On April 12, 2022, the French Competition Authority (“FCA”) fined Compagnie Financière Européenne de Prises de Participation (“COFEPP”) 7 million euros for two distinct but related infringements, namely failing to notify a merger transaction (failure to notify) and implementing said transaction before merger control approval had been obtained (so-called “gun-jumping”).[1] This is the first time that the FCA fines both infringements in the same decision,[2] following in the footsteps of the Commission in the Altice Portugal and Marine Harvest decisions.[3]
Background
On January 3, 2019, COFEPP notified to the FCA its contemplated acquisition of Marie Brizard Wine & Spirits (“MBWS”). Both companies are active in the production and distribution of spirits, wines and syrups. The transaction was subsequently cleared by the FCA in February 2019, subject to conditions[4].
Less than two months later, the FCA opened a gun-jumping investigation and conducted dawn raids at COFEPP and MBWS’s headquarters. The FCA found that COFEPP had committed two distinct infringements: first, it failed to notify the acquisition of MBWS before it had been implemented, and second, it implemented the transaction prior to receiving FCA approval. COFEPP did not challenge the FCA’s findings and entered into a settlement agreement in December 2021.[5]
The FCA ruling
The FCA decision found that COFEPP exercised de facto control over MBWS on April 13, 2018, about seven months before the transaction was notified to the FCA.
Pursuant to FCA case law,[6] an acquisition is deemed effective either (i) upon effective transfer of the ownership of all or part of the acquired company’s assets, as well as the rights attached to them, to the acquirer (de jure control) or (ii) when the acquirer acquires decisive influence over all or part of the target’s activities based on all legal and factual circumstances (de facto control).
The FCA found that COFEPP progressively became the main MBWS shareholder between 2015 and 2017 (holding from around 5% in June 2015 to more than 29% in September 2017) and that, as a result, COFEPP’s weight as a shareholder had become increasingly important at MBWS shareholders’ meetings and on the board of directors. The FCA also found that COFEPP had obtained access to commercially sensitive information related to MBWS, despite indications to the contrary in MBWS’s protocols and in the clean team agreement entered into between the parties.
The FCA also found that COFEPP and MBWS had tightened their commercial and financial ties over the same period. COFEPP had become an important supplier of port and whisky beverages for MBWS, and COFEPP had granted an advance payment to MBWS on its shareholder’s account after MBWS experienced cash flow difficulties. The FCA found that such financial support enabled COFEPP to strongly influence MBWS’s choice in selecting one of COFEPP’s subsidiaries as a distributor for MBWS products in Spain. Finally, the FCA considered that COFEPP had intervened in various MBWS strategic and operational decisions from 2018 onwards, such as the choice of the new MBWS CEO, MBWS’s commercial policy and budget, its relations with investors, and its day-to-day management.
The FCA therefore concluded that COFEPP has exercised decisive influence over MBWS from April 13, 2018 (i.e., the date of the appointment of MBWS’s CEO) which led to the implementation of the transaction despite it not having been notified to, nor cleared by, the FCA.
When setting the amount of the fine, the FCA noted the deliberate nature of the infringements and explained that the transaction had been cleared subject to remedies, which meant that the infringements potentially negatively impacted competition.
[1] FCA Decision No. 22-D-10 of April 12, 2022 relating to Compagnie Financière Européenne de Prises de Participation with respect to article L.430-8 of the French Commercial Code.
[2] In previous decisions, the FCA sanctioned only one of the two obligations. See FCA Decision No. 16-D-24 of November 8, 2016 relating to the Altice group with respect to article L.430-8, II of the French Commercial Code (gun-jumping); FCA Decision No. 13-D-22 of December 20, 2013 relating to the group Castel with respect to article L.430-8, I of the French Commercial Code (failure to notify); FCA Decision No. 13-D-01 of January 31, 2013 relating to the Réunia and Arpège groups with respect to article L.430-8, I of the French Commercial Code (failure to notify); and FCA Decision No. 12-D-12 of May 12, 2012 relating to the Colruyt group with respect to article L.430-8, I of the Commercial Code (failure to notify).
[3] See Commission Decision of April 24, 2018, Case COMP/M.7993, Altice/PT Portugal, recently confirmed by the General Court (see General Court Judgment of September 22, 2021, Case T-425/18 Altice Europe NV v European Commission) and Commission Decision of July 23, 2014, Case No. COMP/M.7184, Marine Harvest/Morpol, also recently confirmed by the European Court of Justice (see European Court of Justice Decision of March 4, 2020, Mowi ASA v European Commission).
[4] FCA Decision No. 19-DCC-36 of February 28, 2019 relating to the acquisition of sole control of Marie Brizard Wine & Spirits by Compagnie Financière Européenne de Prises de Participation. The FCA requested the divestiture of the Pitters and Tiscaz brands on the market for port and tequila alcoholic beverages as a remedy.
[5] The French settlement procedure enables undertakings to benefit from a fine reduction in exchange for agreeing not to challenge the statement of objections and admit liability. The fine range is negotiated between the FCA and the undertaking.
[6] FCA Decision No. 16-D-24 of November 8, 2016 relating to the Altice group pursuant to Article L. 430-8, II of the French Commercial Code, paras. 193-195.