Marine Harvest Fined €20 Million For Acting Without EU Merger Clearance
The European Commission has imposed a fine of €20 million on salmon farmer and processor Marine Harvest for acquiring its rival Morpol, both of Norway, without having received prior authorisation under the EU Merger Regulation. The Commission concluded that Marine Harvest should have been aware of its obligations to notify and await clearance from the Commission before proceeding with the acquisition.
Under the EU Merger Regulation, mergers and acquisitions with an EU dimension (in particular because they meet certain turnover thresholds) must be notified to and authorised by the Commission before they are implemented. This so-called ‘standstill obligation’ is a cornerstone of the EU merger control system, as it allows the Commission to identify whether the concentration raises competition concerns and, if the companies do not submit commitments that address them, to prohibit the transaction and prevent it from taking place. This prior scrutiny is a key safeguard that protects direct customers and final consumers from the harm that anticompetitive mergers could create – through higher prices, lower product quality, or fewer incentives to innovate.
By acquiring a 48.5% stake in Morpol on 18 December 2012, Marine Harvest had acquired de facto sole control over Morpol. Indeed, the Commission’s investigation found that following this transaction Marine Harvest enjoyed a stable majority at the shareholders’ meetings, because of the wide dispersion of the remaining shares and previous attendance rates at these meetings.
Marine Harvest implemented the acquisition eight months before the formal notification to the Commission took place, and over nine months before the Commission authorised it, in breach of Articles 4(1) and 7(1) of the EU Merger Regulation.
According to the Merger Regulation, the Commission can impose fines of up to 10% of the aggregated turnover of companies which intentionally or negligently infringe the notification requirement and the standstill obligation.
In setting the amount of a fine, the Commission takes into account the gravity and duration (in this case, over nine months) of the infringement, as well as mitigating and aggravating circumstances.
Marine Harvest is a large European company with wide previous experience and familiarity with EU merger control rules. The Commission therefore concluded that Marine Harvest should have been aware of its obligations to notify the acquisition of Morpol and obtain clearance before closing the transaction, and that its failure to comply with these obligations amounts to negligent conduct.
On 30 September 2013, the Commission cleared, subject to conditions, the proposed acquisition of Morpol, the largest salmon processor in the European Economic Area (EEA), by the leading EEA salmon farmer Marine Harvest. Marine Harvest committed to divest the largest part of Morpol’s salmon farming operations in Scotland, based in Shetland and the Orkneys. This addressed the Commission’s competition concerns
