Overview
Gun-jumping can occur when parties fail to fulfil the two obligations laid down by the European Merger Regulation No 139/2004 (EUMR). Article 4(1) of the EUMR sets out the obligation to notify the European Commission (Commission) of a concentration with an EU dimension before implementation. Article 7(1) sets out the obligation to stand still until the Commission declares such a concentration compatible with the internal market.
But would it be possible for parties to breach both obligations concurrently regarding the same transaction and thus to be fined doubly? The General Court answered in the affirmative in one of the most anticipated anti-gun-jumping cases.
Contested decision
On September 22, 2021, the General Court of the European Union upheld the decision of April 24, 2018 (contested decision) by the Commission, which imposes two fines on Altice for infringing Article 4(1) and Article 7(1) of the European Merger Regulation No 139/2004 (EUMR). This note considers the potential implications after the GC’s judgment.
Altice is a multinational cable and telecommunications company based in the Netherlands. PT Portugal is a telecommunications and multimedia operator with activities in Portugal.
The chronology of the main procedural steps relating to Altice’s notification to the Commission and in the run-up to the contested decision is as follows:
- On October 31, 2014, Altice contacted the Commission to inform it of its plan to acquire sole control of PT Portugal.
- On December 9, 2014, Altice entered into a share purchase agreement (SPA) with PT Portugal.
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- On February 25 2015, Altice formally notified the transaction to the Commission.
- On April 20, 2015, the Commission adopted a decision by declaring the operation compatible with the internal market subject to compliance with the commitments annexed to that decision.
- On June 2, 2015, Altice publicly announced that the transaction had been completed and that ownership of the shares in PT Portugal had been transferred to it.
- Between April 2015 and August 2016, the Commission sent Altice five separate requests for information.
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- On April 24, 2018, the Commission adopted a decision (i.e. the contested decision).