On December 23 2015 the Competition Authority unconditionally approved a concentration between Cordeel Group and Imtech Belgium. Interestingly, the Competition Authority fined Cordeel €5,000 for gun jumping.
In late August 2015 Cordeel acquired Imtech Belgium in the context of a bankruptcy procedure. Both undertakings are active in construction, with Imtech Belgium essentially acting as a subcontractor to Cordeel. In order to ensure business continuity and limit the negative impact of Imtech Belgium's bankruptcy on Cordeel's operations, time was of the essence. The acquisition was completed within a couple of days.
The takeover was widely covered by the Belgian press. Publicly available information also seemed to indicate that the concentration had to be notified to the Competition Authority. It also appeared that the concentration had already been implemented. When it transpired that the concentration had not been notified, the investigation service of the Competition Authority contacted the buyer and reminded it of its filing obligations under Belgian competition law. Only then did Cordeel take action.
On October 20 2015 it requested a derogation from the obligation to suspend the transaction during merger control proceedings. Like EU competition law, Belgian competition law prohibits the parties to a notifiable concentration from implementing the concentration before obtaining the Competition Authority's approval. Although filed after the acquisition had been implemented, the request for a derogation was considered justified given the need to ensure the continuity of Imtech Belgium. In the derogation decision, the president of the Competition Authority also considered the fact that the concentration was unlikely to impede competition on the Belgian market significantly. Further, the derogation was granted retroactively as from the date of the acquisition in order to safeguard the legal validity of the acts of the buyer from the effective date of implementation.
Cordeel subsequently notified the concentration to the Competition Authority. The concentration was eligible for notification under the simplified procedure as there was no horizontal overlap and only a limited vertical link between the activities of the parties. However, the Competition Authority's Investigation Service considered that Cordeel's behaviour in implementing the concentration before its notification and grant of Competition Authority approval constituted a special circumstance which required review under the normal merger control procedure. In contrast to the simplified procedure – which is the prerogative of the Investigation Service – the normal procedure includes a longer review by the Competition College. Further, only the Competition College can impose fines for gun jumping, which explains the Investigation Service's decision. In order to bring the case before the Competition College, the simplified procedure was set aside.
Unsurprisingly, the Competition College unconditionally cleared the acquisition. However, it fined Cordeel €5,000 for having jumped the gun. The fine is rather modest, given the fact that an undertaking can be fined up to 10% of its worldwide turnover for gun jumping. In determining the level of the fine, the Competition College took into account:
- the lack of negative impact of the concentration on competition;
- the limited duration of the infringement;
- the lack of intent; and
- the value of the transaction.
The time pressure on the concentration caused by Imtech's impending bankruptcy was accepted as an exceptional attenuating circumstance. However, as a matter of principle, the Competition College also clarified that more than 20 years after the introduction of a merger control regime in Belgium, gun jumping cannot be tolerated.
This is only the second time that the Competition Authority (or its predecessor) has imposed a fine for gun jumping. This case also demonstrates that the Competition Authority actively monitors M&A activity in Belgium. It is clear that it does not shy away from proactively identifying transactions that could be subject to a filing obligation under Belgian competition law and pursuing undertakings that might fail to do so. The decision therefore acts as a strong reminder to parties to a concentration and their advisers to be alert to the risk of Competition Authority intervention. By ignoring a filing obligation and implementing the concentration before having obtained the Competition Authority's approval, undertakings may be liable to fines, even in non-problematic cases with limited or no horizontal and vertical links.
In addition, in cases where the Investigation Service deems it necessary to impose a fine for gun jumping, the parties will lose the benefits of the simplified merger control procedure and be subjected to the lengthier normal review procedure. However, the Competition College noted that even in that case, this should not impede the Competition Authority from limiting the scope of the review to that of a simplified procedure (which is what actually happened in practice).
Interestingly, in this case the minister of economic affairs made use of his right to be heard in merger control proceedings. He intervened in the procedure by asking the Competition College not to impose a fine or to impose only a symbolic one, given the specific circumstances of the case.
For further information on this topic please contact Koen Platteau or Geneviève Borremans at Simmons & Simmons LLP by telephone (+32 2 542 0960) or email (email@example.com or firstname.lastname@example.org). The Simmons & Simmons LLP website can be accessed at www.simmons-simmons.com.
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