EU Court of Justice dismisses Altice Europe’s action against Brussels, but reduces fine by €6.22 million

The Court of Justice of the European Union (CJEU) has reduced by €6.22 million the fine of almost €125 million that had been imposed by the European Commission on Altice in 2018. The amount thus falls to €118.28 million.

Brussels had sentenced the international group founded by Patrick Drahi to two fines of €62.25 million each, for considering that the company acquired the former PT Portugal without notifying the Commission, carrying out the transaction before obtaining regulatory approval. The deal that put Meo in the hands of Altice was made with Brazil’s Oi and was valued at €5.7 billion.

“Accordingly, by decision of April 24 2018, the Commission imposed on Altice a fine of €62 250 000 for having infringed the obligation to notify the concentration and a fine of €62 250 000 for failing to comply with the prohibition on implementing the concentration prior to its notification to and its clearance by the Commission. Altice brought an action seeking annulment of that decision, which the General Court has dismissed in part,” the CJEU explains in a statement.

The appeal decision is known more than three years after the opening of the case by Brussels and six years after the transaction between Altice and Oi. It also comes at a time when there are rumours of a possible sale of Altice’s business in Portugal: Last May, it became known that Altice had hired the bank Lazard to evaluate the sale of Altice Portugal.

Specifically, the CJEU rejected Altice’s argument that the European Commission intended to impose two fines for the same facts, as it considered that the two issues “are not redundant” and “do not infringe the principle of proportionality or the prohibition of double punishment.”

In addition, the European court found that “the preparatory clauses” of the contract for the purchase of PT Portugal provided Altice with “the possibility of exercising decisive influence” over the Portuguese company, “contrary to both the notification obligation under Article 4(1) of the Merger Regulation and the standstill obligation under Article 7(1) of that regulation”.

“The General Court concludes that those preparatory clauses gave Altice the possibility of exercising control over PT Portugal, by conferring on it the possibility of exercising decisive influence over the business of PT Portugal,” the CJEU concludes in that statement.

Not only did Altice have this possibility, but it ended up doing so, according to the CJEU. “the General Court confirms that Altice exercised decisive influence over PT Portugal,” it added.

However, the CJEU decided to reduce by 10% the amount of the fine applied in relation to the “infringement of the notification obligation laid down in Article 4(1) of the Merger Regulation”. The Court explains this decision by taking into account “the fact that, before the SPA was signed, Altice had informed the Commission of the transaction it was to undertake and that, immediately after that signing, it sent to the Commission a case team allocation request relating to its file.”