AdC fines Fidelidade – Sociedade Gestora de Organismos de Investimento Coletivo, S.A. (Fidelidade SGOIC) for Gun-Jumping
The AdC’s Decision
The AdC has decided to impose a fine on Fidelidade SGOIC in the amount of € 300,000 for gun-jumping, specifically, for implementing the merger before the notification to the AdC, and therefore before a clearance decision.
The merger in question consisted of the acquisition, by Fidelidade SGOIC, of sole control over the Saudeinveste Fund. The acquisition had already been implemented since October 1, 2018, and only notified to the AdC on February 21, 2019.
The target Saudeinveste Fund is a real estate investment fund, with a portfolio comprising a number of real estate assets. These assets are used, under lease agreements, by several private hospitals and healthcare clinics controlled by competitors of Luz Saúde, the healthcare arm of the Fidelidade group.
As a result of the transaction, the Fidelidade group would acquire control over the management of the real estate’s assets where the competitors of Luz Saúde provide healthcare services. The vertical integration thereof would potentially create a risk of foreclosing the market for private healthcare providers, which depend on the aforementioned assets to provide their healthcare services.
On July 5, 2019 the AdC considered, based on the facts of the case, that the merger would likely create a negative impact on competition, with a particular focus on the market for the provision of healthcare services by private hospitals and healthcare clinics. Following this assessment, Fidelidade abandoned the merger and restored the management of the Saudeinveste Fund to its former management fund investment company.
The conductThe implementation of a notifiable merger transaction before a clearance decision issued by the AdC is a serious infringement, punishable with a fine not exceeding 10% of the aggregate turnover of the undertaking concerned in the financial year preceding the AdC’s fining decision.
The Portuguese Competition Act determines the obligation to notify a merger transaction to the AdC whenever any of the merger thresholds – parties’ market share and/or turnover - are met, together with a standstill obligation before the AdC issues its clearance decision.
Merger transactions should, as a general rule, be notified to the AdC after the closing of the parties’ agreement, but before its implementation.
In the event of doubt as to whether a merger is notifiable to the AdC or not, the pre-notification procedure is available to the parties, which is a confidential and cost free procedure.
The failure to notify a merger transaction impacts the AdC’s enforcement powers in merger control, that aims to ensure that no impediments to effective competition in the market are created or reinforced, with negative effects and often difficult to eliminate. For these reasons, the obligation to notify a merger ex-ante represents a fundamental pillar of the merger control regime and gun jumping is considered a serious infringement.
Fidelidade SGOIC demonstrated adequate cooperation with the AdC, both during the merger review procedure and during the gun-jumping investigation.
In determining the amount of the fine, the AdC took into account the fact that the parties, even though a posteriori, voluntarily notified the merger, as well as the fact that Fidelidade opted to abandon the transaction following the identification of competition concerns by the AdC, thus restoring the management of the Saudeinveste Fund to its former management fund investment company and, consequently, eliminating any of the identified concerns.
The decision to fine Fidelidade SGOIC was issued by the AdC on August 19th 2021.
This is the fourth decision, since 2014, by the AdC fining undertakings for gun-jumping.