Action brought on 3 October 2014 – Marine Harvest/Commission

(Case T-704/14)

Language of the case: English

Parties

Applicant: Marine Harvest ASA (Bergen, Norway) (represented by: R. Subiotto, QC)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

annul the Commission Decision of July 23, 2014, in Case COMP/M.7184 – Marine Harvest/Morpol (Art. 14(2) proc.);

alternatively, annul the fines imposed on Marine Harvest pursuant to that Decision;

in the further alternative, substantially reduce the fines imposed on Marine Harvest pursuant to that Decision;

in any event, order the Commission to pay Marine Harvest legal and other costs and expenses in relation to this matter; and take any other measures that this Court considers appropriate.

Pleas in law and main arguments

In support of the action, the applicant relies on five pleas in law.

First plea in law, claiming that the Decision errs in law and fact because it finds that Marine Harvest should have notified its acquisition of a 48.5% stake in Morpol in December 2012 (the “December 2012 Acquisition”) under Council Regulation (EC) No 139/2004, and refrained from acquiring title to a 48.5% shareholding in Morpol before receiving clearance of that element of the overall transaction, thereby rejecting the unitary nature of, and the applicability of Article 7(2) of Council Regulation (EC) No 139/2004 to, the December 2012 Acquisition and the subsequent public offer mandated by the December 2012 Acquisition under Norwegian public takeover rules, and which Marine Harvest always intended to launch expeditiously so as to acquire full control of Morpol.

Second plea in law, claiming that the Decision errs in law and fact because it finds that Marine Harvest was negligent in not notifying the December 2012 Acquisition and refraining from acquiring title to the 48.5% shareholding in Morpol before receiving clearance of that element of the overall transaction, thereby ignoring that Marine Harvest could not reasonably have foreseen, whether objectively or subjectively, that the December 2012 Acquisition and the subsequent public offer would not fall within the scope of Article 7(2) of Council Regulation (EC) No 139/2004.

Third plea in law, claiming that the Decision violates the principle that no-one should be punished twice for the same offence by fining Marine Harvest for (i) failing to notify the December 2012 Acquisition before (ii) implementing it by acquiring title to the 48.5% shareholding in Morpol.

Fourth plea in law, claiming, in the alternative, that the Decision’s fining of Marine Harvest violates the principles of legal certainty, “nullum crimen, nulla poena sine lege”, and equal treatment, because of the novelty of the factual and legal issues in this case, and the Commission’s recent handling of a comparable case, in which it did not (i) open an investigation, (ii) reach a definitive and binding conclusion on the scope of Articles 7(1) and 7(3) of Council Regulation (EC) No 139/2004, and (iii) impose a fine.

Fifth plea in law, claiming, in the further alternative, that the Decision contains manifest errors of law and fact and lacks reasoning in setting the fine levels in this case, because it (i) does not explain how the fines are calculated, (ii) emphasizes the gravity of the alleged violations by reference to factors that do not support it, (iii) includes in the duration of the infringement periods that it excluded in other cases on the misguided grounds that Marine Harvest was insufficiently forthcoming in the pre-notification period, (iv) sets the fines at a level that is disproportionate relative to the duration and gravity of the alleged violation, and objectives to be achieved, and (v) overlooks mitigating circumstances, including the transparent and cooperative merger control process, lack of relevant precedents, and excusable error in committing the alleged violation.