The absence of prior notice of mergers may result in significant fines without breaching the principle of proportionality

A series of judgments recently handed down by national and European authorities and courts has recalled the high financial consequences which may be borne by companies which have failed to notify and have implemented their merger without authorization from the competent competition authority.

For the record, the Commission can impose fines of up to 10 percent of the total turnover of the companies concerned. In France, the fine imposed by the Competition Authority can be as much as five percent of the turnover recorded by the buyer in France, increased by, as the case may be, the turnover recorded by the target in France during the same period. These sanctions are incurred even if the transaction is later authorized by the competent authorities. This implies that companies must evaluate whether their transaction requires a control by competition authorities, which can sometimes be complex, especially when acquiring a minority shareholding.

The Norwegian salmon producer, Marine Harvest, suffered a bitter experience in this respect after having failed to notify the acquisition of 48.5 percent of shares in Morpol which gave it, according to the Commission, a de facto exclusive control of the target. Following the transaction, Marine Harvest had a stable majority during shareholders’ meetings, due to the broad distribution of remaining shares and the past attendance rates at these meetings. Marine Harvest, which had completed this transaction eight months before giving notice, was therefore fined €20 million on July 23, 2014. To fix the amount of this fine, the Commission took into account the fact that Marine Harvest is a large European company which could not be unaware of merger control rules. Moreover, it ruled that the offense was particularly serious as the transaction had raised serious competition issues. However, the fact that Marine Harvest had not exercised its voting rights in the target after having acquired control thereof was considered as an extenuating circumstance.

The circumstances of this case cannot be mentioned without recalling another of the Commission’s decisions, handed down in 2009 since upheld by the European General Court and then the Court of Justice of the European Union on July 3, 2014. The case concerned Electrabel which was fined €20 million for having carried out a merger before obtaining authorization. Electrabel had increased its shareholding in the target to 49.95 percent of the capital and 47.92 percent of voting rights and only gave notice of the transaction four years later. The Commission had decided, in accordance with the idea of de facto exclusive control by a minority shareholder, that a sustainable change of control had taken place following this acquisition, even though the transaction did not give Electrabel the majority of voting rights in the target.

Finally, as the Conseil d’Etat confirmed in a decision dated July 16, 2014 concerning a transaction not notified by the Castel group, breach of the obligation to give notice of a merger constitutes, in itself and whether the transaction has anti-competitive effects or not, a serious breach and cannot be considered a mere failure to notify. The Conseil d’Etat thus dismissed the application for a priority preliminary ruling on the issue of constitutionality according to which the sanction provided by the Commercial Code for failure to notify was disproportionate to the seriousness of the offense.

The allegedly unfair behavior of a competitor does not justify exclusionary practices against it

Cegedim, in a dominant position on the market of medical information databases intended for pharmaceutical laboratories, was heavily sanctioned by the French Competition Authority on July 8, 2014, for having implemented discriminatory practices against its competitor on the related market of client management software use for the pharmaceutical industry.

In this case, Cegedim was refusing to sell its database, called “One Key”, to laboratories using the management software commercialized by Euris, whereas it agreed to sell the database in question to those using competing software. This refusal was justified by the existence of a dispute for infringement initiated against Euris.

Following a complaint lodged by Euris, the Authority first examined whether “One Key” was an essential infrastructure whose access should be granted to a competitor’s clients.

Although the Authority found that, from an economic standpoint, this database was difficult to replicate, at least in the short term, it refused to consider it as an essential infrastructure on the ground that it was not indispensable. It was demonstrated that some laboratories function with their own databases considered as alternative solutions, even if these alternatives are far less efficient.

The Authority then examined whether Cegedim’s discriminatory practice could be justified by Euris’ allegedly unfair behavior. On this point, it reaffirmed its position adopted in previous decisions according to which the legitimate protection of a company’s interests does not justify using anticompetitive practices, such as the discriminatory refusal to sell by a company in a dominant position. The only option for Cegedim to protect itself was to bring a legal action before the competent authorities.

This abusive treatment suffered by Euris caused it to lose 70 percent of its clientele and any opportunity to develop itself on the market. In addition, the choice of client management software was limited on the market to the laboratories’ detriment.

Given the duration of the offense (six years), the seriousness of the facts and the damage to the economy, the Authority imposed a €5.7 million fine on Cegedim and sent a strong message to companies occupying a dominant position on the market: although refusal to sell is no longer prohibited per se since 1996, it is still punishable when it is discriminatory.

A dominant company cannot disparage its competitor: a case of the biter bit

In a decision rendered on July 24, 2014, the French Competition Authority imposed a €1.7 million fine on Société Nouvelle des Yaourts de Littée (SNYL) on the grounds that it had abused its dominant position on the market of ultra-fresh products in the French West Indies by making disparaging comments concerning the dairy products of one of its closest competitors, Laiterie de Saint-Malo.

What is worth noting in this case is that the investigation was launched after SNYL complained to the DGCCRF (French General Directorate for Competition, Consumer Affairs and Fraud Control) that its competitor Malo did not comply with certain applicable regulations. The Authority then examined the case and found that SNYL had tried to weaken its competitor by making comments to professionals so as to give rise to suspicion regarding the freshness of Malo’s products, basing itself on bacteriological analysis results devoid of any scientific objectivity. SNYL also alleged non-compliance with eat-by-dates whereas the practice in issue was still tolerated.

This disparagement policy resulted in Malo’s exclusion from the trade union Syndifrais and the delisting of Malo products in one of the local stores, due to the distributors’ sensitivity to a health risk.

This case shows that complaining about a competitor for alleged regulatory breaches should only be considered if the dominant company is irreproachable in the comments it makes in other circumstances on the market about the same competitor …