscatab v Commision, C‑654/11 P, not published, EU:C:2012:806).

45      Judgments of 13 February 1969, Wilhelm and Others (14/68, EU:C:1969:4, paragraph 11); of 6 April 1995, Sotralentz v CommissionSotralentz v CommissionSotralentz v Commission (T‑149/89, EU:T:1995:69, paragraph 29); and of 27 September 2006, Jungbunzlauer v CommissionJungbunzlauer v CommissionJungbunzlauer v Commission (T‑43/02, EU:T:2006:270, paragraph 290).

46      See footnote 34.

47      Judgments of 29 June 2006, Showa Denko v CommissionShowa Denko v CommissionShowa Denko v Commission (C‑289/04 P, EU:C:2006:431, paragraphs 57 to 60); of 29 June 2006, SGL Carbon v CommissionSGL Carbon v CommissionSGL Carbon v Commission (C‑308/04 P, EU:C:2006:433, paragraphs 33 to 36) ; of 10 May 2007, SGL Carbon v CommissionSGL Carbon v CommissionSGL Carbon v Commission (C‑328/05 P, EU:C:2007:277, paragraphs 31 to 34); and of 9 July 2015, InnoLux v CommissionInnoLux v CommissionInnoLux v Commission (C‑231/14 P, EU:C:2015:451, paragraph 75).

48      Judgments of 29 June 2006, Showa Denko v CommissionShowa Denko v CommissionShowa Denko v Commission (C‑289/04 P, EU:C:2006:431, paragraphs 50 to 56); of 29 June 2006, SGL Carbon v CommissionSGL Carbon v CommissionSGL Carbon v Commission (C‑308/04 P, EU:C:2006:433, paragraphs 28 to 32) ; of 10 May 2007, SGL Carbon v CommissionSGL Carbon v CommissionSGL Carbon v Commission (C‑328/05 P, EU:C:2007:277, paragraphs 24 to 30); and of 9 July 2015, InnoLux v CommissionInnoLux v CommissionInnoLux v Commission (C‑231/14 P, EU:C:2015:451, paragraph 75).

49      C‑367/05, EU:C:2006:760, point 58.

50      Judgment of 18 July 2007, Kraaijenbrink (C‑367/05, EU:C:2007:444).

51      See recitals 8 and 11, and Article 21(2) and (3) of Regulation No 139/2004. The Commission has exclusive jurisdiction to review concentrations with an EU dimension, that is, that meet the turnover thresholds provided for by Article 1(2) and (3) of that regulation (unless the Commission decides to refer a concentration to the competent authorities of a Member State under Article 4(4) or Article 9 of Regulation No 139/2004).

52      In the present case, the EU legal system, more precisely, Article 4(1) and Article 7(1) of Regulation No 139/2004.

53      See Brögelmann, ‘Methodik der Strafzumessung’, Juristische Schulung, 2002, p. 903 (see p. 905).

54      For instance, where the same conduct is caught by Paragraph 212 of the German Criminal Code, which prohibits murder, and by Paragraph 223 of that code, which prohibits causing bodily harm, only the former provision applies. See Schönke/Schröder Strafgesetzbuch, 30th edition, 2019, Vorbemerkungen zu den §§ 52 ff.

55      See Rassat, M.-L., Droit pénal général, Ellipses, 4th edition, 2017, paragraph 242.

56      See judgment of the Cour de cassation, chambre criminelle (Court of Cassation (criminal chamber), France) of 6 January 1999 (n° 98-80.730).

57      For instance, a person cannot be found guilty of, on the one hand, laundering the proceeds of fraud offences committed by his partner, and, on the other hand, concealment. Indeed, the fact that the funds obtained by fraud were paid into that person’s bank account, which amounts to the offence of concealment, was ‘no more than a preliminary step’ to the purchase, with those funds, of a property, which constitutes the offence of laundering of proceeds of fraud. Therefore, that person was found guilty only of laundering (see judgment of the Cour de cassation, chambre criminelle (Court of Cassation, (criminal chamber)) of 26 October 2016, n° 15-84.552).

58      See Dreyer, E., Droit pénal général, LexisNexis, 4th edition, 2016, paragraphs 632 and 633.

59      For instance, where the same persons hijack an aircraft and take the pilot, crew and passengers of that aircraft hostages, they may be found guilty of two offences, namely the hijacking of aircraft and the taking of hostages. Indeed, those offences protect different interests, respectively free movement in the airspace and the life of individuals and victims (see judgment of the Cour de cassation, chambre criminelle (Court of Cassation (criminal chamber)) of 27 November 2003, n° 83-93.975).

60      Custodial sentences are all of the same nature. Similarly, fines are all of the same nature.

61      See Pradel, J., Droit pénal général, Éditions Cujas, 20th edition, 2014, paragraph 342(4°).

62      See judgment of the Cour de cassation, chambre criminelle (Court of Cassation (criminal chamber)) of 9 December 2014 (n° 13-85.937). In that judgment, that court found, first, that the same conduct amounted to an infringement of, on the one side, the prohibition on unintentional homicide, and, on the other side, workers’ safety rules. Second, that court held that ‘separate penalties of the same nature could be imposed for those infringements, provided that, as is the case, their total amount does not exceed the highest legal maximum’.

63      I should emphasise that my proposal is strictly limited to the infringement, by the same conduct, of Article 4(1) and Article 7(1) of Regulation No 139/2004. It does not in any way affect the possibility, for the Commission, to impose more than one fine on the same undertaking where it finds several infringements, by that undertaking, of Article 101 TFEU. Indeed, the situation in the present case is one where the same conduct infringes multiple provisions of EU competition law, namely Article 4(1) and Article 7(1) of Regulation No 139/2004. The question, therefore, is whether those provisions define the same offence, or whether one subsumes the other, in which case both should not apply to the same conduct. By contrast, where the Commission imposes more than one fine on the same undertaking on the basis of Article 101 TFEU, this is because, by different conduct, that undertaking infringed more than once the same provision of EU competition law, namely the prohibition on agreements and concerted practices laid down in Article 101 TFEU. The question, in that case, is whether there are indeed multiple infringements of Article 101 TFEU, in which case multiple fines may be imposed; or whether the unlawful actions at issue constitute one and the same infringement of Article 101 TFEU, in which case only one fine may be imposed. That is an entirely different question from the one we are interested in.

64      According to that provision, fines may not exceed 10% of the aggregate turnover of the undertakings concerned.

65      Which would, I assume, imply that consistency with the proportionality principle (were it raised in a future case) would have to be assessed in respect of the total amount of the fines, not in respect of each fine taken individually.

66      See footnote 5 of the decision at issue.

67      That situation may arise, in particular, where the parties consider that their operation does not constitute a concentration for the purposes of Regulation No 139/2004 (for instance, because they acquired a minority shareholding which they regard as insufficient to confer control of the target), or that the concentration does not have an EU dimension.

68      Regulation of 30 June 1997 amending Regulation No 4064/89 (OJ 1997 L 180, p. 1).

69      See paragraph 182 of the Green Paper, cited at footnote 29 above.

70      See Levy, N., and Cook, C., European Merger Control Law: A Guide to the Merger Regulation, LexisNexis, 2003, paragraph 17.03[3].

71      The Commission imposed fines for the implementation of a concentration before it was notified and declared compatible on five occasions: (i) Commission Decision of 18 February 1998 imposing fines for failing to notify and putting into effect a concentration in breach of Article 4(1) and Article 7(1) of Regulation No 4064/89 (Case IV/M.920) — Samsung/AST; (ii) Commission Decision of 10 February 1999 imposing fines for failing to notify and putting into effect three concentrations in breach of Article 4 and Article 7(1) of Regulation No 4064/89 (Case IV/M.969 — A.P.Møller); (iii) Commission Decision of 10 June 2009 imposing a fine for putting into effect a concentration in breach of Article 7(1) of Regulation No 4064/89 (Case COMP/M.4994 — Electrabel/Compagnie Nationale du Rhône); (iv) Commission Decision of 24 April 2018 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 M.7993 — Altice/PT Portugal); and (v) the decision at issue. Four of those decisions rely on the infringement of Article 4(1) along with Article 7(1) of Regulation No 4064/89 or No 139/2004; one on the infringement of Article 7(1) of Regulation No 4064/89 alone (the decision in Case M.4994 — Electrabel/Compagnie Nationale du Rhône); none on the infringement of Article 4(1) of Regulation No 4064/89 or No 139/2004 alone. I should specify that a sixth decision was adopted on 27 June 2019, whereby the Commission imposed on Canon a fine of EUR 28 million for partially implementing its acquisition of Toshiba Medical Systems Corporation. It seems that that fine penalises the infringement of Article 4(1) and Article 7(1) of Regulation No 139/2004, given that the Commission’s press release states that ‘Canon breached both the notification requirement and the standstill obligation’ (see Commission press release of 27 June 2019, IP/19/3429 — the decision has not been published yet).

72      That situation may arise, in particular, where the parties are unaware of what constitutes implementation for the purposes of Regulation No 139/2004, or where they erroneously consider that the exemption under Article 7(2) of that regulation applies.

73      Judgment of 31 May 2018, Ernst & Young (C‑633/16, EU:C:2018:371, paragraph 52).

74      I should note that paragraphs 363 to 371 of the judgment under appeal address the question whether ‘in general terms’ (see paragraph 371) and in the case-law of international courts, the principles governing concurrent offences preclude separate infringements from arising from the same conduct. The crucial question, however, is whether, for the purposes of Regulation No 139/2004, the principles governing concurrent offences preclude separate infringements from arising from the same conduct.

75      I should specify that, whereas, in its appeal before the Court, Marine Harvest submitted that the infringement of Article 4(1) of Regulation No 139/2004 takes precedence over the infringement of Article 7(1) of that regulation, it took the opposite position at the hearing and argued that the latter offence has a wider scope and, therefore, it subsumes the former, which is no more than an empty shell.

76      I should note, in that regard, that the General Court itself does not appear to be satisfied that the fact that there is no primarily applicable provision follows from the sole finding that the infringement of Article 4(1) of Regulation No 139/2004 does not take precedence over the infringement of Article 7(1) of that regulation. Indeed, in that case, there would have been no need for the General Court to rely also on the fact that the infringement of both provisions is subject to the same cap.

77      See order of 20 January 2009, Sack v CommissionSack v CommissionSack v Commission (C‑38/08 P, EU:C:2009:21, paragraphs 21 to 24).

© European Union
The source of this judgment is the Europa web site. The information on this site is subject to a information found here: Important legal notice. This electronic version is not authentic and is subject to amendment.