2018:371 Ernst & Young v Konkurrenceradet

Court Court of Justice
Date of ruling 31 May 2018
Case name (short version) Ernst & Young P/S v Konkurrenceradet
Case Citation C-633/16

ECLI:EU:C:2018:371

Key words Reference for a preliminary ruling — Control of concentrations of undertakings — Regulation (EC) No 139/2004 — Article 7(1) — Implementation of a concentration prior to notification to the European Commission and declaration of compatibility with the common market — Prohibition — Scope — Concept of ‘concentration’ — Termination of a cooperation agreement with a third party by one of the merging undertakings
Basic context This request for a preliminary ruling concerns the interpretation of Article 7(1) of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (‘the EC Merger Regulation’) (OJ 2004 L 24, p. 1).  The request has been made in the context of an action for annulment brought by Ernst & Young P/S before the Sø- og Handelsretten (Maritime and Commercial Court, Denmark) against a decision of the Konkurrencerådet (Competition Council, Denmark) by which it found that, first, Ernst & Young, Ernst & Young Europe LLP, Ernst & Young Godkendt Revisionsaktieselskab, Ernst & Young Global Limited and EYGS LLP (collectively, ‘the EY companies’) and, secondly, KPMG Statsautoriseret Revisionspartnerselskab, Komplementarselskabet af 1. januar 2009 Statsautoriseret Revisionsaktieselskab and KPMG Ejendomme Flintholm K/S (collectively, ‘the KPMG DK companies’) had infringed the prohibition of implementing a merger prior to its approval by the Competition Council (‘the standstill obligation’), in accordance with Paragraph 12c(5) of the Konkurrenceloven (Danish Law on competition).
Points arising – admissibility
Points arising – substance The three questions posed of the Court are:

(1)      What criteria are to be applied in assessing whether the conduct or actions of an undertaking are covered by the prohibition in Article 7(1) of Regulation No 139/2004 (the prohibition of implementation prior to approval), and does implementing action within the meaning of that provision presuppose that the action, wholly or in part, factually or legally, forms part of the actual change of control or merging of the continuing activities of the participating undertakings which — provided the quantitative thresholds are met — gives rise to the obligation of notification?

 

(2)      Can the termination of a cooperation agreement, such as in the present case, which is announced under circumstances corresponding to those described [in the order for reference] constitute an implementing action covered by the prohibition in Article 7(1) of Regulation No 139/2004, and what criteria are then to be applied in making a decision?

 

(3)      Does it make any difference in answering Question 2 whether the termination has actually given rise to market effects relevant to competition law?

 

(4)      If the answer to Question 3 is in the affirmative, clarification is requested as to what criteria and what degree of probability should be applied in deciding [in the case in the main proceedings] whether the termination has given rise to such market effects, including the significance of the possibility that those effects could be attributed to other causes.

 

62      In the light of all the foregoing considerations, the answer to the first to third questions is that Article 7(1) of Regulation No 139/2004 must be interpreted as meaning that a concentration is implemented only by a transaction which, in whole or in part, in fact or in law, contributes to the change in control of the target undertaking. The termination of a cooperation agreement, in circumstances such as those in the main proceedings, which it is for the referring court to determine, may not be regarded as bringing about the implementation of a concentration, irrespective of whether that termination has produced market effects.

 

Intervention
Interim measures
Order Article 7(1) of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (‘the EC Merger Regulation’) must be interpreted as meaning that a concentration is implemented only by a transaction which, in whole or in part, in fact or in law, contributes to the change in control of the target undertaking. The termination of a cooperation agreement, in circumstances such as those in the main proceedings, which it is for the referring court to determine, may not be regarded as bringing about the implementation of a concentration, irrespective of whether that termination has produced market effects.
Fine changed
Case duration 18 months
Judge-rapporteur Tizzano
Advocate-general Wahl
Notes on academic writings 1 Idot, Laurence: Concurrence – concentrations et gun-jumping, Europe 2018 Juillet Comm. nº 7 p.30-31 (FR)

2.Von Graevenitz, Albrecht: EU-Fusionskontrollrecht: Zur Reichweite des Vollzugsverbots („gun jumping“) – Anmerkung von Rechtsanwalt Dr. Albrecht v. Graevenitz, Europäische Zeitschrift für Wirtschaftsrecht 2018 p.603-608 (DE)

3.Brunet, François ; Verney, Céline: Une première pierre à l’édifice prétorien de la définition de la notion de gun jumping: l’arrêt de la Cour de justice de l’Union européenne dans l’affaire Ernst & Young (c-633/16), Revue Lamy de la Concurrence : droit, économie, régulation 2018 nº 76 p.10-13 (FR)

4.Dohrn, Daniel ; Spangler, Simon: Reichweite des Vollzugsverbots, IWRZ – Zeitschrift für internationales Wirtschaftsrecht 2018 N°6 p.268 (DE)

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