AdC sanctions two companies for "gun-jumping"
Press Release 17/2021
The AdC – Portuguese Competition Authority has sanctioned, through two separate proceedings, SFI Group Gestión de Participaciones Minoritarias (SFI) and AOC Health GmbH (AOC Health), for implementing mergers before prior notification to the AdC (gun-jumping).
The sanctioned behavior
In both cases, the mergers should have been notified to the AdC by each of the undertakings prior to their implementation, since the notification thresholds foreseen in the Competition Law concerning market share were fulfilled (Article 37).
In the case of SFI, the infringement occurred in 2020, when it acquired White and Green Natural, a producer and distributor of plant-based drinks.
In the case of AOC Health, the failure to notify also occurred in 2020, when it acquired Stemlab, the owner of the Crioestaminal and Bebecord brands.
The companies cooperated with the AdC, both during the assessment of the mergers by AdC which were notified a posteriori and during the respective infringement proceedings, which are now concluded with the immediate payment of the fines imposed by the AdC, in the amounts of €60,000 (SFI) and €35,000 (AOC Health).
In setting the amount of the fines, the AdC took the cooperation of the companies into account, as well as the fact that the mergers in question were notified voluntarily, even though after the implementation.
The two companies used the settlement procedure foreseen in the Competition Law, which allows those involved in AdC investigations to benefit from a reduction of the fine by acknowledging liability for the infringement and waiving their right to litigate in court on the facts. This procedure allows for a simplification and celerity of procedures, thus being instrumental to enhance procedural efficiency and optimize the enforcement of competition law.
The Competition Law establishes the obligation of prior notification, to the AdC, of mergers that meet certain criteria related to market share and/or turnover of the companies involved in the transaction and imposes an obligation to suspend their implementation until a final clearance decision is obtained.
The lack of prior notification of mergers in cases where this is mandatory has given rise to five sanctioning decisions by the AdC since 2017, three of which in 2021.
October 21, 2021