On April 27, 2023, Advocate General Collins issued his opinion in relation to the appeal by New Altice Europe BV* against a 2018 European Commission decision fining the company for “gun-jumping,” having implemented a concentration prior to clearance under the European Commission Merger Regulation.
The transaction at issue was Altice’s acquisition, in December 2014, of PT Portugal. Although the acquisition was cleared by the European Commission in April 2015, it had been notified of the transaction only at the end of February 2015, more than two months after completion. Hence, in April 2018, the Commission fined Altice € 62,250,000 for implementing the concentration in December 2014 prior to notification, contrary to Article 4(1) of Regulation no 139/2004, and a further € 62,250,000 for implementing a concentration prior to clearance, in violation of Article 7(1) of the Regulation. Altice sought annulment of the decision, and in September 2021 the General Court issued a decision reducing to € 56,025,000 the fine for infringement of Article 4(1), and dismissing the remainder of Altice’s action.
On appeal against this ruling, Altice challenged both the legality and application of Articles 4(1) and 14(2)(a) of Regulation No 139/2004. Altice also challenged whether it in fact could be deemed to have implemented the concentration under the regulatory definition, and finally, the amount of the fines imposed by the Commission.
Altice’s arguments under Article 277 of the Treaty on the Functioning of the European Union, that Articles 4(1) and 14(2)(a) of the Regulation do not allow the Commission to impose multiple fines on the same entity for conduct already penalized under Articles 7(1) and 14(2)(b), were rejected by the Advocate General, who noted that both previous and current versions of the Regulation differentiate between the obligation to notify and the obligation not to implement concentrations before authorization – and independently permit the imposition of fines.
The Advocate General also rejected Altice’s assertion that “implementation” of the concentration as defined by the Regulation occurs only when shares are transferred.
In its appeal, Altice also contested the General Court’s characterization of pre-merger information exchanges between Altice and PT Portugal. Advocate General Collins rejected Altice’s claims that the General Court’s interpretation distorted the facts, saying that the information exchanges contributed to demonstrating that Altice had exercised decisive influence over aspects of the target’s business, and should not be assessed separately, as claimed by Altice, under Article 101 TFEU.
Altice further argued that the fines were unlawful because they are based on a legal provision that lacks clarity. The provision at issue, Article 14(2) of the Regulation, permits the imposition of fines for infringements committed intentionally or negligently. The Advocate General responded to this claim by reiterating that “the condition of negligence is satisfied where the undertaking concerned cannot be unaware of the nature of its conduct, irrespective of its awareness that it is infringing EU rules,” and the lack of factually similar precedent does not mean that the provision cannot be applied. Finally, Altice argued that the contested decision lacked transparency in the manner of calculating the fines. The Advocate General responded in two ways – firstly, that deterrence, one purpose of the Regulation, may be well served by a degree of unforeseeability as to the level of fines, and secondly, that the General Court did not infringe upon the principle of proportionality when setting the fine amounts.
Having disposed of all grounds for appeal, the Advocate General thus proposed that the court dismiss Altice’s appeal in its entirety, and require parties to bear their own costs.
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*Now called Altice Group Lux Sarl