2017:753 Marine Harvest ASA v Commission

 

Court General Court
Date of ruling 24 November 2017
Case name (short version)
Marine Harvest ASA v Commission
Case Citation Case T-704/14

ECLI:EU:T:2017:753

Key words Appeal — Competition — Concentrations — Decision imposing a fine for putting into effect a concentration prior to its notification and authorisation — Article 4(1), Article 7(1) and (2) and Article 14 of Regulation (EC) No 139/2004 — Negligence — Principle ne bis in idem — Gravity of the infringement — Amount of the fine

 

Basic context By their appeal, Marine Harvest ASA asks the Court to set aside the Decision C(2014) 5089 final of the EU Commission imposing a fine for putting into effect a concentration in breach of Article 4(1) and Article 7(1) of Regulation No 139/2004

 

Points arising – admissibility
Points arising – substance The first ground of appeal

48      According to Article 7(1) of that regulation, ‘a concentration with a Community dimension … 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)’.

51      In the present case, it must be noted at the outset that, by means of the December 2012 Acquisition, the applicant acquired an interest in Morpol that amounted to approximately 48.5% of Morpol’s share capital.

52      As the Commission noted in paragraph 55 of the Contested Decision, without being contradicted in that regard by the applicant, at the time of the December 2012 Acquisition, Morpol was a Norwegian public limited company and, as such, the voting rights were allocated according to the ‘one share carries one vote’ principle. A simple majority of the shares present and voting at shareholder meetings was therefore sufficient to carry a motion, apart from certain procedures that required a qualified majority of two thirds.

53      The Commission also correctly stated, in paragraph 57 of the Contested Decision, that a minority shareholder may be deemed to have sole control on a de facto basis, particularly where the shareholder is highly likely to achieve a majority at the shareholders’ meetings, taking account of the size of its shareholding and the level of attendance of other shareholders at shareholders’ meetings in preceding years (see, to that effect, judgment of 12 December 2012, Electrabel v Commission, T‑332/09, EU:T:2012:672, paragraphs 45 to 48).

54      Next, the Commission stated that Mr M. (through Friendmall and Bazmonta Holding) always accounted for a clear majority of votes cast at shareholders’ meetings and that the remainder of the capital in Morpol was significantly dispersed, which implied that the remaining shareholders would not have been able to form a blocking minority capable of overcoming Mr M.’s power of decision, not least due to the low number of them attending the general meetings.

55      The Commission therefore concluded, without being contradicted in that regard by the applicant, that Mr M. exercised sole de facto control over Morpol through its interests in Friendmall and Bazmonta Holding before the December 2012 Acquisition.

56      Lastly, the Commission concluded, correctly, that the December 2012 Acquisition had conferred on the applicant the same rights and possibilities of exercising decisive influence over Morpol as those previously enjoyed by Mr M. through Friendmall and Bazmonta Holding.

57      It follows from the foregoing that the Commission correctly found, in paragraph 68 of the Contested Decision, that the applicant had acquired control over Morpol after the closing of the December 2012 Acquisition.

58      The applicant repeatedly states, albeit in other contexts, that it did not exercise its voting rights before the concentration was cleared by the Commission. In that regard it must be noted that, according to Article 3(2) of Regulation No 139/2004, control is to be constituted, inter alia, by rights which confer the ‘possibility’ of exercising decisive influence on an undertaking. The decisive event is therefore the acquisition of that control in the formal sense and not the actual exercise of such control (see, by analogy, judgment of 12 December 2012, Electrabel v Commission, T‑332/09, EU:T:2012:672, paragraph 189). The fact that the holding of voting rights conferred on the applicant de facto control over Morpol is not called in question by the fact that the applicant did not exercise its voting rights prior to clearance of the concentration.

59      As the Commission stated in paragraphs 72 and 73 of the Contested Decision, some clauses of the SPA seemed to imply that the applicant would exercise its voting rights in Morpol only after having obtained clearance from competition authorities. However, there is nothing in the SPA that prevents the applicant from exercising its voting rights pending clearance. The applicant would, therefore, have been free to exercise its voting rights in Morpol at any time after the closing of the December 2012 Acquisition.

66      Article 7(2) of Regulation No 139/2004 thus envisages two possible situations: one linked to a public bid (first situation), the other linked to a series of transactions in securities (second situation).

68      It will be recalled that, according to the first situation as outlined in Article 7(2) of Regulation No 139/2004, ‘paragraph 1 shall not prevent the implementation of a public bid’, provided that the concentration is notified without delay and the acquirer does not exercise its voting rights prior to clearance of the concentration.

72      It must therefore be held that, according to the wording in respect of the first situation envisaged in Article 7(2) of Regulation No 139/2004, that situation does not apply in the present case.

74      In the second situation envisaged in Article 7(2) of Regulation No 139/2004, ‘paragraph 1 shall not prevent the implementation … 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 certain conditions are fulfilled.

75      It must be noted that, in the present case, the applicant acquired control of Morpol from one seller by means of a single transaction in securities, that is the December 2012 Acquisition, as the Commission pointed out in paragraph 101 of the Contested Decision.

76      Given that Mr M. controlled Friendmall and Bazmonta Holding at that time, Mr M. was the sole seller of Morpol shares.

77      The applicant submitted at the hearing that, in its decision of 26 February 2007 (Case COMP/M.4521 — LGI/Telenet) (‘the LGI/Telenet decision’), the Commission had not queried who ultimately controlled the entities which had sold the shares in Telenet. According to the applicant, those entities — intercommunales (associations of local authorities) — were actually controlled by the Flemish Region. The applicant submitted that, in the present case, the Commission had relied on the fact that Friendmall and Bazmonta Holding were both controlled by Mr M. and therefore the applicant had not, according to the Commission, acquired control from various sellers, yet the Commission had not raised the same question in the case that gave rise to the LGI/Telenet decision.

78      In the first place, it must be noted that the Court is not bound by the Commission’s previous practice in taking decisions. In the second place, it is apparent from the table showing participation in general shareholders’ meetings, in paragraph 59 of the Contested Decision, that Friendmall by itself held a clear majority of votes in all those general meetings. The applicant thus acquired sole de facto control of Morpol just through the acquisition of only the shares that belonged to Friendmall. In addition, as the Commission found in paragraph 63 of the Contested Decision, the applicant acknowledged, in reply to the Commission’s request for information of 12 February 2013, that, on the basis of the shares represented in the annual and extraordinary general meetings, Morpol was solely controlled by Friendmall. It is not necessary, therefore, to analyse in detail, in that context, the facts underlying the LGI/Telenet decision (see paragraph 77 above).

79      As the Commission noted, in paragraph 66 of the Contested Decision, the December 2012 Acquisition was closed on 18 December 2012.

80      The public offer was not submitted until 15 January 2013, by which time the applicant already had sole de facto control over Morpol.

81      While it is true that the complete takeover of Morpol by the applicant took place in several stages and involved various sellers, control was acquired by means of a single transaction and from just one seller. Control was not, therefore, acquired either from various sellers or by means of a series of transactions.

82      It follows from this that, according to the wording in respect of the second situation envisaged in Article 7(2) of Regulation No 139/2004, that situation also does not apply in the present case.

108    It should be noted that the first sentence of paragraph 45 of the Consolidated Jurisdictional Notice is worded as follows:

‘A single concentration may therefore exist if the same purchaser(s) acquire control of a single business, i.e. a single economic entity, via several legal transactions if those are inter-conditional’ (emphasis added).

109    That paragraph relates, as its title indicates, to the ‘acquisition of a single business’ (that is to say, the first situation as defined in paragraph 95 above). According to paragraph 45 of the Consolidated Jurisdictional Notice, in order for it to be possible for a single concentration to exist in the first situation, control must be acquired via several legal transactions. However, in the present case, control was acquired via the December 2012 Acquisition only, and that acquisition was closed before the launch of the public offer for the outstanding shares of Morpol.

128    The applicant’s argument, put forward at the hearing, that it is apparent from paragraph 104 of the judgment of 23 February 2006, Cementbouw Handel & Industrie v Commission (T‑282/02, EU:T:2006:64) that the issue is whether control is acquired at the end of a series of transactions, regardless of when that control is acquired, must be rejected. It must be pointed out in that regard that paragraph 104 of that judgment mentions not the acquisition of the target undertaking which may proceed in one or more stages, but the acquisition of control which may proceed in one or more stages. The relevant question is not, therefore, when the acquisition of all the shares of a target undertaking took place but when the acquisition of control took place. It must be noted that where, as in the present case, the acquisition of de facto sole control of a single target undertaking took place by means of an initial transaction alone, subsequent transactions by which the acquirer obtains additional shares in that undertaking are no longer relevant for the purpose of acquiring control and thus of implementing the concentration.

161    In any event, the national law of a Member State or its previous practice in taking decisions cannot bind the Commission or the Courts of the European Union. According to the case-law, the EU legal order does not, in principle, aim to define concepts on the basis of one or more national legal systems unless there is express provision to that effect (see judgment of 22 May 2003, Commission v Germany, C‑103/01, EU:C:2003:301, paragraph 33 and the case-law cited).

186    The effect of following the applicant’s reasoning, according to which the acquisition of control by means of a single private transaction followed by a mandatory public offer constitutes a single concentration, would be that, in the case of concentrations involving listed companies located in Member States, the private acquisition of securities conferring control would always be covered by the exception provided for in Article 7(2) of Regulation No 139/2004. There is always an obligation to submit a public bid which, according to the applicant’s reasoning, is part of a single concentration encompassing the purchase conferring control as well as the public offer. The effect of that would be to overextend the scope of application of the exception provided for in Article 7(2) of Regulation No 139/2004.

215    The applicant submits however that, should Article 7(2) of Regulation No 139/2004 not be applicable, the offeror would have to postpone the public bid until he receives the Commission’s merger clearance, when the floor price may have increased as a result of the quoted market price exceeding the price agreed in the SPA. The floor price is thus prone to manipulation and inflation, potentially requiring the offeror to purchase the remaining shares at a price exceeding the SPA price, that is to say, the equitable price.

216    In that regard, it must be noted that there may, in principle, be a risk of upward manipulation of the share price. However, if the applicant had considered that there was such a risk in the present case, it could have asked the Commission to grant it a derogation under Article 7(3) of Regulation No 139/2004. According to that provision, the Commission may, on request, grant a derogation from the obligations imposed in Article 7(1) and (2) of Regulation No 139/2004.

217    The Commission states in that regard that it has previously granted derogations under Article 7(3) of Regulation No 139/2004 precisely in situations where a delay in launching a public bid could have resulted in market manipulation. It presents as an example its decision of 20 January 2005 (Case COMP/M.3709 — Orkla/Elkem) (‘the Orkla/Elkem decision’), taken pursuant to Article 7(3) of Regulation No 139/2004. In the case that gave rise to that decision, Orkla, which already held 39.85% of Elkem’s shares, entered into individual agreements with three other Elkem shareholders. Pursuant to those agreements, Orkla was to acquire sole control of Elkem. Implementation of the transaction would have obliged Orkla to make a mandatory public offer for Elkem’s remaining shares under Norwegian law.

218    Prior to implementing each of those agreements, Orkla applied to the Commission for a derogation pursuant to Article 7(3) of Regulation No 139/2004. It emphasised that, due to the very limited free float of Elkem shares, it would not be very difficult to push the market price of those shares to a higher level. Within six days of receiving Orkla’s request, the Commission granted a derogation, stating that ‘the suspension of the operation may have the effect on Orkla that, when complying [with] the applicable Norwegian securities legislation, Orkla would incur a considerable risk [of having] to make an offer for the outstanding shares in Elkem for a considerably higher price after the operation has been declared compatible with the [internal] market’. The Commission conducted a balancing exercise in respect of the interests and noted that the suspension obligation could seriously affect the financial interests of Orkla, the transaction did not seem to pose a threat to competition and a derogation did not affect any legitimate right of any third party.

219    The case that gave rise to the Orkla/Elkem decision shows, therefore, that the possibility of applying for derogations under Article 7(3) of Regulation No 139/2004 represents an efficient means of responding to situations in which there is a risk of share price manipulation.

220    The applicant submits, in essence, that the (theoretical) existence of risks of upward share price manipulation obliges the Commission to interpret Article 7(2) of Regulation No 139/2004 broadly. However, that argument must be rejected, as Article 7(3) of Regulation No 139/2004 enables a satisfactory response to be given in situations in which there is such a risk.

221    Article 7(3) of Regulation No 139/2004 provides for the possibility that the Commission may derogate from the obligation of suspension in a particular case, after weighing the interests at issue. Such a derogation in a particular case is a more appropriate tool for responding to any risks of manipulation that may exist than a broad application of Article 7(2) of Regulation No 139/2004, which would involve the exception being applied automatically without any opportunity for a weighing-up of interests.

222    At the hearing, the applicant submitted that, in the Orkla/Elkem decision, the Commission recognised the need for speed and the need to avoid market manipulation in circumstances similar to those of the present case.

223    However, the fact that, in that case, the Commission took into account the need for speed and the need to avoid market manipulation in granting a derogation pursuant to Article 7(3) of Regulation No 139/2004 does not mean that Article 7(2) of Regulation No 139/2004 must be interpreted broadly.

229    In the light of the foregoing, the Court must reject the applicant’s argument that the December 2012 Acquisition and the public offer constituted a single concentration. The concept of a single concentration is not intended to apply in a situation in which sole de facto control of the only target company is acquired from one seller by means of a single initial private transaction, even where it is followed by a mandatory public offer.

 

The second ground of appeal

236    It must be noted that, according to Article 14(2) of Regulation No 139/2004, the Commission may impose fines only for infringements which have been committed ‘either intentionally or negligently’.

237    In relation to the question whether an infringement has been committed intentionally or negligently, it follows from the case-law that that condition is satisfied where the undertaking concerned cannot be unaware of the anticompetitive nature of its conduct, whether or not it is aware that it is infringing the competition rules (see, with regard to infringements liable to be punished by a fine in accordance with the first subparagraph of Article 23(2) of 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), judgment of 18 June 2013, Schenker & Co. and Others, C‑681/11, EU:C:2013:404, paragraph 37 and the case-law cited).

238    The fact that the undertaking concerned has characterised wrongly in law its conduct upon which the finding of the infringement is based cannot have the effect of exempting it from imposition of a fine in so far as it could not be unaware of the anticompetitive nature of that conduct (see, by analogy, judgment of 18 June 2013, Schenker & Co. and Others, C‑681/11, EU:C:2013:404, paragraph 38). An undertaking may not escape imposition of a fine where the infringement of the competition rules has resulted from that undertaking erring as to the lawfulness of its conduct on account of the terms of legal advice given by a lawyer (see, by analogy, judgment of 18 June 2013, Schenker & Co. and Others, C‑681/11, EU:C:2013:404, paragraph 43).

255    However, a notice was published in the Official Journal of the European Union (OJ 2007 C 245, p. 7) in all official languages including an internet link giving access to the full decision in English. The Commission also states, correctly, that the Yara/Kemira GrowHow decision, and in particular the interpretation of Article 7(2) of Regulation No 139/2004 in that decision, has been quoted in practitioners’ works. A diligent operator could therefore have been aware of that decision and of the Commission’s interpretation of Article 7(2) of Regulation No 139/2004.

257    The Commission was also entitled to take into consideration, as it did in paragraph 144 of the Contested Decision, the fact that the applicant was a large European company with significant experience in merger proceedings and notification to the Commission and national competition authorities. Thus, it is apparent from paragraph 252 of the judgment of 12 December 2012, Electrabel v Commission (T‑332/09, EU:T:2012:672) that the experience of an undertaking in the field of concentrations and in notification procedures is a relevant factor in assessing negligence.

258    The Commission was also entitled to take into consideration, as it did in paragraph 148 of the Contested Decision, the fact that the applicant (at that time, Pan Fish) had already been fined at national level for the early implementation of a concentration in the context of its acquisition of the company Fjord Seafood. It is true that the decision of the French Minister for the Economy of 8 December 2007 (Pan Fish/Fjord Seafood case) (‘the Pan Fish/Fjord Seafood decision’) did not concern the interpretation of Article 7(2) of Regulation No 139/2004. Nevertheless, particular diligence must be expected of a large European company which has already been fined, albeit at national level, for the early implementation of a concentration.

259    In the present case, it must be held that the applicant acted negligently by interpreting Article 7(2) of Regulation No 139/2004 in a way that is covered neither by its wording nor by the Commission’s previous practice in taking decisions or the case-law of the Courts of the European Union, and which is not consistent with what the Commission found, albeit in an obiter dictum, in the Yara/Kemira GrowHow decision, and by doing so without first contacting the Commission in order to determine whether its interpretation was correct. In so doing, the applicant acted at its own risk and cannot legitimately rely on the allegedly ‘reasonable’ nature of its interpretation.

The third ground of appeal

300    As regards the penalties provided for, it must be noted that, according to Article 14(1)(a) of Regulation No 4064/89, a failure to notify in accordance with Article 4 of that regulation was punishable by fines ranging from ECU 1 000 to 50 000 only. Putting into effect a concentration in breach of Article 7(1) of Regulation No 4064/89 was, under Article 14(2)(b) of that regulation, punishable by fines not exceeding 10% of the aggregate turnover of the undertakings concerned.

301    By contrast, in Regulation No 139/2004, breach of the notification obligation provided for in Article 4 is no longer referred to in Article 14(1) but in Article 14(2) of that regulation, which means that the scale of fines for infringement of Article 4(1) and the scale of fines for infringement of Article 7(1) of that regulation are now the same, and fines not exceeding 10% of the aggregate turnover of the undertaking concerned may be imposed.

303    It follows that when an undertaking infringes Article 4(1) of Regulation No 139/2004, an infringement of Article 7(1) of Regulation No 139/2004 is triggered automatically. At the point at which the concentration is put into effect, the undertaking concerned infringes the obligation to notify the concentration prior to its implementation laid down in Article 4(1) of Regulation No 139/2004, and the corresponding prohibition against implementing a concentration before notification, provided for in the first situation in Article 7(1) of Regulation No 139/2004. At the same time, it infringes the prohibition against implementing a concentration before its authorisation, as provided for in the second situation in Article 7(1) of Regulation No 139/2004, because a concentration which has not been notified cannot be declared compatible with the internal market.

307    According to settled case-law, the principle ne bis in idem 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 (see judgment of 14 February 2012, Toshiba Corporation and Others, C‑17/10, EU:C:2012:72, paragraph 94 and the case-law cited).

308    The Court has held, in competition law cases, that 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 (see judgment of 14 February 2012, Toshiba Corporation and Others, C‑17/10, EU:C:2012:72, paragraph 97 and the case-law cited).

309    It is apparent from the case-law cited in paragraph 307 above that the principle ne bis in idem has two elements. It precludes ‘proceedings being brought’ against an undertaking afresh and that undertaking ‘being found liable’ afresh. However, according to the wording set out in paragraph 307 above, the two elements presuppose that the undertaking in question has been penalised or declared not liable ‘by an earlier decision that can no longer be challenged’.

315    The wording of those provisions does not therefore cover situations in which an authority imposes two penalties in a single decision, as is the case here.

319    It must be held that the principle ne bis in idem does not apply in the present case, as the penalties were imposed by the same authority in a single decision.

344    In the light of all of the foregoing, the principle ne bis in idem and the set off principle do not apply to a situation in which several penalties are imposed in a single decision, even if those penalties are imposed for the same actions. In fact, where the same conduct infringes several provisions punishable by fines, the question whether several fines may be imposed in a single decision falls not within the scope of the principle ne bis in idem but within the scope of the principles governing concurrent offences (see, in regard to the problems associated with concurrent offences, paragraphs 345 to 373 below).

348    It must be noted that, in EU competition law, there are no specific rules concerning concurrent offences. It is appropriate, therefore, to examine the applicant’s arguments in relation to principles of international law and the legal orders of the Member States.

349    It will be recalled that, according to the applicant’s reasoning (see paragraph 345 above), the ‘primarily applicable provision’ excludes all others.

350    The Commission correctly contends in that regard that the legislature has not defined one offence as being more serious than the other, both of them being subject to the same cap under Article 14(2)(a) and (b) of Regulation No 139/2004. It is not appropriate, therefore, to regard one of those provisions as being ‘primarily applicable’.

351    With regard to the applicant’s argument that the infringement of Article 4(1) is the more specific offence which subsumes the infringement of Article 7(1) of Regulation No 139/2004, the following should also be noted.

352    It must be borne in mind that an infringement of Article 4(1) of Regulation No 139/2004 is an instantaneous infringement, whereas an infringement of Article 7(1) of Regulation No 139/2004 is a continuous infringement which is triggered when the infringement of Article 4(1) of Regulation No 139/2004 is committed (see paragraph 304 above).

353    Furthermore, it must be noted that, according to Article 1(1)(a) of Council Regulation (EEC) No 2988/74 of 26 November 1974 concerning limitation periods in proceedings and the enforcement of sanctions under the rules of the European Economic Community relating to transport and competition (OJ 1974 L 319, p. 1), the limitation period is three years in the case of infringements of provisions concerning notifications of undertakings. It follows from this that the limitation period is three years for infringements of Article 4(1) of Regulation No 139/2004. By contrast, infringements of Article 7(1) of Regulation No 139/2004 are, in accordance with Article 1(1)(b) of Regulation No 2988/74, subject to a limitation period of five years (see, by analogy, judgment of 12 December 2012, Electrabel v Commission, T‑332/09, EU:T:2012:672, paragraph 209).

354    To follow the applicant’s reasoning would mean that an undertaking which infringes both the notification obligation and the prohibition against implementing a concentration prior to clearance is in a more favourable position than an undertaking which infringes only the prohibition against implementing a concentration prior to clearance.

355    An undertaking which notifies a concentration prior to implementing it, but which implements it before having obtained clearance, is liable to be fined under Article 14(2)(b) of Regulation No 139/2004, read in conjunction with Article 7(1) thereof. It can therefore be penalised for a continuous infringement, which lasts for so long as the transaction is not declared compatible with the internal market by the Commission, and which is subject to a limitation period of five years.

356    If that same undertaking had not even notified the concentration prior to implementing it, the Commission could, according to the applicant’s reasoning, only impose a fine under Article 14(2)(a) of Regulation No 139/2004, read in conjunction with Article 4(1) thereof. The undertaking could therefore be penalised only for an instantaneous infringement, which is subject to a limitation period of three years. That would mean that an undertaking would be put at an advantage by infringing not only the prohibition against implementing a concentration prior to clearance but also the obligation to notify it.

357    It cannot, however, be accepted that Regulation No 139/2004 should be interpreted in such a way as to lead to such an absurd outcome.

358    The applicant’s argument that the infringement of Article 4(1) of Regulation No 139/2004 is the more specific offence which subsumes the infringement of Article 7(1) of Regulation No 139/2004 cannot succeed, therefore.

359    That outcome is not affected by the arguments put forward by the applicant at the hearing to challenge the fact that infringements of Article 4(1) of Regulation No 139/2004 are subject to a limitation period of only three years. According to the very clear wording of Article 1(1)(a) of Regulation No 2988/74, the limitation period is three years in the case of infringements of provisions concerning notifications of undertakings.

360    The fact, emphasised by the applicant, that the legislature increased the cap on fines laid down for infringement of the notification obligation, by providing, in Article 14(2) of Regulation No 139/2004, for a cap of 10% of the aggregate turnover of the undertaking concerned, as against the cap of ECU 50 000 provided for in Article 14(1)(a) of Regulation No 4064/89 (see paragraph 300 above), cannot modify the limitation period, which is still governed by Article 1(1)(a) of Regulation No 2988/74.

361    In any event, even if the limitation period for infringement of Article 4(1) of Regulation No 139/2004 and the limitation period for infringement of Article 7(1) of that regulation were the same, that would not alter the fact — which, moreover, is not disputed by the applicant — that an infringement of Article 4(1) of Regulation No 139/2004 is an instantaneous infringement, whereas an infringement of Article 7(1) of that regulation is a continuous infringement. Even in that situation, regarding the infringement of Article 4(1) of Regulation No 139/2004 as the more specific infringement which subsumes the infringement of Article 7(1) of that regulation would therefore result in an undertaking being put at an advantage by infringing not only the prohibition against implementing a concentration prior to clearance but also the obligation to notify it. To follow the applicant’s reasoning would mean that an undertaking which infringes only the prohibition against implementing a concentration before having obtained clearance could be penalised for a continuous infringement, which lasts for so long as the transaction is not declared compatible with the internal market, whereas an undertaking which also infringes the obligation to notify the concentration before its implementation could only be penalised for an instantaneous infringement. The latter undertaking would therefore be in a more favourable position than the former, first, as regards the duration of the infringement and, second, as regards the point at which the limitation period starts to run. The applicant’s argument cannot therefore be accepted.

362    Accordingly, it must be held that the Commission correctly penalised the applicant for infringement of both provisions.

363    That approach is not called in question by the other arguments put forward by the applicant.

364    The applicant asserts that ‘the international courts’ settled case-law … forbids the double punishment of a person for violating a provision that cannot be violated without violating another provision’. It cites, in that respect, judgments of the International Criminal Tribunal for the former Yugoslavia (‘ICTY’) and of the International Criminal Tribunal for Rwanda.

365    The applicant relies, in particular, on the judgment of the ICTY, Prosecutor v. Vidoje Blagojević & Dragan Jokić, Case No IT‑02-60-T, 17 January 2005, paragraph 799, which states as follows:

‘[M]ultiple convictions entered under different statutory provisions, but based on the same conduct, are permissible only if each statutory provision has a materially distinct element not contained within the other. … The more specific offence subsumes the less specific one, because the commission of the former necessarily entails the commission of the latter’.

366    It is apparent from the judgment of the ICTY, Prosecutor v. Dragoljub Kunarac, Radomir Kovač and Zoran Vuković, Case No IT‑96-23 & IT‑96-23/1-A, 12 June 2002, paragraph 168, that that approach is one that is heavily indebted to the judgment of the Supreme Court of the United States in Blockburgerv.United States, 284 U.S. 299 (1932).

367    It should also be noted that, in the judgment Alfred Musema v. Prosecutor, Case No ICTR-96-13-A, 16 November 2001, paragraph 360, the International Criminal Tribunal for Rwanda found that national approaches to the issue of multiple convictions based on the same facts varied.

368    It must be stated that the fact that the ICTY applies a certain examination criterion, derived from United States law, for the purposes of its judgments imposing criminal sanctions, in no way implies that the Commission or the Courts of the European Union are obliged to apply the same criterion. It should be pointed out that the ICTY does not examine whether decisions taken or judgments delivered at a national level are compatible with fundamental rights. It confines itself to setting out, for the purposes of the criminal sanctions which it imposes itself, the principles it applies where the same action breaches several penal provisions. The ICTY has therefore merely determined, for the purposes of its own judgments, the approach it considers the most appropriate. That does not mean that the ICTY has set out a general principle of international law which all States and the European Union must observe. The same applies to the case-law of the International Criminal Tribunal for Rwanda.

369    The applicant’s arguments based on the case-law of the ICTY and of the International Criminal Tribunal for Rwanda must therefore be rejected.

370    The applicant further states that the very purpose of the principle ne bis in idem is ‘to prevent cumulative punishment for conduct that, as here, concurrently breaches distinct legal provisions’.

371    It should be borne in mind in that regard that the issue is not one that falls within the scope of the principle ne bis in idem. In addition, the rules on concurrent offences do not in general terms preclude an undertaking from being penalised for an infringement of several distinct legal provisions, even if those provisions have been infringed by virtue of the same conduct.

372    The applicant merely refers to the principle of ‘apparent concurrence’ or ‘false concurrence’, which means that where one act appears to be caught by two statutory provisions, the primarily applicable provision excludes all others (see paragraph 345 above). The application of that principle presupposes however that there is a ‘primarily applicable provision’. If no such provision exists, as is the case here, the simultaneous infringement of distinct legal provisions constitutes a notional concurrence.

373    Given that, in the present case, there is no primarily applicable provision, the applicant’s arguments must be rejected.

374    It follows from all of the foregoing that the Court must reject the third plea in law.

The fourth ground of appeal

377    It should be borne in mind, first of all, that, according to the case-law, the principle of the legality of offences and penalties (nullum crimen, nulla poena sine lege) requires the law to give a clear definition of offences and the penalties which they attract. That requirement is satisfied where the individual concerned is in a position to ascertain from the wording of the relevant provision and, if need be, with the assistance of the courts’ interpretation of it, what acts and omissions will make him criminally liable (see judgment of 22 October 2015, AC-Treuhand v Commission, C‑194/14 P, EU:C:2015:717, paragraph 40 and the case-law cited).

378    Likewise it is clear from the case-law that the principle of legality must be observed in relation to provisions of a criminal nature as well as specific administrative instruments imposing or permitting the imposition of administrative penalties, and that it applies not only to provisions establishing the elements which constitute an offence, but also to those specifying the consequences arising from an offence (see judgment of 27 September 2006, Jungbunzlauer v Commission, T‑43/02, EU:T:2006:270, paragraph 72 and the case-law cited).

379    In the present case, it should be noted that the applicant was fined, in accordance with Article 14(2)(a) and (b) of Regulation No 139/2004, for having infringed Article 4(1) and Article 7(1) of Regulation No 139/2004 (see paragraph 199 above). The wording of those provisions is clear. None of those provisions contains broad notions or vague criteria.

380    The applicant relies, in essence, on a lack of clarity in Article 7(2) of Regulation No 139/2004, which provides for an exception.

381    It should be noted in that regard that even on the assumption that the requirement of clarity that flows from the principle of legality of penalties applies to provisions laying down an exception to a prohibition the infringement of which is punishable by fines, Article 7(2) of Regulation No 139/2004 is not, according to its wording, applicable to situations such as that at issue here (see paragraphs 68 to 83 above).

382    The applicant was thus in a position to ascertain from the wording of the relevant provisions that the implementation of the December 2012 Acquisition without prior notification and authorisation was punishable by fines.

383    Given that the applicant was in a position to ascertain this from the wording of the relevant provisions, it was not necessary for them to have been interpreted by the courts. As expressed in paragraph 377 above, the individual concerned must be in a position to ascertain from the wording of the relevant provision and, ‘if need be’, with the assistance of the courts’ interpretation of it, what acts and omissions will make him criminally liable.

384    It is true that the obiter dictum in the Yara/Kemira GrowHow decision does not amount to an interpretation by the courts, much less to ‘settled and published case-law’. In that respect it should be noted that, apart from the text of the law itself, account must be taken of whether the indeterminate concepts used have been defined by consistent and published case-law (see judgment of 28 April 2010, Amann & Söhne and Cousin Filterie v Commission, T‑446/05, EU:T:2010:165, paragraph 129 and the case-law cited).

385    However, the applicant’s arguments in that respect are ineffective, as definition by case-law is unnecessary where the wording of the provisions at issue is clear and does not include indeterminate concepts that require definition.

386    It should be recalled in that context that the applicant is endeavouring, in essence, to expand the scope of application of the concept of ‘single concentration’, and thereby to expand the scope of application of the exception provided for in Article 7(2) of Regulation No 139/2004 (see paragraph 203 above).

387    The principle of legality of offences and penalties does not mean that it is necessary to give a broad interpretation to the scope of application of a concept which is not included in the wording of a provision establishing an exception to a prohibition the infringement of which is punishable by fines, so as to expand the scope of that exception beyond its wording.

388    The existence of an infringement and the imposition of fines were foreseeable by the applicant. It should be borne in mind that the negligence in the applicant’s conduct has already been established in the context of the examination of the second plea.

389    Furthermore, the mere fact that, at the time when an infringement is committed, the Courts of the European Union have not yet had the opportunity to rule specifically on particular conduct does not preclude, as such, the possibility that an undertaking may have to expect its conduct to be declared incompatible with the EU competition rules (see, to that effect, judgment of 22 October 2015, AC‑Treuhand v Commission, C‑194/14 P, EU:C:2015:717, paragraph 43).

390    It is also apparent from the case-law of the ECtHR that the novelty, in the light in particular of the case-law, of the legal question raised does not in itself constitute a breach of the requirements of accessibility and foreseeability of the law, in so far as the approach taken was among the possible and reasonably foreseeable interpretations (ECtHR, 1 September 2016, X and Y v. France, CE:ECHR:2016:0901JUD004815811). It is apparent, moreover, from paragraph 60 of that judgment, that even where the structure of the provisions at issue in a particular case may present a serious difficulty in terms of interpretation, that does not mean that it is impossible for the competent authority to characterise in law the offences committed in a particular case.

391    The applicant’s argument that the Commission’s approach in the present case was inconsistent with the approach it took in the case giving rise to the LGI/Telenet decision has already been rejected in paragraphs 141 to 144 above.

392    As regards the applicant’s assertion that, in the absence of relevant precedents, the longstanding practice of the Courts of the European Union and of the Commission has been to refrain from imposing any fine or to impose only a symbolic fine, it must be stated that there is no established practice in that sense. Admittedly, there are cases in which the Commission did not impose any fine or imposed a symbolic fine in the absence of precedents. However, in other cases, the Commission has imposed large fines even in situations in which there were no precedents in relation to conduct with the same features.

393    It is apparent from the case-law that the fact that conduct with the same features has not been examined in past decisions does not exonerate an undertaking (judgments of 9 November 1983, Nederlandsche Banden-Industrie-Michelin v Commission, 322/81, EU:C:1983:313, paragraph 107, and of 1 July 2010, AstraZeneca v Commission, T‑321/05, EU:T:2010:266, paragraph 901). In the cases giving rise to those judgments, the Commission imposed fines in an amount that was not symbolic.

394    The first part of the fourth plea in law must therefore be rejected.

398    In that regard, it should be noted that the fact that the Commission has not imposed a fine on the perpetrator of a breach of the competition rules cannot in itself prevent a fine from being imposed on the perpetrator of a similar infringement (judgment of 28 February 2002, Compagnie générale maritime and Others v Commission, T‑86/95, EU:T:2002:50, paragraph 487). In addition, where an undertaking has acted in breach of the competition rules, it cannot escape being penalised altogether on the ground that other undertakings have not been fined, where, as in this case, those undertakings’ circumstances are not the subject of proceedings before the Court (see, to that effect, judgment of 11 July 2014, Sasol and Others v Commission, T‑541/08, EU:T:2014:628, paragraph 194).

407    It must be held that the principle of equal treatment, in relation to an undertaking on which no fine was imposed in a previous decision for the same type of conduct, can, in principle, properly be relied on only by operators who have not had an opportunity to take into consideration the clarification provided in that previous decision in order to prevent infringements of the competition rules, because that decision was adopted when the infringement had already been committed.

The fifth ground of appeal

447    As regards fines imposed under Article 14 of Regulation No 139/2004, it should be noted that, according to paragraph 3 of that article, ‘in fixing the amount of the fine, regard shall be had to the nature, gravity and duration of the infringement’.

449    Furthermore, it must be noted that the Commission has not adopted guidelines setting out the method of calculation that it must follow when setting the amount of a fine under Article 14 of Regulation No 139/2004, which, moreover, the applicant acknowledges.

450    In the absence of such guidelines, the framework of the Commission’s analysis must be that set out in Article 14(3) of Regulation No 139/2004 (see, by analogy, judgment of 12 December 2012, Electrabel v Commission, T‑332/09, EU:T:2012:672, paragraph 228). However, it is required to reveal clearly and unequivocally in the contested decision the elements which it took into account in setting the amount of the fine (judgment of 12 December 2012, Electrabel v Commission, T‑332/09, EU:T:2012:672, paragraph 228).

455    In that regard, it must be noted that, where the Commission has not adopted any guidelines setting out the method of calculation which it is required to follow when setting fines under a particular provision and the Commission’s reasoning is disclosed in a clear and unequivocal fashion in the contested decision, the Commission is not required to express in figures, in absolute terms or as a percentage, the basic amount of the fine and any aggravating or mitigating circumstances (judgments of 15 December 2010, E.ON Energie v Commission, T‑141/08, EU:T:2010:516, paragraph 284, and of 26 November 2014, Energetický a průmyslový and EP Investment Advisors v Commission, T‑272/12, EU:T:2014:995, paragraph 101).

468    Furthermore, even if the argument put forward in paragraph 104 of the application had to be interpreted, contrary to the statement made by the applicant at the hearing, as meaning that the applicant is also relying on a substantive error, in that the Commission failed to take into consideration the lack of any profit from the infringement, that argument would have to be rejected as unfounded.

469    It is apparent from the case-law that no binding or exhaustive list of the criteria which must be applied when assessing the gravity of the infringement has been drawn up (see, as regards infringements of Article 101 TFEU, judgment of 17 July 1997, Ferriere Nord v Commission, C‑219/95 P, EU:C:1997:375, paragraph 33, and, as regards infringements of Article 102 TFEU, judgment of 19 April 2012, Tomra Systems and Others v Commission, C‑549/10 P, EU:C:2012:221, paragraph 107).

470    In particular, there is no obligation for the Commission to examine whether an applicant has derived a profit from an infringement of Article 4(1) and Article 7(1) of Regulation No 139/2004. In that context, it should be noted that that is not a constituent element of an infringement of Article 4(1) or Article 7(1) of Regulation No 139/2004, and it is not always possible to determine whether an applicant has or has not derived any profit from implementing a concentration prior to its notification and clearance, let alone quantify that profit.

471    The applicant cites a number of judgments to support its assertion that the fine must be determined by taking into account, among other, the profit gained from the alleged infringement. It should be noted that the case-law cited by the applicant in that context concerns cases relating to infringements of Article 101 TFEU (judgments of 7 June 1983, Musique Diffusion française and Others v Commission, 100/80 to 103/80, EU:C:1983:158, paragraph 129; of 28 June 2005, Dansk Rørindustri and Others v Commission, C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraph 242; of 3 September 2009, Prym and Prym Consumer v Commission, C‑534/07 P, EU:C:2009:505, paragraph 96; and of 8 December 2011, Chalkor v Commission, C‑386/10 P, EU:C:2011:815, paragraph 56) or Article 102 TFEU (Opinion of Advocate General Wathelet in Telefónica and Telefónica de España v Commission, C‑295/12 P, EU:C:2013:619, point 117).

472    Only the Opinion of Advocate General Bot in E.ON Energie v Commission (C‑89/11 P, EU:C:2012:375), which the applicant cited in that context, concerned a different type of infringement, that of breaking a seal. It must be noted that the Court of Justice did not follow the Opinion of Advocate General Bot and dismissed the appeal in the judgment of 22 November 2012, E.ON Energie v Commission (C‑89/11 P, EU:C:2012:738), contrary to the Advocate General’s recommendation. Furthermore, it is not apparent from the Opinion of Advocate General Bot in that case that he considered the Commission to be obliged to examine the profit derived from the infringement in every case. He merely stated, in point 114 of his Opinion, that it was necessary to take into account all the elements of the case, ‘such as’, among other, the profit which the undertaking concerned derived from the infringement. He thus confined himself to listing examples of criteria that may be taken into consideration, while recalling, in point 113 of his Opinion, the case-law which states that no binding or exhaustive list of the criteria which must be applied has been drawn up.

473    It should, moreover, be pointed out that it is apparent from the case-law that, even in the context of an infringement of Article 101 TFEU, the fact that an undertaking did not benefit from an infringement cannot preclude the imposition of a fine since otherwise it would cease to have a deterrent effect (see judgment of 8 July 2008, BPB v Commission, T‑53/03, EU:T:2008:254, paragraph 441 and the case-law cited). The Commission is not required, in fixing the amount of fines, to take into consideration any lack of benefit from the infringement (see judgment of 29 November 2005, SNCZ v Commission, T‑52/02, EU:T:2005:429, paragraph 90 and the case-law cited). The Commission is not obliged to establish in every case, for the purpose of determining the amount of the fine, the financial advantage linked to the infringement found to have been committed. The absence of such an advantage cannot be regarded as an attenuating circumstance (see judgment of 8 July 2008, BPB v Commission, T‑53/03, EU:T:2008:254, paragraph 442 and the case-law cited).

474    Likewise, the Commission is not required to take into account, in fixing the amount of a fine, any lack of profit from the implementation of a concentration prior to its notification and clearance.

475    Assessment of the gains from the infringement may be relevant if the Commission bases itself precisely on such gains in order to assess the gravity of the infringement and/or to calculate the fine (judgment of 15 March 2000, Cimenteries CBR and Others v Commission, T‑25/95, T‑26/95, T‑30/95 to T‑32/95, T‑34/95 to T‑39/95, T‑42/95 to T‑46/95, T‑48/95, T‑50/95 to T‑65/95, T‑68/95 to T‑71/95, T‑87/95, T‑88/95, T‑103/95 and T‑104/95, EU:T:2000:77, paragraph 4882). However, that is not the position in the present case.

476    It should also be noted that, in order to substantiate the fact that it did not derive any benefit from the alleged infringement, the applicant relies, in paragraph 71 of the reply, in particular on the fact that it refrained from exercising its voting rights in Morpol pending clearance of the concentration. That element was taken into account by the Commission as a mitigating circumstance (paragraphs 196 and 198 of the Contested Decision).

477    It follows from the foregoing that the Commission neither infringed its obligation to state reasons nor made a substantive error by refraining from determining and taking into account the possible profit or lack of profit from the infringement.

497    That question must be answered in the affirmative. It would be inappropriate to treat the early implementation of concentrations which raise serious doubts as to their compatibility with the internal market, and the early implementation of concentrations which do not raise any competition concerns, in the same way.

499    In the case of concentrations which raise serious doubts as to their compatibility with the internal market, the possible competition risks associated with early implementation are not the same as in the case of concentrations which do not raise competition concerns.

500    The fact that a concentration raises serious doubts as to its compatibility with the internal market therefore makes the early implementation of that concentration more serious than the early implementation of a concentration which does not raise competition concerns, unless, notwithstanding the fact that it raises such serious doubts, the possibility that its implementation in the form initially envisaged and not cleared by the Commission may have had damaging effects on competition can be ruled out in a particular case.

523    It must be stated that, in the case of infringements of Article 4(1) and Article 7(1) of Regulation No 139/2004, the mere fact that damaging effects on competition are possible, because the concentration implemented in the form initially envisaged and not cleared by the Commission raised serious doubts as to its compatibility with the internal market, may be taken into account in assessing the gravity of the infringement, even if the Commission does not demonstrate a ‘reasonable probability’ that such effects exist.

524    Admittedly, where the existence of damaging effects on competition resulting from the implementation of a concentration in the form initially envisaged and not cleared by the Commission can be demonstrated, that is liable to render the infringement even more serious than an infringement falling within the scope of the ‘intermediate situation’. That does not prevent the mere fact that damaging effects on competition cannot be ruled out from rendering the infringement more serious than the early implementation of a concentration which does not raise any competition concerns.

543    The applicant submits that the statement in paragraph 160 of the Contested Decision, that ‘the Commission had already proceeded against other companies and imposed fines on them for breach of Article 7(1) of [Regulation No 4064/89]’, disregards the key issue that none of those cases concerned the scope of Article 7(2) of Regulation No 139/2004 or of Article 7(3) of Regulation No 4064/89.

544    It must be noted in that regard that, in paragraph 160 of the Contested Decision, the Commission stated that Regulation No 139/2004 had already been in force for more than 10 years and that similar provisions as regards the standstill obligation existed in Regulation No 4064/89, which had been in force for more than 13 years. It also observed that it had already proceeded against other companies and imposed fines on them for breach of Article 7(1) of Regulation No 4064/89, and that it had also adopted a number of other decisions on the basis of Article 14 of Regulation No 4064/89.

545    In so doing, the Commission, in essence, provided justification for the fact that it had no further reason to be ‘lenient’ in setting fines pursuant to Article 14 of Regulation No 139/2004.

546    It should be pointed out that the Commission may indeed choose to impose a small fine when applying for the first time(s) a provision under which it is entitled to impose a fine. However, the Commission is lawfully entitled to consider that it no longer has any reason to do so if it has already repeatedly imposed fines under that provision.

547    The applicant’s argument that the precedents did not concern Article 7(2) of Regulation No 139/2004 or Article 7(3) of Regulation No 4064/89 is, in that context, irrelevant. The existence of precedents, in which fines had been imposed on the basis of Article 14 of Regulation No 4064/89, served as a warning to the applicant that it ran the risk of being heavily fined if it infringed Article 4(1) and Article 7(1) of Regulation No 139/2004. The fact, in particular, that the Commission had already imposed a severe sanction, a fine of EUR 20 million, in the Electrabel decision, was liable to indicate to the applicant that it ran the risk of severe sanctions being imposed in the event of the early implementation of the concentration at issue.

554    First of all, it will be recalled that, in paragraphs 128 and 165 of the Contested Decision, the Commission noted that an infringement of Article 4(1) of Regulation No 139/2004 was an instantaneous infringement, and that that infringement had been committed in the present case on 18 December 2012, the date of closing of the December 2012 Acquisition.

555    The Commission also noted, in paragraphs 128 and 166 of the Contested Decision, that an infringement of Article 7(1) of Regulation No 139/2004 was a continuous infringement which remained ongoing for as long as the transaction was not declared compatible with the internal market by the Commission in accordance with Regulation No 139/2004. According to the Commission, in the present case, the infringement of Article 7(1) of Regulation No 139/2004 commenced on 18 December 2012 and came to an end on the date of the Clearance Decision, that is 30 September 2013.

556    The Commission therefore found that the infringement of Article 7(1) of Regulation No 139/2004 lasted for 9 months and 12 days. It found that that period could be considered particularly long, especially as regards a merger with potential anticompetitive effects.

557    Lastly, ‘in the exercise of its discretion’ the Commission considered ‘it justified to take into account for the purposes of calculating the duration of the infringement of Article 7(1) [of Regulation No 139/2004] the pre-notification period, as well as the extended Phase I investigation’. In the first place, the Commission noted in that regard that the proposed transaction had raised serious doubts in the possible market for Scottish salmon and that it could not be excluded that competitive harm had materialised. In those circumstances, according to the Commission, a fine had to achieve the maximum deterrence possible. In the second place, the Commission stated that the applicant had not been sufficiently forthcoming in the course of the pre-notification phase to justify the exclusion of that period from the overall duration of the infringement, for the reasons explained in more detail in paragraphs 174 to 194 of the Contested Decision.

558    The applicant does not dispute the fact that the infringement of Article 4(1) of Regulation No 139/2004 was an instantaneous infringement. The third part of the fifth plea in law concerns only the Commission’s assessment of the duration of the infringement of Article 7(1) of Regulation No 139/2004.

559    As regards the duration of the infringement of Article 7(1) of Regulation No 139/2004, it should be recalled that the Court held, in paragraph 212 of the judgment of 12 December 2012, Electrabel v Commission (T‑332/09, EU:T:2012:672), that ‘the ability to exercise decisive influence over the activity of the controlled undertaking necessarily exist[ed] in the period beginning on the date of acquisition of control and lasting until the end of control’ and that ‘the entity which [had] acquired control of the undertaking continue[d] to exercise such control in breach of the obligation to suspend the concentration arising under Article 7(1) of Regulation No 4064/89 until the time when it [put] an end to the infringement by obtaining the Commission’s authorisation or by giving up control’. The Court also made clear, in paragraph 212 of that judgment, that ‘the infringement last[ed] for so long as the control acquired in breach of Article 7(1) remain[ed] and the concentration [had] not been authorised by the Commission’ and that ‘the Commission [had] therefore [been] correct to characterise the infringement as having been continuous until the date of authorisation of the concentration or, as the case may be, until such earlier date that might be taken into account in the light of the circumstances of the case’.

560    Those considerations, which concerned Article 7(1) of Regulation No 4064/89, apply by analogy to Article 7(1) of Regulation No 139/2004.

561    Applying those principles, the starting point for the infringement of Article 7(1) of Regulation No 139/2004 was 18 December 2012, the date of implementation of the concentration at issue, as the Commission correctly found. The applicant does not, moreover, dispute the starting point used by the Commission in respect of the infringement of Article 7(1) of Regulation No 139/2004.

562    As regards the date on which the infringement came to an end, it is apparent from the considerations in paragraph 559 above that an infringement of Article 7(1) of Regulation No 139/2004 comes to an end when the Commission authorises the concentration or when the undertaking concerned gives up control. An infringement of Article 7(1) of Regulation No 139/2004 also ends when any derogation from the suspension obligation is granted by the Commission under Article 7(3) of Regulation No 139/2004.

563    In the present case, the Commission therefore correctly found that the infringement had come to an end on the date on which the concentration had been authorised by the Commission, that is on 30 September 2013. No derogation from the suspension obligation was granted by the Commission or requested by the applicant, and the applicant did not at any time give up control of Morpol. The infringement of Article 7(1) of Regulation No 139/2004 therefore lasted from 18 December 2012 until 30 September 2013, that is a period of 9 months and 12 days, as the Commission found.

564    In paragraphs 172 to 195 of the Contested Decision, the Commission gave detailed reasons for its decision not to exclude either the pre-notification period or the extended Phase I investigation period for the purposes of determining the duration of the infringement of Article 7(1) of Regulation No 139/2004.

565    According to the applicant, the Commission should have excluded the pre-notification period from the duration of the infringement, and the applicant takes issue with a number of the considerations set out in paragraphs 172 to 195 of the Contested Decision.

566    It must be noted in that regard that where the Commission finds an infringement lasting 9 months and 12 days, it is entirely normal for it to take that period into account for the purposes of setting the fine. Admittedly, the Commission may decide, in its discretion, not to take part of the period of an infringement into account, just as it has the right to decide not to pursue an infringement. However, the Commission is not, in principle, obliged not to take into consideration part of the period of an infringement.

567    When questioned at the hearing as to why there was, in the applicant’s view, an obligation to exclude the pre-notification period from the duration of the infringement, the applicant explained that that argument was based solely on the principle of equal treatment and that it was claiming the same treatment as that afforded to Electrabel in the Electrabel decision.

568    It should be noted in that regard that, in paragraph 215 of the Electrabel decision, the Commission decided, ‘exercising its discretion and without prejudice to its general position of principle’, not to take account of the period of pre-notification and examination of the concentration and to make a finding of infringement only up to the date on which Electrabel had informed the Commission of the concentration.

569    Nevertheless, the Commission also found, in paragraph 211 of the Electrabel decision, that a breach of Article 7 of Regulation No 4064/89 could end only when the Commission authorised the concentration or, as the case may be, granted an exemption.

570    It must be noted that the mere fact that the Commission decided, in a particular case, not to take account of part of the period of an infringement, and did so explicitly ‘exercising its discretion and without prejudice to its general position of principle’, does not change the legal framework applicable.

571    The reference in paragraph 212 of the judgment of 12 December 2012, Electrabel v Commission (T‑332/09, EU:T:2012:672) to ‘such earlier date [than the date of authorisation of the concentration] that might be taken into account in the light of the circumstances of the case’ must be interpreted as a reference to the Commission’s power, in the exercise of its discretion, not to take a certain period of the infringement into account in determining its duration. It does not follow from this that the Commission is under an obligation to accept as the date on which the infringement came to an end a date prior to the date on which the concentration was authorised by the Commission.

572    In order to justify its decision not to exclude either the pre-notification phase or the examination phase of the concentration from the duration of the infringement of Article 7(1) of Regulation No 139/2004, the Commission stated, in paragraph 172 of the Contested Decision, that the proposed transaction had raised serious doubts as to its compatibility with the internal market and that it could not be excluded that competitive harm had materialised at least to some extent after implementation and before clearance of the proposed transaction.

573    That consideration is in itself sufficient to justify the fact that the Commission did not adopt the same approach as that taken in the Electrabel decision, wherein the period covering pre-notification and examination of the concentration was excluded from the duration of the infringement.

574    In that context, it must be noted that, in the case giving rise to the Electrabel decision, the Commission found that the concentration had not raised any competition concerns. That implies that the early implementation of that concentration had not had a damaging effect on competition.

575    However, in the present case, the presence of damaging effects on competition as a result of the early implementation of the concentration cannot be ruled out (see paragraphs 505 to 517 above). In those circumstances, it would be inappropriate for the Commission to exclude the period covering pre-notification and examination of the concentration from the duration of the infringement. The risk of damaging effects on competition increases, in such cases, with the duration of the infringement. The applicant’s situation and that of Electrabel in the case giving rise to the Electrabel decision are not comparable, therefore, and so the applicant cannot properly rely on the principle of equal treatment.

576    Accordingly, it is not necessary to examine the applicant’s arguments challenging the Commission’s assessment, in the Contested Decision, that the applicant was reluctant to provide the Commission with all relevant market data. Even if the applicant had demonstrated a cooperative attitude during the procedure to notify the concentration, as it maintains, that would not justify the same approach being taken as that followed in the Electrabel decision and the period encompassing pre-notification and examination of the concentration being excluded from the duration of the infringement of Article 7(1) of Regulation No 139/2004.

577    It follows from the foregoing that the Commission was correct in its assessment of the duration of the infringement of Article 7(1) of Regulation No 139/2004 and correctly excluded neither the pre-notification period nor the period of examination of the concentration from the duration of the infringement.

580    It should be noted, first of all, that the principle of proportionality requires that measures adopted by EU institutions do not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the legislation in question; where there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued. It follows that fines must not be disproportionate to the aims pursued, that is to say, to compliance with the competition rules, and that the amount of the fine imposed on an undertaking for an infringement of competition law must be proportionate to the infringement, viewed as a whole, account being taken, in particular, of the gravity of the infringement (see judgment of 12 December 2012, Electrabel v Commission, T‑332/09, EU:T:2012:672, paragraph 279 and the case-law cited).

581    In addition, it must be borne in mind that, under Article 16 of Regulation No 139/2004, the Court of Justice of the European Union is to have unlimited jurisdiction to review decisions whereby the Commission has fixed a fine or periodic penalty payment; it may cancel, reduce or increase the fine or periodic penalty payment imposed. That jurisdiction empowers the Courts, in addition to carrying out a mere review of the lawfulness of the penalty, to substitute their own appraisal for the Commission’s and, consequently, to cancel, reduce or increase the fine or penalty payment imposed (see judgment of 8 December 2011, KME Germany and Others v Commission, C‑272/09 P, EU:C:2011:810, paragraph 103 and the case-law cited; see also, to that effect, judgment of 5 October 2011, Romana Tabacchi v Commission, T‑11/06, EU:T:2011:560, paragraph 265).

582    The applicant notes that the Commission concluded, in paragraph 206 of the Contested Decision, that a significant fine was necessary to ensure sufficient deterrence. The applicant concedes that, according to the judgment of 12 December 2012, Electrabel v Commission (T‑332/09, EU:T:2012:672, paragraph 282), the Commission ‘is entitled to take into account the need to ensure that fines have a sufficient deterrent effect’. However, according to the applicant, that does not in itself render a fine ‘necessary’ to achieve the objective pursued in this case. In its submission, an infringement decision clarifying the scope of Article 7(2) of Regulation No 139/2004 would have been sufficient in this case to ensure legal certainty and would have represented the least onerous measure.

583    It must be borne in mind that a number of the arguments by which the applicant seeks to establish that the Commission erred in imposing more than a symbolic fine have already been rejected in the context of the examination of the fourth plea in law.

584    As regards, specifically, the deterrent effect of the fine, it should be noted that a simple infringement decision clarifying the scope of Article 7(2) of Regulation No 139/2004 would not have had the same deterrent effect as the Contested Decision imposing a fine of EUR 20 million (see, to that effect, judgment of 12 December 2012, Electrabel v Commission, T‑332/09, EU:T:2012:672, paragraph 295). It was therefore necessary to impose a significant fine in order to achieve the objective of ensuring future compliance with the competition rules.

585    The mere fact that the infringements were committed negligently does not mean that it was not necessary to impose fines in an amount that would have a sufficient deterrent effect. It should be noted that the case giving rise to the Electrabel decision also concerned an infringement that was committed negligently (see, to that effect, judgment of 12 December 2012, Electrabel v Commission, T‑332/09, EU:T:2012:672, paragraph 276).

586    As regards the applicant’s argument that the present case concerns a possible infringement due to an excusable misinterpretation of Article 7(2) of Regulation No 139/2004, it is sufficient to recall that the applicant’s conduct was negligent and that there was no excusable error on its part (see the examination of the second plea and paragraph 484 above).

587    The applicant has not therefore raised any argument, in the context of the first complaint in the fourth part of the fifth plea, that is capable of calling in question the proportionality of the fine imposed.

592    In that regard, it should be borne in mind that, as the applicant acknowledges, the Commission’s previous practice in taking decisions does not serve as a legal framework for the fines imposed in competition matters (see judgment of 12 December 2012, Electrabel v Commission, T‑332/09, EU:T:2012:672, paragraph 259 and the case-law cited).

593    The applicant submits in that regard that it is not requesting the Court to apply the same mathematical formula as in the Electrabel decision, which would result in a reduction of the fine imposed on the applicant by a coefficient of 25. It does, however, submit that the Court should take account of the striking difference in the treatment of Electrabel and the applicant, in the exercise of its unlimited jurisdiction, and giving due account to the circumstances of the present case.

594    It must be stated that the fine in the present case is indeed much larger in relation to the applicant’s turnover than that imposed in the Electrabel decision, although the two fines are identical in absolute terms (EUR 20 million in both cases). It should, however, be borne in mind that previous decisions by the Commission imposing fines can be relevant from the point of view of observance of the principle of equal treatment only where it is demonstrated that the facts of the cases in those other decisions are comparable to those of the present case (see judgment of 29 June 2012, E.ON Ruhrgas and E.ON v Commission, T‑360/09, EU:T:2012:332, paragraph 262 and the case-law cited).

595    In the present case, first, it is necessary to take into account the fact that, in the Electrabel decision, the Commission had imposed a fine for infringement of Article 7(1) of Regulation No 4064/89 only. In the present case, the Commission was fully entitled to impose two fines for the infringements of Article 4(1) and Article 7(1) of Regulation No 139/2004.

596    Second, it is necessary to take into account the fact that, in the present case, the proposed transaction raised serious doubts as to its compatibility with the internal market and that the early implementation of the concentration could have had adverse effects on competition, contrary to the position in the case giving rise to the Electrabel decision. That fact alone justifies the imposition of a much larger fine than that imposed in the Electrabel decision.

597    The applicant argues that the Commission had emphasised in the Electrabel decision that the fact that the transaction had not raised competition concerns did not take away from the seriousness of the infringement and that the presence of damage to competition would indeed have rendered the infringement more serious. According to the applicant, neither the case giving rise to the Electrabel decision nor the present case involved any actual damage to competition.

598    In that regard, suffice it to note, first, that the fact that a concentration raises serious doubts as to its compatibility with the internal market makes the early implementation of that concentration more serious than the early implementation of a concentration which does not raise competition concerns, unless the possibility that its implementation in the form initially envisaged and not cleared by the Commission may have had damaging effects on competition can be ruled out in a particular case (see paragraph 500 above), and, second, that, in the present case, an adverse impact on competition of the early implementation of the concentration cannot be ruled out (see paragraph 514 above).

599    The applicant further submits that the context of the present case — first, reliance upon the exemption provided for in Article 7(2) of Regulation No 139/2004; second, concomitant observance of the conditions in Article 7(2) of Regulation No 139/2004; and, third, full cooperation with the Commission in designing an appropriate remedy package — renders any potential factual difference with the case giving rise to the Electrabel decision insignificant.

600    As regards the first element, it must be borne in mind that the present case concerns an infringement committed negligently, like the infringement at issue in the case giving rise to the Electrabel decision. The fact that the applicant’s error may have concerned the scope of the exception provided for in Article 7(2) of Regulation No 139/2004 does not render the infringement less serious.

601    As regards the second element, it must be noted that the Commission took into account as mitigating circumstances the fact that the applicant had not exercised its voting rights in Morpol and the fact that it had kept Morpol as an entity separate from the applicant during the merger review process (paragraphs 196 and 198 of the Contested Decision). It must, however, be borne in mind that those measures do not preclude the possibility that the early implementation of the concentration may have had adverse effects on competition (see paragraph 516 above).

602    As regards the third element, the Commission correctly points out that it was in the applicant’s own commercial interest to offer a remedy package. Had the applicant not offered such remedies, the Commission would have opened Phase II proceedings, which would have prolonged the infringement and could ultimately have led to the prohibition of the concentration. The fact that the applicant offered an appropriate remedy package does not, therefore, render the infringement less serious.

603    It must also be noted, as regards the comparison between the present case and the case giving rise to the Electrabel decision, that the fact that in the past the Commission has applied fines of a particular level for certain types of infringements does not mean that it is precluded from raising that level within the limits indicated in the relevant legislation if that is necessary to ensure the implementation of EU competition policy. Indeed, the proper application of the EU competition rules requires that the Commission be able at any time to adjust the level of fines to the needs of that policy (see judgment of 12 December 2012, Electrabel v Commission, T‑332/09, EU:T:2012:672, paragraph 286 and the case-law cited).

604    The applicant submits that the present case does not concern a clear-cut breach of the standstill obligation and that, at most, it concerns an erroneous interpretation of Article 7(2) of Regulation No 139/2004 due to an excusable error. Therefore, according to the applicant, the level of the fine in this case cannot be justified by any competition policy arguments.

605    As regards the applicant’s argument in that respect, it is sufficient to recall that the applicant’s conduct was negligent and that there was no excusable error on its part (see the examination of the second plea and paragraph 484 above).

606    It must also be noted that the total amount of the two fines imposed in the present case is equivalent to approximately 1% of the applicant’s turnover. The Commission indicates in that regard that that amount corresponds to 10% of the maximum amount permitted.

607    The Commission correctly points out in the defence that the decision to set the amount of the fine at the low end of the permitted range reflects the balance that the Commission sought to strike between, on the one hand, the seriousness of the infringements committed, the potential harm to competition that the transaction could have caused, the size and complexity of the applicant’s structure and the need to ensure sufficient deterrence, and, on the other hand, certain mitigating factors such as the applicant having acted negligently rather than intentionally, the fact that it sought legal advice, the fact that it did not exercise its voting rights under its shares and the fact that the two businesses were kept separate pending clearance of the transaction.

608    In the light of the matters mentioned in paragraph 607 above, the amount of the fines cannot be considered disproportionate. The amount of the fines, even aggregated, is at the low end of the permitted range, which reflects a fair balance between the factors to be taken into account and which is proportionate in the light of the circumstances of the case. For those reasons, it must be held that the amount of the fines imposed is appropriate having regard to the circumstances of the case.

 

Intervention
Interim measures
Order 1.      Dismisses the appeal;

2.      Orders Marine Harvest ASA to pay the costs to pay the costs.

Fine changed No
Case duration 36 months
Judge-rapporteur A. Dittrich
Advocate-general
Notes on academic writings

 

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Kiran Desai

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Partner, EU Competition Law Leader, EY Law, Brussels

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