In December 2014 Altice, a Netherlands-based telecoms group with activities in France, Portugal, Israel, Dominican Republic and the USA agreed to acquire PT Portugal, the Portuguese telecoms operator. Altice notified the transaction to the European Commission in February 2015 and in April, 2015, the Commission cleared the transaction on the condition that Altice would divest its existing Portuguese subsidiaries Cabovisão and ONI, which it did in September 2015.
On May 18, 2017, however, the European Commission issued a Statement of Objections setting out its concerns that Altice had breached both the notification requirement and the standstill obligation under the EU Merger Regulation by implementing the acquisition of PT Portugal before the Commission’s clearance decision, or even its notification.
Although the announcement does not specify the exact conduct that is of concern, the Commission alleges that Altice was in a position to and actually had exercised decisive influence over PT Portugal before the clearance of the transaction in the period between December 2014 and February 2015.
The Commission’s Statement of Objections does not constitute a final decision. Altice has the opportunity to respond in writing, and may even request an oral hearing to the Commission. However, although it is the opening of the formal process, in practice the Commission will already have carried out a thorough investigation of the facts. The Comission’s announcement specifies that the clearance itself is not set to be withdrawn, but if the European Commission concludes that Altice did in fact jump the gun it could impose a fine of up to 10% of the company’s annual worldwide turnover.
The decision to open the investigation was announced on the same day that the Commission imposed a fine on Facebook for providing misleading information in a merger case (as described in this blog post) and, like that case, seems to indicate a somewhat stricter approach by the Commission in relation to procedural issues. It also highlights the need for parties to take care in relation to the “interim period”. While it is legitimate for parties to take preparatory steps aimed at facilitating the post-closing integration of their businesses, the Commission and other competition authorities will be vigilant of anything perceived as coordination or integration ahead of clearance.