The General Court of the European Union (GC) upheld the European Commission’s (EC) decision imposing two fines on Altice Europe for gun jumping infringements related to its acquisition of PT Portugal. The GC confirmed in particular that closing before filing and closing before clearance constitute two separate infringements, liable to two different fines.

Key Points:

..Articles 4(1) (obligation to notify the concentration) and Article 7(1) (obligation not to implement the concentration before it has been notified and cleared) of EUMR pursue autonomous objectives, and failure to comply with them constitutes two separate infringements.

..Regardless of the absence of the transfer of shares or assets, restrictive covenants in transactional documents that provide the acquirer with oversight over the ordinary course of business of the target may confer de facto control.

..The possibility of exercising decisive influence on an undertaking (rather than actual implementation of control) is sufficient to constitute infringement of Article 7(1) and Article 4(1) of EU Merger Regulation (EUMR).

..Information exchange that goes beyond what is necessary for target valuation may contribute to the exercise of decisive influence.