CJEU upholds Marine Harvest gun-jumping fine

In its ruling of 4 March 2020 the Court of Justice of the EU (CJEU) dismissed Marine Harvest’s appeal against the Commission’s decision in which it had imposed two separate fines of €10 million each for failure to notify a transaction under Article 4(1) EUMR and for implementing that transaction prior to clearance, in breach of the standstill obligation under Article 7(1) EUMR.  Marine Harvest argued that this meant it had been fined twice for the same conduct, in breach of the principle of ne bis in idem under which nobody should be punished twice for the same offence.  Marine Harvest also argued that this infringed the general principle governing ‘concurrent offences’ which should prevent the Commission from penalising a company for two offences which have the same objective.  The CJEU concluded that failure to notify and breach of the suspension obligation are separate infringements for which the Commission can impose separate fines.  The CJEU departed from the opinion that had been issued by the Advocate General.

The same issue is under appeal in other gun-jumping cases currently before the General Court (Altice and Canon/Toshiba), as the Commission has adopted this approach in all its infringement decisions where a transaction had been implemented prior to notification, typically allocating the fine equally between breach of Article 4(1) and Article 7(1) EUMR.  We can now expect the Commission to continue imposing separate fines for both infringements.

The ruling is a useful reminder that breaches of procedural rules under the EU merger control regime are taken very seriously, a trend we are also seeing in other jurisdictions.  In the UK for example the CMA has over the last two years adopted infringement decisions, imposing fines for breach of initial enforcement orders (requiring the parties to prevent further integration), in a wide range of cases.

Read the full briefing here.

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