Action brought on 5 July 2018 – Altice Europe v Commission
(Case T-425/18)
Language of the case: English
Parties
Applicant: Altice Europe NV (Amsterdam, Netherlands) (represented by: R. Allendesalazar Corcho and H. Brokelmann, lawyers)
Defendant: European Commission
Form of order sought
The applicant claims that the Court should:
annul Articles 1, 2, 3 and 4 of Commission Decision C(2018) 2418 final of 24 April 2018 imposing a fine for putting into effect a concentration in breach of Article 4(1) and Article 7(1) of Council Regulation (EC) No 139/2004 1 (Case M.7993 — Altice/PT Portugal, Article 14(2) procedure);
in the alternative, exercise its unlimited jurisdiction to substantially reduce the fines imposed in Articles 3 and 4 of the decision; and
in any event, order the European Commission to bear all the costs.
Pleas in law and main arguments
In support of the action, the applicant relies on five pleas in law.
First plea in law, alleging that Articles 4(1) and 7(1) EUMR and the principles of legality and presumption of innocence were infringed, insofar as the contested decision applies the notion of ‘implementation’ of a concentration beyond its scope and meaning.
The applicant submits that the ‘implementation’ of a concentration for the purposes of Articles 4(1) and 7(1) EUMR would require more than a ‘possibility of exercising decisive influence’ on an undertaking and that none of the elements relied on in the contested decision would amount to an implementation. The applicant further submits that, by unduly extending the notion of ‘implementation’, the contested decision would infringe the principle of legality enshrined in Article 49(1) of the Charter of Fundamental Rights of the European Union and Article 7 of the European Convention on the Protection of Human Rights and Fundamental Freedoms, as well as the presumption of innocence guaranteed in Article 48(1) of the Charter of Fundamental Rights of the European Union and Article 6(2) of the European Convention on the Protection of Human Rights and Fundamental Freedoms.
Second plea in law, alleging that the Commission erred in fact and in law, insofar as the contested decision finds that the applicant acquired sole control of PT Portugal.
The contested decision would err in law and in fact in establishing that the applicant acquired sole control of PT Portugal and that it implemented the concentration by acquiring sole control of PT Portugal.
Third plea in law, alleging that the Commission erred in law and in fact in establishing the existence of the infringements of Articles 4(1) and 7(1) EUMR.
The pre-closing covenants allegedly contained in the sale-purchase agreement would have had an ancillary nature and would not have amounted to an early implementation of a concentration. Moreover, the applicant would not have actually exercised any decisive influence over PT Portugal prior to the closing. The Commission could not have reasonably relied on the seven matters referred to in Section 4.2.1 of the contested decision to establish the exercise by the applicant of effective control over PT Portugal. Finally, the contested decision would err in law and in fact by finding that the transmission of information to the applicant contributes to the finding of exercise of control.
Fourth plea in law, alleging that the Commission infringed the principles of ne bis in idem, proportionality, the prohibition of double punishment, and raising an objection of illegality in respect of Articles 4(1) and 14(2)(a) EUMR.
By imposing on the same offender two fines for the same conduct based on two statutory provisions that protect the same legal interest, the contested decision allegedly infringes the principle ne bis in idem enshrined in Article 50 of the Charter of Fundamental Rights of the European Union and Article 4(1) of Protocol No 7 to the European Convention on the Protection of Human Rights and Fundamental Freedoms, the principle of proportionality enshrined in Article 49(3) of the Charter of Fundamental Rights of the European Union, and the prohibition of double punishment rooted in the general principles common to the legal systems of the Member States. Objection of illegality pursuant to Article 277 TFEU in respect of Articles 4(1) and 14(2)(a) EUMR which would allow the Commission to sanction the same offender twice for a single conduct being already sanctioned by Articles 7(1) and 14(2)(b) EUMR.
Fifth plea in law, alleging that the fines are illegal and infringe the principle of proportionality.
The contested decision would infringe Article 14(2) EUMR, insofar as it imposes fines on the applicant, despite the lack of negligence or intent and of any impairment of the objectives of the EU merger control rules. The contested decision would infringe Article 296 TFEU and Article 41(2) of the Charter of Fundamental Rights of the European Union by failing to state reasons as regards the amount of the fines. The contested decision would further infringe the principle of proportionality by imposing a second fine pursuant to Article 14(2)(a) EUMR for the same conduct already sanctioned pursuant to Article 14(2)(b) EUMR. Finally, the fines would infringe the principle of proportionality, since the contested decision would not properly take into account all relevant circumstances when setting their amounts.
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1 Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) (OJ L 24, 29.1.2004, p. 1) (‘the EUMR’).