Commissioner Margrethe Vestager, in charge of competition policy, said: "Companies that jump the gun and implement mergers before notification or clearance undermine the effectiveness of our merger control system. This is the system that protects European consumers from any merger that would lead to higher prices or reduced choice. The fine imposed by the Commission on Altice today reflects the seriousness of the infringement and should deter other firms from breaking EU merger control rules".
To be able to deliver accurate decisions within tight timelines, the EU merger control system is built on clear procedural rules that companies must fully respect to ensure fair competition.
EU merger rules require that merging companies notify planned mergers of Union dimension for review by the Commission ("the notification requirement") and do not implement them until cleared by the Commission ("the standstill obligation"). The standstill obligation prevents the potentially irreparable negative impact of transactions on the market, pending the outcome of the Commission's investigation.
In February 2015, Altice notified the Commission of its plans to acquire PT Portugal. The transaction was conditionally cleared by the Commission on 20 April 2015, subject to the divestment of Altice's businesses in Portugal at the time, Oni and Cabovisão.
In May 2017, the Commission addressed a Statement of Objections to Altice detailing its concerns that Altice implemented its acquisition of PT Portugal before obtaining the Commission's clearance, and in some instances, even before its notification of the merger. In today's decision the Commission confirms its preliminary view that Altice breached the EU Merger Regulation and imposes a fine of €124.5 million on Altice.
In particular, the Commission has concluded that:
- certain provisions of the purchase agreement resulted in Altice acquiring the legal right to exercise decisive influence over PT Portugal, for example by granting Altice veto rights over decisions concerning PT Portugal's ordinary business;
- in certain cases, Altice actually exercised decisive influence over aspects of PT Portugal's business, for example by giving PT Portugal instructions on how to carry out a marketing campaign and by seeking and receiving detailed commercially sensitive information about PT Portugal outside the framework of any confidentiality agreement.
Today's decision has no impact on the Commission's April 2015 decision to authorise the transaction under the EU Merger Regulation. The assessment of the Commission at the time was independent of the facts reproached by the Commission to Altice in today's decision.
According to the Merger Regulation, the Commission can impose fines of up to 10% of the aggregated turnover of companies, which intentionally or negligently breach the notification and/or the standstill obligations.
In setting the amount of a fine, the Commission takes into account the nature, the gravity and duration of the infringement, as well as any mitigating and aggravating circumstances.
Altice breached both the notification and the standstill obligations. The Commission considers that these infringements are serious because they undermine the effective functioning of the EU merger control system.
Moreover, the Commission considers that Altice was aware of its obligations under the Merger Regulation. Therefore, Altice's breach of procedural obligations was, at least, negligent.
On the basis of these factors, the Commission has concluded that an overall fine of €124 500 000 is both proportionate and deterrent.
The Altice/PT Portugal merger case
On 9 December 2014, Altice entered into a transaction agreement with Oi, the Brazilian telecommunications operator which controlled PT Portugal, to acquire sole control of PT Portugal. The transaction was notified to the Commission in February 2015 and approved, subject to conditions, in April 2015.
At the time of the notification, Altice's Portuguese subsidiaries Cabovisão and ONI were competitors of PT Portugal for telecommunications services in Portugal. The Commission had concerns that the merged entity would have faced insufficient competitive constraint from the remaining players on the market for fixed telecommunications. This could have led to higher prices for clients. The decision was therefore conditional upon Altice's divestment of both ONI and Cabovisão.
Other merger procedural cases
In May 2017, the Commission fined Facebook €110 million for providing incorrect or misleading information during the Commission's 2014 investigation under the EU Merger Regulation of Facebook's acquisition of WhatsApp. This decision had no impact on the Commission's October 2014 approval of the transaction under the EU Merger Regulation since the clearance decision was based on a number of different elements going beyond those linked to the incorrect or missing information.
In July 2017, the Commission sent three separate Statements of Objections to Merck and Sigma-Aldrich, General Electric and Canon alleging they breached EU merger rules: one to General Electric, and one to Merck and Sigma-Aldrich for allegedly providing incorrect or misleading information; one to Canon for allegedly implementing a merger before notification and clearance. These investigations are ongoing.
The obligation on companies to notify transactions to the Commission prior to their implementation is laid out in Article 4(1) of the EU Merger Regulation. This obligation safeguards the Commission's ability to detect and investigate concentrations.
The standstill obligation (Article 7(1)) whereby mergers falling within the remit of the Merger Regulation may not be implemented prior to notification to or clearance by the Commission prevents the potentially detrimental impact of transactions on the competitive structure of the market, pending the outcome of the Commission investigation. The ability of the Commission to impose fines in the event of a breach of Article 4(1) or 7(1) is laid out in Article 14(2)(a) and (b) of the EU Merger Regulation.