GC, 6th chamber, May 18, 2022, No T-609/19

THE GENERAL COURT (Sixth Chamber),

Judgment

I. Background to the dispute

1 The applicant, Canon Inc., is a multinational company specialising in the manufacture of imaging and optical products, including cameras, camcorders, photocopiers, steppers and computer printers. Since its acquisition of Toshiba Medical Systems Corporation (‘TMSC’), the applicant is also specialised in the manufacture of medical equipment.

2 TMSC, which is active in the development, manufacture and sale of medical equipment and the provision of related technical services, was, prior to its acquisition by the applicant, a wholly owned subsidiary of Toshiba Corporation (‘Toshiba’). Following that acquisition, TMSC was renamed ‘Canon Medical Systems Corporation’.

A. Acquisition by the applicant of TMSC

3 At the beginning of 2016, Toshiba experienced significant financial difficulties. In particular, based on its earnings forecasts, Toshiba considered that it was at risk of having to report negative results to shareholders for the 2015 financial year (ended 31 March 2016). As no public company of similar size to Toshiba had ever reported negative results to shareholders in the recent past in Japan, it was difficult to predict the impact of such an event on Toshiba’s business performance, financial condition and market value.

4 As a result, Toshiba initiated an accelerated bidding process for the sale of TMSC.

5 As a first step, on 19 February 2016, Toshiba proposed a transaction structure to bidders, referred to as the ‘80/20’ proposal.

6 In the context of the bidding process, each bidder made proposals that took into account Toshiba’s financial situation. In its bid, the applicant proposed a new transactional structure to Toshiba. The rationale for that new structure was that the sale of TMSC would be recognised as a capital contribution in Toshiba’s accounts by 31 March 2016 at the latest, but that the applicant would not formally acquire control until it had obtained the necessary clearances from the relevant competition authorities.

7 As a result of the new transactional structure proposed by the applicant, according to Toshiba, TMSC would no longer be a subsidiary of Toshiba for the purposes of United States Generally Accepted Accounting Principles (‘United States GAAP’) (recital 13 of the contested decision).

8 According to Toshiba, after examining the feasibility and effects of each bidder’s proposal, it considered that the applicant’s proposal was the most competitive and the only one in which the transfer of the full purchase price was not subject to merger control clearances (recital 14 of the contested decision).

9 The applicant’s acquisition of TMSC was publicly announced on 17 March 2016. On the same day, the applicant announced that it had entered into a share transfer agreement with Toshiba to acquire TMSC from Toshiba, and Toshiba and TMSC announced that Toshiba had agreed to sell TMSC to the applicant and that TMSC was no longer a subsidiary of the Toshiba group.

10 Following the applicant’s proposal, TMSC converted its 134 980 060 common shares and created new classes of shares in order to implement the transaction structure.

11 On 15 March 2016, TMSC’s articles of association were amended to include the new share classes and additional shares.

12 Firstly, TMSC created three categories of shares:

– Class A shares (voting shares),

– Class B shares (non-voting shares), and

– Class C shares (voting shares with a redemption option exercisable by TMSC).

13 Secondly, TMSC converted all of its common shares into Class C shares and created share options for the mandatory redemption of all Class C shares.

14 Thirdly, on 16 March 2016, TMSC converted the Class C shares and issued as consideration:

– 20 Class A shares,

– 1 Class B share, and

– 100 share options related to Class C shares.

15 The applicant’s offer consisted of a two-step transaction structure.

16 As a first step, on 17 March 2016, the applicant and Toshiba entered into a ‘Shares and Other Securities Transfer Agreement’, by which the applicant acquired the Class B non-voting share for 4 930 Japanese yen (JPY) (approximately EUR 40) and 100 Class C voting share options of TMSC for JPY 665 497 806 400 (approximately EUR 5 280 000 000), the right to vote not being exercisable until the share options had been exercised. On the same day, MS Holding, a securitisation vehicle created specifically for the purpose of the transaction on 8 March 2016, and Toshiba entered into an ‘Excluded Share Transfer Agreement’, whereby MS Holding acquired the remaining 20 Class A voting shares of TMSC for JPY 98 600 (approximately EUR 800). Those two transactions are jointly referred to as the ‘interim transaction’ in Commission Decision C(2019) 4559 final of 27 June 2019 imposing fines for failure to notify a concentration in breach of Article 4(1) of Regulation (EC) No 139/2004 and for implementing a concentration in breach of Article 7(1) of that regulation (Case M.8179 – Canon/Toshiba Medical Systems Corporation; ‘the contested decision’).

17 As a second step, on 19 December 2016, the applicant, after obtaining the last relevant merger clearance, exercised its 100 Class C share options to acquire the underlying voting shares of TMSC, while TMSC acquired the applicant’s Class B non-voting share for JPY 4 930 (approximately EUR 40) and the remaining 20 Class A voting shares of MS Holding for JPY 36 098 600 (approximately EUR 300 000). Those two transactions are jointly referred to in the contested decision as the ‘ultimate transaction’.

18 All of those transactions are referred to in the contested decision as a ‘concentration’.

B. Pre-notification phase

19 On 11 March 2016, the applicant sent the European Commission a team allocation request in respect of its plan to acquire sole control of TMSC within the meaning of Article 3(1)(b) of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (‘the EC Merger Regulation’) (OJ 2004 L 24, p. 1).

20 In an email dated 5 April 2016, the applicant sent the Commission the part of the Form CO relating to the structure of the proposed transaction as well as a short presentation describing the different stages of the transaction.

21 On 28 April 2016, the applicant submitted a first draft of the Form CO to the Commission. On 11 May 2016, the Commission sent the applicant several questions on the draft Form CO, including three on the structure of the transaction, to which the applicant replied on 27 May 2016.

C. Notification and decision authorising the concentration

22 On 12 August 2016, the applicant notified the Commission, pursuant to Article 4 of Regulation No 139/2004, of the acquisition of sole control of TMSC by the acquisition of 100% of its shares, in accordance with the normal merger control procedure. The applicant clarified that the notification was to be understood as covering the entire concentration, namely, the interim transaction and the ultimate transaction.

23 In the context of the assessment of the concentration, the Commission’s investigation did not reveal any indications that might raise competition law concerns. It is for that reason that the Commission adopted a clearance decision on 19 September 2016 pursuant to Article 6(1)(b) of Regulation No 139/2004 and Article 57 of the Agreement on the European Economic Area (EEA).

D. Administrative procedure and contested decision

24 On 18 March 2016, a few days after receiving the applicant’s team allocation request regarding its plan to acquire sole control of TMSC, the Commission was approached by an anonymous complainant.

25 On 11 May 2016, the Commission sent the applicant a request for information concerning the first draft of its notification form of 28 April 2016, in response to which the applicant submitted its observations.

26 On 29 July 2016, the Commission informed the applicant that it had opened an investigation which could lead to the imposition of fines under Article 14(2)(a) and (b) of Regulation No 139/2004 on account of possible breaches of the standstill obligation laid down in Article 7(1) of that regulation and the obligation to notify laid down in Article 4(1) of that regulation.

27 On 5 September 2016, the Commission received an additional submission from the applicant.

28 On 6 October 2016, a meeting was held between the Commission and the applicant.

29 By decision of 7 October 2016, adopted under Article 11(3) of Regulation No 139/2004, the Commission requested the applicant, TMSC and Toshiba to provide information and internal documents. The applicant and TMSC replied on 4 November 2016. Toshiba provided its replies between 4 November and 1 December 2016.

30 On 5 November 2016, the applicant sent a letter to the Commission concerning its observations on the meeting of 6 October 2016 and the decision of 7 October 2016.

31 Following emails from the Commission, Toshiba, TMSC and the applicant provided additional documents on 15 February, 24 February and 15 March 2017 respectively.

32 On 6 July 2017, pursuant to Article 18 of Regulation No 139/2004, the Commission sent the applicant a statement of objections, in which it reached the preliminary conclusion that the applicant had intentionally, or at least negligently, infringed Articles 4(1) and 7(1) of Regulation No 139/2004, and in which it stated that it was therefore considering the imposition of fines under Article 14(2) of that regulation.

33 On 15 March 2018, the applicant submitted written observations and requested a hearing.

34 On 3 May 2018 a hearing was held at which the applicant presented its arguments.

35 On 8 May 2018, the Commission sent the applicant an email containing questions which the applicant had been unable to answer during the hearing on 3 May 2018. The applicant submitted its responses on 24 May 2018.

36 On 11 June 2018, the Commission received additional information from the applicant. Furthermore, in response to the statement of objections, the applicant asked the Commission to close the infringement procedure in the light of the test set out by the Court of Justice in the judgment of 31 May 2018, Ernst & Young (C‑633/16, EU:C:2018:371).

37 On 30 November 2018, the Commission issued a supplementary statement of objections, in which it reached the preliminary conclusion that the applicant’s conduct constituted an infringement of Articles 4(1) and 7(1) of Regulation No 139/2004, also on the basis of the interpretation of the legal framework set out in the judgment of 31 May 2018, Ernst & Young (C‑633/16, EU:C:2018:371).

38 On 21 January 2019, the applicant submitted its responses to the supplementary statement of objections and requested a second hearing, which took place on 14 February 2019.

39 On 25 February 2019, the Commission sent the applicant an email containing questions which the applicant had been unable to answer during the hearing on 14 February 2019. The applicant submitted its responses on 13 March 2019.

40 On 3 April 2019, the applicant submitted to the Commission additional comments concerning the latter’s approach to the judgment of 31 May 2018, Ernst & Young (C‑633/16, EU:C:2018:371).

41 On 27 June 2019, the Commission adopted the contested decision.

42 The first four articles of the operative part of the contested decision are worded as follows:

‘Article 1

By failing to notify a concentration with a Union dimension prior to its implementation (on 17 March 2016) without express authorisation to do so by Article 7(2) of Regulation … No 139/2004 or by a decision taken pursuant to Article 7(3) of that regulation, [the applicant] has, at least negligently, breached Article 4(1) of that regulation.

Article 2

By implementing a concentration with a Union dimension (on 17 March 2016) before its clearance (on 19 September 2016), [the applicant] has, at least negligently, breached Article 7(1) of Regulation … No 139/2004.

Article 3

A fine of EUR 14 000 000 is hereby imposed on [the applicant] pursuant to Article 14(2)(a) of Regulation … No 139/2004 for the breach referred to in Article 1 of this decision.

Article 4

A fine of EUR 14 000 000 is hereby imposed on [the applicant] pursuant to Article 14(2)(b) of Regulation … No 139/2004 for the breach referred to in Article 2 of this decision.’

II. Procedure and forms of order sought

43 By application lodged at the Court Registry on 9 September 2019, the applicant brought the present action.

44 On 27 November 2019, the Commission filed the statement of defence.

45 By document lodged at the Court Registry on 14 January 2020, the Council of the European Union sought leave to intervene in the present proceedings in support of the form of order sought by the Commission.

46 By decision of 5 March 2020, the President of the Sixth Chamber of the General Court granted that leave. The Council lodged the statement of intervention on 24 April 2020 and the main parties filed their observations on it within the prescribed time limits.

47 The main parties lodged the reply and rejoinder on 18 March and 26 June 2020 respectively.

48 By letter of 28 July 2020, the applicant submitted a request for a hearing under Article 106(2) of the Rules of Procedure of the General Court.

49 The applicant claims that the Court should:

– annul the contested decision;

– in the alternative, cancel or substantially reduce the fines imposed;

– order the Commission to pay the costs.

50 The Commission contends that the Court should:

– dismiss the action;

– order the applicant to pay the costs.

51 The Council contends that the Court should reject in its entirety the plea of illegality raised in respect of Article 14(2)(a) and (b) of Regulation No 139/2004.

III. Law

52 In support of its action, the applicant raises three pleas in law, the first alleging that it did not infringe Articles 4(1) and 7(1) of Regulation No 139/2004, the second alleging infringement of Article 14 of Regulation No 139/2004 and the third alleging infringement of Article 18 of Regulation No 139/2004 and Article 48(2) of the Charter of Fundamental Rights of the European Union (‘the Charter’).

A. The first plea in law, alleging that the applicant did not infringe Articles 4(1) and 7(1) of Regulation No 139/2004

53 As a preliminary point, it is important to note that, in recital 99 of the contested decision, the Commission summarises its approach to the finding of infringement of Articles 4(1) and 7(1) of Regulation No 139/2004 as follows:

‘…

a) The Interim Transaction and the Ultimate Transaction together constituted a single concentration within the meaning of Article 3 of [Regulation No 139/2004] and the case-law of the Union Courts, consisting in the acquisition of control over TMSC by [the applicant] (see Section 4.1).

b) As part of a single concentration, the Interim and the Ultimate Transactions were inherently closely connected. Indeed, the Interim Transaction was a necessary step to achieve a change in control over TMSC, presenting a direct functional link with the implementation of the acquisition of control by [the applicant] over TMSC. For those reasons, the Interim Transaction contributed (at least in part) to the change in control of TMSC within the meaning of the Ernst & Young judgment. By carrying out the Interim Transaction, [the applicant] partially implemented the single concentration consisting in the acquisition of control over TMSC by [it] (see Section 4.2).

c) Because it partially implemented the Concentration consisting in the acquisition of control over TMSC prior to notification to and clearance by the Commission, [the applicant] breached Articles 4(1) and 7(1) of [Regulation No 139/2004] (see Section 4.3).’

54 The first plea in law is divided into four parts. The first part alleges that the interim transaction does not constitute an acquisition of control by the applicant. The second part alleges the absence of a partial implementation in breach of Article 4(1) and Article 7(1) of Regulation No 139/2004. The third part alleges manifest errors in the application of the concept of ‘partial implementation’ of a ‘single concentration’. The fourth part alleges that the ex ante merger control procedure was never circumvented.

1. The first part, alleging that the interim transaction does not constitute an acquisition of control

55 In the context of the first part, the applicant claims that the interim transaction did not result in an acquisition of control by it and cannot, therefore, constitute an instance of the early implementation of a concentration.

56 That first part is divided into two subsections. In the context of the first subsection, the applicant claims that there is an early implementation of a concentration only in the event of an acquisition of control. In the context of the second subsection, the applicant claims that previous case-law confirms that the change of control is the only relevant criterion.

(a) The first subsection, according to which the early implementation of a concentration requires the acquisition of control

57 The applicant claims that it follows from the wording of Articles 4(1) and 7(1) of Regulation No 139/2004 that there is early implementation of a concentration only where control is acquired. It is common ground that the concept of ‘concentration’ used in those provisions must be defined in the light of Article 3 of that regulation, according to which concentrations are acquisitions which lead to a lasting change in direct or indirect control. Furthermore, the applicant refers to paragraph 44 et seq. of the judgment of 31 May 2018, Ernst & Young (C‑633/16, EU:C:2018:371), according to which the early implementation of a concentration is closely linked to the concept of a concentration within the meaning of Article 3 of Regulation No 139/2004, which requires an acquisition of control, to paragraph 46 of that judgment, according to which only ‘operations contributing to a lasting change in the control of the target undertaking’ fall within the scope of Article 7(1) of that regulation, and to paragraphs 49 and 60 of that judgment, according to which transactions do not contribute to a lasting change of control when they do not have a ‘direct functional link with [the] implementation’ of the concentration, namely, when they do not ‘as such’ have a link with the change of control, that criterion excluding all transactions which have a ‘conditional link with the concentration’ in that they are ‘ancillary or preparatory’ to its implementation. In recital 134 of the contested decision, the Commission expressly acknowledges that the applicant did not acquire control over TMSC before the Commission’s clearance of 19 September 2016. Furthermore, the applicant refers to the judgment of 6 July 2010, Aer Lingus Group v Commission (T‑411/07, EU:T:2010:281), according to which the standstill obligation is intended to prevent the Commission from finding itself in a situation where an incompatibility decision would need to be supplemented by a dissolution decision designed to put an end to the acquisition of control that has taken place even before the Commission has taken a decision on its competitive effects, and concludes that its scope should not extend beyond what is necessary to ensure that the restructuring of undertakings does not lead to lasting harm to competition. Finally, the Commission’s investigation of the transaction was never jeopardised in any sense, given that the applicant acquired control over TMSC only after obtaining all the clearances from the relevant competition authorities, including that from the Commission.

58 The Commission contests the applicant’s arguments.

59 It is common ground between the parties that TMSC was not controlled by the applicant during the interim transaction.

60 It must therefore be determined whether, as the applicant maintains, there can only be an early implementation of a concentration if there is control of the target undertaking.

61 In that regard, it should be noted that a concentration within the meaning of Article 7(1) of Regulation No 139/2004 arises as soon as the merging parties implement operations contributing to a lasting change in the control of the target undertaking (judgments of 31 May 2018, Ernst & Young, C‑633/16, EU:C:2018:371, paragraph 46, and of 4 March 2020, Marine Harvest v Commission, C‑10/18 P, EU:C:2020:149, paragraph 50).

62 The fact that any partial implementation of a concentration falls within the scope of that article is thus in accordance with the requirement of ensuring effective control of concentrations. If the merging parties were prohibited from implementing a concentration by means of a single transaction, but it were open to them to achieve the same result by successive partial operations, that would reduce the efficiency of the prohibition in Article 7 of Regulation No 139/2004 and would thus put at risk the prior nature of the control required by that regulation and the pursuit of its objectives (judgment of 31 May 2018, Ernst & Young, C‑633/16, EU:C:2018:371, paragraph 47).

63 It is in the same vein that recital 20 of that regulation states that it is appropriate to treat as a single concentration transactions that are closely connected in that they are linked by condition or take the form of a series of transactions in securities taking place within a reasonably short period of time (judgment of 31 May 2018, Ernst & Young, C‑633/16, EU:C:2018:371, paragraph 48).

64 However, where such transactions, despite having been carried out in the context of a concentration, are not necessary to achieve a change of control of an undertaking concerned by that concentration, they do not fall within the scope of Article 7 of Regulation No 139/2004. Those transactions, although they may be ancillary or preparatory to the concentration, do not present a direct functional link with its implementation, so that their implementation is not, in principle, likely to undermine the efficiency of the control of concentrations (judgment of 31 May 2018, Ernst & Young, C‑633/16, EU:C:2018:371, paragraph 49).

65 Finally, the Court concluded that Article 7(1) of Regulation No 139/2004 must be interpreted as meaning that a concentration is implemented only by a transaction which, in whole or in part, in fact or in law, contributes to the change in control of the target undertaking (judgment of 31 May 2018, Ernst & Young, C‑633/16, EU:C:2018:371, paragraph 59).

66 Since Article 7(1) and Article 4(1) of Regulation No 139/2004 are two provisions concerning the concept of ‘implementation of a concentration’, it must be considered that what the Court of Justice, dealing with a reference for a preliminary ruling under Article 267 TFEU in the case which gave rise to the judgment of 31 May 2018, Ernst & Young (C‑633/16, EU:C:2018:371), stated in relation to the first of those provisions is also true of the second.

67 The Commission is therefore right to argue that it follows from the judgment of 31 May 2018, Ernst & Young (C‑633/16, EU:C:2018:371), that the Court distinguished between the concepts of ‘concentration’ and ‘implementation of a concentration’.

68 In that regard, it follows from paragraph 45 of the judgment of 31 May 2018, Ernst & Young (C‑633/16, EU:C:2018:371), that, in accordance with Article 3 of Regulation No 139/2004 in which the concept of concentration is defined, a concentration is deemed to have been implemented ‘where a change of control on a lasting basis’ takes place, whereas it follows from paragraph 46 of that judgment that the ‘concentration’ may take place ‘as soon as the merging parties implement operations contributing to a lasting change in the control of the target undertaking’, namely, possibly before the acquisition of control of the target undertaking.

69 That conclusion is supported by paragraph 59 of the judgment of 31 May 2018, Ernst & Young (C‑633/16, EU:C:2018:371), from which it follows that, for there to be a concentration within the meaning of Articles 4(1) and 7(1) of Regulation No 139/2004, it is sufficient for a transaction, in whole or in part, in fact or in law, to contribute to the change of control of the target undertaking.

70 Thus, it follows from the judgment of 31 May 2018, Ernst & Young (C‑633/16, EU:C:2018:371), that the concept of ‘implementation of a concentration’, as provided for in Articles 4(1) and 7(1) of Regulation No 139/2004, is not limited to the situation in which the ultimate purchaser acquires control of the target undertaking, but also covers any transaction which ‘contributes’ to such a change in control.

71 In that regard, the applicant’s argument that the Court, in the judgment of 31 May 2018, Ernst & Young (C‑633/16, EU:C:2018:371), excluded, in general terms, ‘all acts that have a “conditional link with the concentration” in the way that they are “ancillary or preparatory” for its implementation’ is wrong, since what the Court stated, in paragraph 49 of that judgment (see paragraph 64 above), is that transactions which were not necessary to achieve a change of control and which therefore, even if they could be ancillary or preparatory to the concentration, did not have a direct functional link with the implementation of the concentration did not fall within the scope of Article 7 of Regulation No 139/2004. It follows from that that the transactions fall within the concept of ‘implementation of a concentration’, even if that implementation is partial within the meaning of paragraphs 47 and 51 of that judgment, if they contribute, in whole or in part, to the change of control of the target undertaking.

72 Furthermore, the conclusion set out in paragraph 69 above cannot be called into question by the applicant’s argument in so far as it makes a literal interpretation of an extract from Article 4(1) of Regulation No 139/2004. The applicant refers to the situation in which concentrations must be notified ‘following … the acquisition of a controlling interest’. That regulation sets out in this paragraph various possible cases of acquisition of control and specifies when, depending on the case, the notification must take place. As the Commission points out, the reference to the ‘acquisition of a controlling interest’ may relate to situations governed by Article 7(2) of Regulation No 139/2004: even if not subject to the suspensory condition of merger clearance, the implementation of takeover bids and securities transactions could lead to the acquisition of a controlling interest without infringing Article 7(1) of Regulation No 139/2004, subject to compliance with the requirements set out in paragraph 2 of that provision. However, the applicant does not claim that the present case falls within the scope of Article 7(2) of that regulation.

73 Therefore, contrary to the applicant’s submission, the criterion used in the judgment of 31 May 2018, Ernst & Young (C‑633/16, EU:C:2018:371), to determine whether Article 7(1) of Regulation No 139/2004 has been infringed is not whether there has been an acquisition of control of the target undertaking, but, as the Commission maintains, whether the transaction in question contributed, in whole or in part, in fact or in law, to the change of control of that undertaking. Such a criterion is applicable, by analogy, in relation to Article 4(1) of Regulation No 139/2004.

74 As regards the applicant’s interpretation of the judgment of 6 July 2010, Aer Lingus Group v Commission (T‑411/07, EU:T:2010:281), according to which only transactions which require dissolution measures amount to acts which undermine the effectiveness of the merger control system, it must be noted that that interpretation is incorrect. What the General Court stated in that judgment is that, first, without an acquisition of control, the Commission did not have the power to dissolve a concentration (judgment of 6 July 2010, Aer Lingus Group v Commission, T‑411/07, EU:T:2010:281, paragraph 66) and that, secondly, the acquisition of a shareholding which did not, as such, confer control within the meaning of Article 3 of Regulation No 139/2004 could fall within the scope of Article 7 of that regulation (judgment of 6 July 2010, Aer Lingus Group v Commission, T‑411/07, EU:T:2010:281, paragraph 83). In other words, the Court stated that, while the acquisition of control was necessary for the Commission to exercise its power to dissolve the concentration, such acquisition of control was not necessary for a transaction to fall within the scope of Article 7 of Regulation No 139/2004.

75 Finally, as regards the applicant’s argument that the Commission’s investigation of the transaction was at no time jeopardised in any sense, since it acquired control over TMSC only after obtaining all the clearances of the competition authorities concerned, it is incorrect.

76 The applicant considers that ‘concentrations are defined as acquisitions resulting in a lasting change of direct or indirect control’ and, therefore, that as long as control is not acquired, there is no early implementation of the concentration.

77 Therefore, the applicant confuses the concepts of ‘implementation’ and ‘acquisition’, which are two distinct concepts in Regulation No 139/2004.

78 The term ‘implementation’ relates to the concentration (or transaction as referred to in Article 7(4) of Regulation No 139/2004) whereas the term ‘acquisition’ relates to control.

79 Those two terms cannot be confused. The ‘implementation’ of the concentration may be long term, which explains the notions of partial implementation and single concentration, whereas the ‘acquisition’ of control may not be long term. Either control is acquired, as soon as an entity has the possibility to exercise decisive influence over the target company, or it is not acquired. The notion of acquisition of control cannot therefore cover a ‘partial’ acquisition. Therefore, an alleged ‘partial control’ cannot be a condition for a partial implementation of the concentration, contrary to what the applicant maintains.

80 Therefore, in order to be effective, the Commission’s investigation must be carried out not only before the acquisition of control, but also before the implementation, even partial, of the concentration. As already noted in paragraph 62 above, if the merging parties were prohibited from implementing a concentration by means of a single transaction, but it were open to them to achieve the same result by successive partial operations, that would reduce the efficiency of the prohibition in Article 7 of Regulation No 139/2004 and would thus put at risk the prior nature of the control required by that regulation and the pursuit of its objectives (judgment of 31 May 2018, Ernst & Young, C‑633/16, EU:C:2018:371, paragraph 47).

81 Therefore, the first subsection of the first plea in law must be rejected.

(b) The second subsection, according to which the previous case-law confirms that the change of control is the only relevant criterion

82 The applicant claims that the contested decision disregards the case-law of the Courts of the European Union.

83 Therefore, firstly, the applicant refers to paragraph 25 of the judgment of 6 July 2010, Aer Lingus Group v Commission (T‑411/07, EU:T:2010:281), according to which a concentration is implemented only when one undertaking acquires control of another, that is to say, the possibility of exercising decisive influence, and to paragraph 85 of that judgment, according to which, in the absence of the acquisition of actual control, the participation at issue cannot be equated with a concentration which has already been implemented. Secondly, the applicant claims that, in the judgment of 13 September 2010, Éditions Odile Jacob v Commission (T‑279/04, not published, EU:T:2010:384), the General Court accepted a parking structure because no control had been transferred before clearance was granted. The Court confirmed in that judgment that the transfer of shares to a company formed for the sole purpose of receiving them does not lead to an acquisition of control by the ultimate acquirer and therefore falls outside the scope of Article 7(1) of Regulation No 139/2004. Thirdly, according to the applicant, in the judgment of 26 October 2017, Marine Harvest v Commission (T‑704/14, EU:T:2017:753), the Court rejected, in paragraph 148 et seq. of that judgment, relating to recital 20 of Regulation No 139/2004, the idea that, in the event of the early implementation of a concentration, two transactions should be classified as a ‘single concentration’ solely on the ground that they are closely related. In that respect, it follows from paragraph 44 of the judgment of 4 March 2020, Marine Harvest v Commission (C‑10/18 P, EU:C:2020:149), that recital 20 of Regulation No 139/2004 does not constitute a legal basis for concluding that a ‘single concentration’ exists. The position expressed by the Commission in its defence that a ‘single economic project’ of two transactions can lead to a ‘single concentration’ should therefore be rejected. In addition, the applicant refers to paragraph 128 of the judgment of 26 October 2017, Marine Harvest v Commission (T‑704/14, EU:T:2017:753), according to which the relevant test is the time at which the acquisition of control took place. Furthermore, the applicant claims that the concept of a ‘single concentration’ cannot be relied on to establish the early implementation of a concentration and points out that the Court stated, in paragraph 151 of that judgment, that where those transactions, taken together, are not sufficient to transfer control of the target undertaking, it makes ‘no sense’ to describe them as a single concentration. Finally, the Commission itself argued in paragraph 105 of Commission Decision C(2014) 5089 final of 23 July 2014 imposing a fine for the implementation of a concentration in violation of Articles 4(1) and 7(1) of Regulation No 139/2004 (Case COMP/M.7184 – Marine Harvest/Morpol), that the question of whether those two steps were part of the same transaction, namely, the existence of a ‘single concentration’, was ‘irrelevant’ under Article 7(1) of Regulation No 139/2004.

84 The Commission contests the applicant’s arguments.

85 Firstly, it should be noted that paragraph 25 of the judgment of 6 July 2010, Aer Lingus Group v Commission (T‑411/07, EU:T:2010:281), does not concern the position of the Court, but relates the reasoning of the Commission in the decision in that case. As to paragraph 85 of that judgment, while the Court did state that, in the absence of an actual acquisition of control, the disputed shareholding in that case could not ‘be assimilated to a “concentration” which has “already been implemented”’, it cannot be inferred from that statement that a concentration cannot be partially implemented by a transaction contributing to a change of control.

86 Furthermore, as noted in paragraph 74 above, the Court stated in the judgment of 6 July 2010, Aer Lingus Group v Commission (T‑411/07, EU:T:2010:281, paragraph 83), that the acquisition of a shareholding which did not, as such, confer control within the meaning of Article 3 of Regulation No 139/2004 could fall within the scope of Article 7 of that regulation. It thus follows from that judgment of the Court, delivered prior to the judgment of 31 May 2018, Ernst & Young (C‑633/16, EU:C:2018:371), that the implementation of a concentration should not necessarily be interpreted as an acquisition of control.

87 Consequently, the judgment of 6 July 2010, Aer Lingus Group v Commission (T‑411/07, EU:T:2010:281), does not preclude the prohibition laid down in Article 7(1) of Regulation No 139/2004 from also covering partial implementation, that is to say, transactions which do not, as such, transfer control.

88 Secondly, as regards the judgment of 13 September 2010, Éditions Odile Jacob v Commission (T‑279/04, not published, EU:T:2010:384), the conclusion drawn by the applicant, namely, that the parking of shares in a company set up for the sole purpose of holding them did not lead to an acquisition of control by the ultimate purchaser and therefore does not fall within the scope of Article 7(1) of Regulation No 139/2004, must be rectified by putting it into context.

89 First, the case which gave rise to the judgment of 13 September 2010, Éditions Odile Jacob v Commission (T‑279/04, not published, EU:T:2010:384), and the present case are not fully comparable. In the case which gave rise to the judgment of 13 September 2010, Éditions Odile Jacob v Commission (T‑279/04, not published, EU:T:2010:384), the applicant disputed that the parking structure fell within the scope of Article 3(5)(a) of Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings (OJ 1989 L 395, p. 1), whereas, in the present case, the applicant does not claim that the parking structure at issue falls within such an exception.

90 Since the two structures are different, the conclusions drawn with regard to the first cannot be generally extended to the second.

91 Secondly, in the case which gave rise to the judgment of 13 September 2010, Éditions Odile Jacob v Commission (T‑279/04, not published, EU:T:2010:384), as the Commission pointed out in paragraph 175 of the contested decision, and as the Court of Justice, hearing the appeal, had noted, the applicant’s action in that case sought solely the annulment of the contested decision by which the Commission had declared the concentration at issue compatible with the common market (judgment of 6 November 2012, Éditions Odile Jacob v Commission, C‑551/10 P EU:C:2012:681, paragraph 36). The issue at stake thus concerned the legality of the Commission’s decision authorising the concentration, and not the question of the early implementation of concentrations by means of a parking structure. For that reason, the Court of Justice noted that, in order for the General Court to rule on the legality of the contested decision, it was not necessary to examine the question whether Lagardère SCA had acquired sole or joint control with NBP Bank of the target assets, through the parking transaction at issue, and that the findings of the General Court on that question were therefore to be regarded as superfluous (judgment of 6 November 2012, Éditions Odile Jacob v Commission, C‑551/10 P, EU:C:2012:681, paragraph 40).

92 Furthermore, in any event, in its action before the General Court, the applicant in that case argued that the holding of the target assets gave the ultimate purchaser, as soon as they were acquired by the holding company, the possibility of exercising decisive influence over the business connected with those assets, in that that holding gave the ultimate purchaser, in respect of all or part of the target assets, rights of ownership or use within the meaning of Article 3(3)(a) of Regulation No 4064/89, as amended by Council Regulation (EC) No 1310/97 of 30 June 1997 (OJ 1997 L 180, p. 1) (judgment of 13 September 2010, Éditions Odile Jacob v Commission, T‑279/04, not published, EU:T:2010:384, paragraph 119).

93 The applicant in that case had thus isolated the transaction leading to the acquisition of the target assets by the holding company and argued that that company had already led to an acquisition of control.

94 In that context, the Court stated that, since the holding of the target assets could not, in that case, be regarded as a concentration within the meaning of Article 3(1)(b) of Regulation No 4064/89, the prohibition on the parties to such a transaction, by Article 7(1) of Regulation No 4064/89, from implementing it before it was notified and declared compatible with the common market could not therefore have been infringed (judgment of 13 September 2010, Éditions Odile Jacob v Commission, T‑279/04, not published, EU:T:2010:384, paragraph 171).

95 That statement by the Court was thus only made in response to the applicant’s allegation that the merger clearance decision was invalid, inter alia, because the ultimate purchaser, by means of a parking transaction, acquired either sole or joint control of the target assets as soon as they were acquired by the holding company (indirectly but wholly owned by NBP Bank), without prior notification of the concentration.

96 The Court therefore did not consider whether the acquisition of the target assets by the holding company constituted, as in the present case, the partial implementation of a single concentration, but whether that acquisition, carried out within the framework of a parking structure, had, as such, transferred control to the purchaser.

97 Third, as regards the judgment of 26 October 2017, Marine Harvest v Commission (T‑704/14, EU:T:2017:753), at the outset, it should be noted that the main parties are in dispute as to what criterion was used in the contested decision to characterise the early implementation of a concentration.

98 The applicant considers that the Commission, in the contested decision, found that it was sufficient to establish that the interim and ultimate transactions constituted a single concentration, whereas the appropriate test would have been to assess whether the interim transaction enabled it to acquire control of TMSC.

99 In that regard, it should be noted that, as is apparent from recital 99 of the contested decision (see paragraph 53 above), the Commission did not consider it sufficient to establish that the interim transaction and the ultimate transaction constituted a single concentration, but noted, firstly, that the interim transaction and the ultimate transaction together constituted a single concentration, secondly, that the interim transaction had contributed in part to the change of control of TMSC within the meaning of the judgment of 31 May 2018, Ernst & Young (C‑633/16, EU:C:2018:371), and that, by proceeding with that interim transaction, the applicant had partially completed the single concentration consisting of the acquisition of control of TMSC by the applicant and, thirdly, that that partial implementation, prior to the notification to the Commission, had infringed Articles 4(1) and 7(1) of Regulation No 139/2004.

100 As regards the applicant’s reference to paragraph 148 et seq. of the judgment of 26 October 2017, Marine Harvest v Commission (T‑704/14, EU:T:2017:753), contrary to the applicant’s contention, the General Court did not reject the idea that, in the event of the early implementation of a concentration, two transactions should be classified as a ‘single concentration’ solely on the ground that they were closely related, since it merely stated that Regulation No 139/2004 did not provide an exhaustive definition of the conditions under which two transactions constituted a single concentration (judgment of 26 October 2017, Marine Harvest v Commission, T‑704/14, EU:T:2017:753, paragraph 150). As regards paragraph 44 of the judgment of 4 March 2020, Marine Harvest v Commission (C‑10/18 P, EU:C:2020:149), to which the applicant also refers, the Court of Justice simply states that it cannot validly be inferred from the mere wording of recital 20 of Regulation No 139/2004 that the concept of a ‘single concentration’ cannot be interpreted in accordance with the provisions of that regulation. It cannot therefore be inferred from that paragraph that, in that judgment, the Court of Justice rejects the Commission’s approach that a ‘single economic project’ of two transactions can lead to a ‘single concentration’.

101 Thus, as the Commission points out, neither the General Court nor the Court of Justice questioned the fact that two transactions could lead to a single transaction.

102 In that regard, without being contradicted by the Court of Justice, the General Court noted, in paragraph 90 of the judgment of 26 October 2017, Marine Harvest v Commission (T‑704/14, EU:T:2017:753), that the Commission had, in several decisions, relied on the concept of a ‘single concentration’ and that the General Court had endorsed that concept, inter alia, in the judgment of 23 February 2006, Cementbouw Handel & Industrie v Commission (T‑282/02, EU:T:2006:64).

103 As regards the reference to paragraph 128 of the judgment of 26 October 2017, Marine Harvest (T‑704/14, EU:T:2017:753), it should be pointed out that that case concerned the application of Article 7(2) of Regulation No 139/2004 to a series of transactions, where it was not disputed that control of the target undertaking had already been acquired in the first transaction. It was therefore in that context that the Court concluded that, where the acquisition of de facto sole control of the target undertaking took place by means of a single first transaction, the subsequent transactions by which the acquirer obtained additional shares in that undertaking were no longer relevant to the acquisition of control (judgment of 26 October 2017, Marine Harvest v Commission, T‑704/14, EU:T:2017:753, paragraph 128). Therefore, that conclusion cannot have the consequence that early implementation can only take place in the event of a change of control at the time of the first transaction in the context of a single concentration such as in the present case.

104 As regards the reference to paragraph 151 of the judgment of 26 October 2017, Marine Harvest (T‑704/14, EU:T:2017:753), it should be noted that the quotation produced by the applicant is inaccurate, since it is incomplete. It would make ‘no sense’ in that paragraph, according to the Court, to consider that all transactions which are subject to a conditional link or take the form of a series of securities transactions carried out within a reasonably short period of time should be treated as a single concentration, even where those transactions, taken together, would not be sufficient in order to transfer control of the target undertaking (judgment of 26 October 2017, Marine Harvest v Commission, T‑704/14, EU:T:2017:753, paragraph 151). Therefore, by that paragraph, the Court simply emphasised that only transactions which, taken together, transfer control can constitute a ‘single concentration’.

105 In the present case, in the contested decision, the Commission does not maintain that the interim transaction alone was sufficient to transfer control of TMSC to the applicant. In the contested decision, the Commission concluded that it was the ultimate transaction, which constituted a single concentration together with the interim transaction, which transferred control of TMSC to the applicant.

106 Finally, the applicant’s argument referring to the Commission’s position expressed in paragraph 105 of the decision in the Marine Harvest v Morpol case is inoperative, since that case did not involve the acquisition of a target undertaking by means of a parking structure as in the present case, but a situation in which the Commission had concluded that Marine Harvest ASA had acquired control of Morpol ASA through a single purchase of 48.5% of Morpol’s shares, and not through multiple partial transactions involving assets ultimately constituting a single economic entity (judgment of 4 March 2020, Marine Harvest v Commission, C‑10/18 P, EU:C:2020:149, paragraph 29).

107 It follows from all the foregoing that the second subsection of the first plea in law must be rejected, as must the first part of that plea in law in its entirety.

2. The second plea in law, alleging lack of partial implementation in breach of Articles 4(1) and 7(1) of Regulation No 139/2004

108 It should be noted that, in Section 4.1 of the contested decision, the Commission concluded that the interim and ultimate transactions together constituted a single concentration, as ‘they form part of a single economic project through which [the applicant] acquired control over TMSC form Toshiba’ (recital 101 of the contested decision). In reaching that conclusion, the Commission relied on three elements. Firstly, the interim transaction was only carried out in view of the ultimate transaction (Section 4.1.1 of the contested decision). Secondly, the sole purpose of MS Holding was to facilitate the acquisition of control of TMSC by the applicant (Section 4.1.2). Thirdly, the applicant was the only party able to determine the identity of the ultimate purchaser of TMSC and assumed the economic risk of the entire transaction from the time of the interim transaction (Section 4.1.3).

109 As a preliminary point, it should be noted that it is immaterial whether the acquisition, direct or indirect, of control of one or more undertakings was effected in one or more stages by means of one or more transactions, provided that the result achieved constitutes a single concentration (see, to that effect, judgment of 23 February 2006, Cementbouw Handel & Industrie v Commission, T‑282/02, EU:T:2006:64, paragraph 104).

110 It is also immaterial whether the parties, when notifying a concentration to the Commission, plan to enter into two or more transactions or whether they have already entered into such transactions prior to notification. It is for the Commission, in any event, to assess whether those transactions have a unitary character such that they constitute a single concentration within the meaning of Article 3 of Regulation No 139/2004 (judgment of 23 February 2006, Cementbouw Handel & Industrie v Commission, T‑282/02, EU:T:2006:64, paragraph 105).

111 Such an approach seeks to identify, in accordance with circumstances of fact and of law specific to each case and with a concern to ascertain the economic reality underlying the transactions, the economic aim pursued by the parties, by examining, when faced with a number of legally distinct transactions, whether the undertakings concerned would have been inclined to conclude each transaction in isolation or whether, on the contrary, each transaction constitutes only an element of a more complex operation, without which it would not have been concluded by the parties (judgment of 23 February 2006, Cementbouw Handel & Industrie v Commission, T‑282/02, EU:T:2006:64, paragraph 106).

112 In other words, in order to determine the unitary nature of the transactions in question, it is necessary, in each individual case, to ascertain whether those transactions are interdependent, in such a way that one transaction would not have been carried out without the other (judgment of 23 February 2006, Cementbouw Handel & Industrie v Commission, T‑282/02, EU:T:2006:64, paragraph 107).

113 That approach is intended, first, to ensure that undertakings notifying a concentration benefit from legal certainty for all the transactions which implement that concentration and, secondly, to enable the Commission to exercise effective control over concentrations which are likely to significantly impede effective competition in the common market or in a substantial part of it. Those two aims are, moreover, the main objective of Regulation No 139/2004 (see judgment of 23 February 2006, Cementbouw Handel & Industrie v Commission, T‑282/02, EU:T:2006:64, paragraph 108 and the case-law cited).

114 It follows that a concentration, within the meaning of Article 3(1) of Regulation No 139/2004, may be deemed to arise even in the case of a number of formally distinct legal transactions, provided that those transactions are interdependent in such a way that none of them would be carried out without the others and that the result consists in conferring on one or more undertakings direct or indirect economic control over the activities of one or more other undertakings (judgment of 23 February 2006, Cementbouw Handel & Industrie v Commission, T‑282/02, EU:T:2006:64, paragraph 109).

115 It is in particular in the light of that case-law that the five complaints put forward by the applicant in the form of five subsections must be examined, according to which, firstly, the fact that ‘the interim transaction was only undertaken in view of the ultimate transaction’ is irrelevant and is not established to the requisite legal standard by the Commission, secondly, the sole purpose of MS Holding was not to ‘facilitate the acquisition by the applicant of control of TMSC’, thirdly, the alleged power to determine the identity of the ultimate purchaser and the economic risks is irrelevant, fourthly, the conditions for ‘partial implementation’ within the meaning of the judgment of 31 May 2018, Ernst & Young (C‑633/16, EU:C:2018:371), are not fulfilled and, fifthly, the interim transaction did not ‘contribute to a lasting change of control’ over TMSC within the meaning of the judgment of 31 May 2018, Ernst & Young (C‑633/16, EU:C:2018:371).

(a) The first subsection, according to which the fact that the ‘interim transaction was only undertaken in view of the ultimate transaction’ is irrelevant and is not established by the Commission to the requisite legal standard

116 The applicant claims that the Commission’s finding in paragraph 4.1.1 of the contested decision that ‘the interim transaction was only undertaken in view of the ultimate transaction’ cannot lead to the conclusion that there is a single concentration and submits that it is clear from paragraph 35 of the Commission Consolidated Jurisdictional Notice under Council Regulation [No 139/2004] on the control of concentrations between undertakings (‘the CJN’) that it is not sufficient for one transaction to be undertaken in anticipation of another in order for two transactions to be sufficiently linked within the meaning of that paragraph. For them to be sufficiently linked, the CJN would require the presence of ‘an agreement on the future onward sale’ whereby ‘the interim buyer generally acquires the shares “on behalf of” the ultimate acquirer’. In the present case, MS Holding and the applicant did not enter into such an agreement and MS Holding did not act on behalf of the applicant.

117 The Commission contests the applicant’s arguments.

118 As regards the question concerning the relevance of whether the interim transaction was undertaken only with a view to the ultimate transaction, the Commission is right to note, first, that the contested decision does not conclude that there is a single concentration on the basis of that finding alone and, secondly, that, in accordance with the judgment of 23 February 2006, Cementbouw Handel & Industrie v Commission (T‑282/02, EU:T:2006:64), it is a relevant factor for establishing the economic purpose pursued by the parties (see, in paragraph 111 above, the considerations set out in paragraph 106 of that judgment) and for assessing whether the interim and ultimate transactions were interdependent, so that one would not have been carried out without the other (see, in paragraph 112 above, the considerations set out in paragraph 107 of that judgment).

119 Furthermore, the applicant’s argument concerning the irrelevance of that element is not supported by the assertion that that element does not demonstrate the existence of an agreement whereby MS Holding would acquire TMSC ‘on behalf’ of the applicant, as allegedly required by paragraph 35 of the CJN. As the Commission noted in recital 114 of the contested decision, paragraph 35 of the CJN states that ‘the interim buyer generally acquires shares “on behalf of” the ultimate acquirer’. Consequently, the CJN does not require that an interim purchaser necessarily act on behalf of the ultimate purchaser in order for a parking transaction to be considered to be a single concentration.

120 As regards the question whether the fact that the interim transaction was undertaken only with a view to the ultimate transaction was established to the requisite legal standard by the Commission in the contested decision, it is only in the context of the other subsections below that the applicant develops its arguments, which will therefore be examined in the context of those subsections.

(b) The second subsection, according to which the sole purpose of MS Holding was not to ‘facilitate the acquisition by the applicant of control over TMSC’

121 According to Section 4.1.2 of the contested decision, MS Holding was created for the sole purpose of facilitating the applicant’s acquisition of control of TMSC.

122 According to recital 118 of the contested decision, the transaction agreements and various internal documents of the applicant show that, from the outset, MS Holding was intended to act exclusively as an interim purchaser and that its sole purpose was to facilitate the acquisition by the applicant of control over TMSC. The Commission stated that that was demonstrated, first, by the fact that the applicant proposed the creation of MS Holding and actually participated in it, including the design of its corporate structure and, secondly, by the absence of a genuine economic interest on the part of MS Holding in TMSC, beyond its role as interim purchaser for which it was remunerated at a fixed price.

123 Those two grounds are contested by the applicant, which raises five objections to them.

(1) The fact that the development of the transaction was directed by Toshiba and the need to achieve a significant capital gain by the end of March 2016

124 The applicant claims that, contrary to the Commission’s assertions in recital 107 et seq. of the contested decision, it was not it, but Toshiba, which developed and proposed the holding structure for the transaction, in order to allow for the rapid disposal of TMSC and the immediate recording of a capital gain by Toshiba, while complying with all the applicable merger control regimes. The applicant thus points out that Toshiba initially proposed the ‘80/20 structure’, referred to in recital 10 of the contested decision, and that the statement that the applicant suggested reconsidering that proposal is incorrect, since Toshiba realised that that structure did not meet its needs. Toshiba was the ‘driving force’ behind the operating structure, a structure which did not benefit the applicant and did not serve its interests. The various factors mentioned in the contested decision are therefore irrelevant. Thus, the fact that MS Holding did not yet exist when the bidding process was launched by Toshiba is irrelevant, since it is not uncommon for legal entities to be formed during a bidding process. Finally, the fact that the applicant was selected as the preferred bidder is due to the mere fact that it submitted a significantly higher bid to acquire TMSC than its competitors.

125 The Commission contests the applicant’s arguments.

126 It should be noted that the fact that Toshiba took the initiative for the first proposal is not surprising, since it was intended to find a solution to resolve significant financial difficulties (see paragraph 3 above).

127 Moreover, as the Commission noted in recital 110 of the contested decision, even if, according to an internal Toshiba document of 9 March 2016, the complexity and uniqueness of a tripartite structure could attract attention, according to another internal Toshiba document of 14 March 2016, that structure had a great advantage for Toshiba: TMSC would no longer be one of its subsidiaries and, from an accounting point of view, it would irretrievably exit Toshiba’s accounts from the day of signing. According to that document of 9 March 2016, with that structure, Toshiba was assured of completing the sale of all shares by mid-March 2016, and therefore considered that it contributed best to its annual finances.

128 However, it was in the applicant’s interest to make a proposal that corresponded to Toshiba’s needs, since it was also interested in acquiring TMSC, an acquisition which it described in its letter to Toshiba of 4 March 2016 as a ‘once in a lifetime’ opportunity.

129 Therefore, although the applicant claims that it was Toshiba, and not itself, that developed and proposed the transaction structure, it does not dispute that it proposed a new transaction structure to Toshiba in a letter of 4 March 2016 (see recital 119 of the contested decision) and acknowledges that, by letter of 9 March 2016, Toshiba replied that that two-step structure was the only proposal that was not conditional on the outcome of competition law issues prior to the implementation of the transaction, thus allowing the completion of the sale of all shares by mid-March 2016 (recital 123 of the contested decision).

130 As to the applicant’s argument that the structure chosen was solely in Toshiba’s interest and not its own, it is clear that it was in the applicant’s interest to propose a structure that could correspond to Toshiba’s interest in winning the tender. Therefore, the applicant does not contest the content of recital 123 of the contested decision, according to which, even if the choice of the transaction structure was dictated by Toshiba’s needs, the applicant was still willing to help put in place a transaction structure that would best meet Toshiba’s financial difficulties and thus enable it to win the tender procedure, so that the applicant could thus succeed in acquiring TMSC.

131 That is confirmed by the correspondence between the applicant and Toshiba referred to in paragraph 129 above.

132 Finally, as regards the applicant’s argument that the various factors referred to in the contested decision are irrelevant, since those circumstances are not sufficient to establish a single concentration, it should be noted that the Commission does not claim in the contested decision that each factor is sufficient in itself to establish a single concentration.

133 It should also be noted that the applicant does not show that those factors are irrelevant.

134 Therefore, contrary to what the applicant claims, it is relevant that, when the tender procedure was launched by Toshiba, MS Holding did not exist. The applicant was the only bidder to have proposed a two-step transaction structure with the creation of a transitory holding company, likely to meet Toshiba’s interests, namely to obtain the full sale price for TMSC by the end of March 2016.

135 The proposal for a tripartite structure thus appears to be the reason why the applicant won the tender, more so than the reason it puts forward that its bid to acquire TMSC was significantly higher than that of its competitors. That is confirmed by Toshiba’s email of 9 March 2016, referred to in paragraph 129 above.

136 In any event, the fact that the idea of a tripartite structure was proposed by the applicant or by Toshiba is not decisive. The tripartite structure was concluded in the interests of both parties. First, it enabled Toshiba to remove TMSC from its consolidated accounts and to recognise the price of its sale as a capital contribution by the end of March 2016 without waiting for merger clearance and, secondly, it enabled the applicant to win the tender, as no other bidder had proposed such a structure.

137 The applicant’s complaint that the transaction was directed by Toshiba and was devised solely in its interests must therefore be rejected.

(2) The complaint that the applicant did not actively participate in the establishment of MS Holding

138 The applicant claims that it was a Japanese law firm, not retained by the applicant or by Toshiba, that dealt with the formation of MS Holding, including the choice of its name, registered office and shareholders, in accordance with the general practice in Japan of using an independent ‘third party committee’. Therefore, the statement in recital 119 of the contested decision that the applicant proposed to set up MS Holding as an interim buyer in order to enable Toshiba to receive the purchase price before the end of the 2015 financial year is incorrect, since such a conclusion could not be drawn from the document mentioned in footnote 156 of that decision, to which that recital refers. Similarly, the statement in recital 150 of the contested decision that the applicant made proposals and comments relating to the identity of the shareholders, the size of the equity capital and the articles of association of MS Holding is erroneous, since the fact that, according to that recital, the applicant was also invited to comment on the ‘Shares and Other Securities Transfer Agreement’ does not show much involvement on its part in the sale of the Class A shares to MS Holding. That Japanese law firm finally selected each of the three shareholders of MS Holding without seeking the approval of the applicant or Toshiba.

139 The Commission contests the applicant’s arguments.

140 As regards the applicant’s argument that it was a law firm which independently decided on the name, registered office and shareholders of MS Holding, that is incorrect, as demonstrated by exchanges of emails of 7 March 2016 between Toshiba’s lawyers and those of the applicant.

141 Therefore, as regards the name of the structure, in an email from Toshiba’s lawyers to the applicant’s lawyers, they are asked whether they agree on the name ‘MS Holding’. As regards the registered office, in another email from Toshiba’s lawyers, they proposed a location and asked the applicant’s lawyers to check whether that choice was ‘plausible’. With regard to the shareholders, the same email asks the applicant’s lawyers to confirm whether they agree with the appointment of a shareholder proposed by Toshiba’s law firm. That email reiterates the abovementioned request for confirmation of the name of the structure. It can further be noted that that email demonstrates the existence of various and direct discussions between Toshiba’s lawyers and the applicant’s lawyers, with the former requesting the latter to make arrangements for a conference call.

142 As regards recital 119 of the contested decision, which is challenged by the applicant, it is correct, as the applicant maintains, that the extract from footnote 156 to which that recital refers does not allow the conclusion to be drawn that it proposed to set up MS Holding.

143 However, the applicant does not quote that recital in full, which refers to its letter of 4 March 2016 to Toshiba, in which the applicant states that it studied a new transaction structure taking into account the period for filing notifications under each country’s regulations until clearance is obtained and that that new structure should increase the certainty of completing the transaction promptly.

144 It is thus clear from that letter that it was indeed the applicant who proposed a new transaction structure, taking into account both the need for Toshiba to obtain the price for the sale of TMSC and the need to obtain merger clearances.

145 In addition, as can be seen from Toshiba’s letter to the Commission of 18 December 2017, that structure, unlike the ‘80/20’ structure, allowed Toshiba to remove TMSC from its accounts before the end of the 2015 financial year in order to be able to include the sale price of TMSC.

146 As regards recital 150 of the contested decision, which the applicant challenges on the ground that it did not show a ‘heavy involvement’ in the sale of the Class A shares to MS Holding, it should be noted that neither that recital nor the other recitals of the contested decision claim that the applicant showed a ‘heavy involvement’. In that regard, recital 125 of the contested decision states that the fact that the applicant had the opportunity to propose amendments is sufficient to show that it participated in the sale of TMSC Class A shares from Toshiba to MS Holding. The applicant does not challenge recital 125.

147 As to the argument that the allegedly independent law firm finally selected each of the three shareholders of MS Holding without seeking the approval of the applicant or Toshiba, that is incorrect, as is clear from paragraph 141 above.

148 The applicant’s complaint that it did not actively participate in the establishment of MS Holding must therefore be rejected.

(3) The complaint that the Commission’s description of MS Holding’s role is misleading

149 The applicant claims that recital 150 of the contested decision, according to which MS Holding was not economically interested in TMSC beyond its role as an interim purchaser for which it was paid a fixed price, is misleading. MS Holding enjoyed its full rights as a shareholder and MS Holding shareholders benefited from the dividends paid by TMSC during the interim period.

150 The Commission contests the applicant’s arguments.

151 It is not disputed that MS Holding paid only EUR 800 to acquire all the Class A shares, to which 100% of TMSC’s voting rights were attached, the value of which was estimated at approximately EUR 5.28 thousand million, and that it was agreed that MS Holding’s shareholders would sell their Class A shares when the applicant exercised its ‘share options’ (Class C shares), at a price fixed ex ante and therefore without taking TMSC’s performance into account.

152 Consequently, the Commission was right to consider, in recital 126 of the contested decision, that the interest of the shareholders of MS Holding was limited to the previously agreed profit from the sale of those shares, which was guaranteed from the outset and did not depend in any way on the results of TMSC.

153 As the Commission notes, the mere fact that MS Holding received some dividends does not invalidate the observation made in that recital, namely that, contrary to the situation of a normal shareholder, MS Holding could receive some dividends, but could not benefit from a possible increase in the value of TMSC in case of positive economic results.

154 Therefore, the fact that MS Holding shareholders were able to obtain dividends from TMSC appears to be secondary. What is important is that the shareholders of MS Holding had already agreed to sell their Class A shares at a fixed price when the applicant exercised its share options.

155 In addition, it should be noted that, in footnote 215 of the contested decision, the Commission states that Toshiba itself, in response to the Commission’s request for information under Article 11(3) of Regulation No 139/2004, confirmed that the interim transaction was specifically intended to carry out the sale of TMSC in the particular circumstances facing Toshiba, and that it was unlikely that that structure would be applicable outside that transaction.

156 Therefore, contrary to what the applicant maintains, recital 150 of the contested decision, from which it follows that MS Holding was not economically interested in TMSC beyond its role as an interim buyer for which it was paid a fixed price, is not misleading.

(4) The complaint that MS Holding was perfectly free to exercise its voting rights

157 The applicant claims that the Commission’s assertion, in recital 127 of the contested decision, that MS Holding was not meant to exercise any of its voting rights is incorrect. On the contrary, MS Holding was perfectly free to exercise its voting rights over TMSC.

158 The Commission contests the applicant’s arguments.

159 Admittedly, it is not disputed between the parties that recital 127 of the contested decision refers to a version of the contract between Toshiba and MS Holding which was not ultimately retained.

160 That recital mentions an exchange of emails between the lawyers involved in the creation of MS Holding envisaging that, as a general rule, there would be no exercise of rights by the shareholders and that consideration could be given to making that point legally binding. It should be noted that that point was not included in the final version of the contract between Toshiba and MS Holding.

161 However, it should be noted that, despite the fact that MS Holding had 100% of the voting rights during the interim period, it is clear from the contested decision that it was foreseen from the establishment of the parking structure that MS Holding’s voting rights would be limited and, as a result, carry little power.

162 A first limitation on MS Holding’s freedom to exercise its voting rights results from the fact that, for the purposes of the transaction, new classes of shares and additional shares were created (recital 19 of the contested decision, see paragraph 11 above), which made it possible for the interests of the applicant, as the sole holder of the Class B shares (in this case a single non-voting share), to be protected by Article 322(1) of the Japanese Law on Companies (see recital 137 of the contested decision).

163 A second limitation is that brought about by the applicant’s right to veto a number of decisions which MS Holding could not take without consulting the applicant or receiving its agreement under Article 16.3(3)2 of TMSC’s amended articles of association. In order to protect its interests, according to the applicant’s explanations in its reply of 13 March 2019 to the Commission’s request of 25 February 2019, as the holder of the Class B share, it would have had to demonstrate under Article 322(1) of the Japanese Law on Companies that its interests had been adversely affected, whereas the protection it had acquired under Article 16.3(3)2 of TMSC’s amended articles of association was unconditional (see recital 137 of the contested decision). Furthermore, the right to veto under Article 16.3(3)2 deprived MS Holding of the right which it would have had under Article 179(3) of the Japanese Law on Companies, according to which MS Holding, as a shareholder holding more than 90% of the voting rights in TMSC, would have had the right to purchase the remaining shares, as well as the share options, of TMSC (see recitals 136 and 137 of the contested decision).

164 A third limitation is that MS Holding was not free to choose the duration of its holding of TMSC shares. Despite holding 100% of the voting rights, MS Holding could not ensure that its rights as a shareholder holding 100% of the voting rights would be maintained beyond the date provided for in points 6 and 7 of the ‘Share and Other Securities Transfer Agreement’, namely the date of exercise of the share options (recitals 126 and 152 of the contested decision). After that exercise, MS Holding, even if it had been able to remain a shareholder of TMSC, would have become a shareholder with minority voting rights. Consequently, the sale of the Class A shares by MS Holding to TMSC, as provided for by TMSC’s amended articles of association, was not left to the free choice of MS Holding, since, in the absence of an unconditional right to veto such as that of the applicant, MS Holding could not protect itself against being squeezed out as minority shareholder. Moreover, it would probably have been difficult for it to demonstrate that its interests had been adversely affected, since it had purchased Class A shares for approximately EUR 800 and had sold them shortly afterwards for approximately EUR 300 000 (recital 34(c) of the contested decision).

165 Moreover, the applicant itself explained to the Commission in its reply of 13 March 2019 that MS Holding did not actually enjoy unlimited freedom, as it could not do anything that could potentially have caused financial damage to TMSC. That reply by the applicant is therefore also in line with the exchange between the lawyers referred to in recital 127 of the contested decision (see paragraph 160 above).

166 As a result, the holding of 100% of the voting rights in TMSC does not, on its own, reflect the legal reality of the transaction.

167 Furthermore, in the applicant’s reply to the Commission, as well as in its application, the applicant explained that MS Holding’s voting rights as a shareholder of TMSC, a company limited by shares under Japanese law (‘Kabushiki Kaisha’), related only to matters such as the declaration of dividends, the appointment or dismissal, as well as the determination of the remuneration of the directors and corporate auditors, the amendment of the articles of association and the approval of the issuing of shares and share options.

168 As noted, decisions on the issue of shares and share options could not be taken independently by MS Holding, and the scope of decisions on the amendment of the articles of association was reduced, due to the introduction of the applicant’s veto right by Article 16.3(3)2 of TMSC’s amended articles of association.

169 As for the voting rights, which are already very limited in scope, MS Holding has exercised them very little. As regards the exercise of MS Holding’s voting rights in relation to the appointment or dismissal of TMSC’s directors, the applicant emphasised in the application that the shareholder would exercise its influence over the company held precisely through the supervision and appointment of directors. Furthermore, the applicant emphasised, in its reply of 13 March 2019 to the Commission’s request of 25 February 2019, the independence of TMSC’s directors and the fact that, after the acquisition by MS Holding and throughout the interim period, the board of directors was hardly changed, with the same person remaining at its head.

170 Furthermore, there is no evidence that MS Holding approached the management or gathered information to make any decision on continuity or change.

171 By contrast, as is apparent from the applicant’s letter to Toshiba of 4 March 2016, the applicant met with the management of TMSC and, after having, in its words, analysed the likelihood of expansion strategies being implemented, decided to promote the independence of TMSC’s management and the continuity thereof after its acquisition by the applicant.

172 In that context, MS Holding’s ownership of 100% of TMSC’s voting rights during the provisional period does not make it possible to establish the reality of its exclusive control.

173 The applicant is therefore wrong to argue that MS Holding was perfectly free to exercise its voting rights.

(5) The complaint that TMSC acted independently of the applicant

174 The applicant claims that TMSC was perfectly entitled to adopt important strategic measures without its approval or that of MS Holding. As to TMSC’s independence from the applicant, on at least two occasions during the relevant period from 17 March to 19 December 2016, TMSC allegedly took major business decisions, which the applicant did not have to approve and could not have prevented. Moreover, the internal documents concerning the ‘Wako transaction’ referred to in recital 152 of the contested decision demonstrate that TMSC’s management acted independently during the interim period, without consulting Toshiba or the applicant. Therefore, it is wrong for the Commission to present, in recital 152, the ‘Wako transaction’ as an indication that ‘TMSC’s management was acting having in mind the subsequent transfer of TMSC’s shares to [the applicant]’. As regards TMSC’s independence from MS Holding, the statement in recital 128 of the contested decision that ‘TMSC did not attend any meetings together with MS Holding’ is misleading. The applicant points out that that extract, which is a reply from TMSC of 4 November 2016 to the Commission’s request for information made by decision of 7 October 2016 under Article 11(3) of Regulation No 139/2004 (see paragraph 29 above), contains only the first sentence of that reply, which goes on to state expressly that, between 17 March and 19 December 2016, TMSC convened six shareholders’ meetings.

175 The Commission contests the applicant’s arguments.

176 Firstly, as regards the applicant’s argument in support of the present complaint that TMSC acted independently of it, it should be noted that, as the Commission points out, it did not base its conclusion that the interim transaction constituted the partial implementation of a single concentration on the fact that the applicant had acquired or exercised decisive influence over TMSC’s business decisions, but on its interpretation of the judgment of 31 May 2018, Ernst & Young (C‑633/16, EU:C:2018:371), according to which a partial implementation of a concentration does not require an acquisition of control of the target undertaking (see recital 92 et seq. of the contested decision).

177 Therefore, the applicant’s argument that the Commission based its decision, inter alia, on the fact that TMSC needed its approval to take decisions is inoperative.

178 In any event, it may be noted that recital 152 of the contested decision merely states that MS Holding’s control over TMSC was temporary by definition, owing, firstly, to the minimum price which MS Holding paid for TMSC’s voting shares (approximately EUR 800), secondly, to the fact that MS Holding’s shareholders agreed ex ante to sell their shares in TMSC at a fixed price when the applicant exercised its share options and, thirdly, to the fact that, according to the common understanding of the applicant and Toshiba, MS Holding would not exercise any of its voting rights in TMSC. That recital adds that further confirmation of the fact that MS Holding’s control over TMSC was merely temporary can be found in TMSC’s internal documents concerning the potential acquisition of Wako Pure Chemical Industries Ltd, a subsidiary of Takeda Pharmaceutical Company Ltd, showing that TMSC’s management was acting with the subsequent transfer of TMSC’s shares to the applicant in mind.

179 It is that final part of recital 152 of the contested decision to which the applicant’s argument relates.

180 Recital 152 of the contested decision, as the Commission points out, does not suggest that the applicant unduly interfered in TMSC’s commercial decisions or exerted any influence on TMSC’s management, but merely notes that TMSC’s management was well aware that MS Holding’s control over TMSC was only temporary, since the company was soon to be taken over by the applicant, which had already paid the full purchase price.

181 Furthermore, as the Commission also points out, the applicant does not claim that the Commission committed any error in considering that MS Holding’s control over TMSC was merely temporary.

182 Secondly, the applicant submits that TMSC acted independently of MS Holding, so that the statement in recital 128 of the contested decision that ‘TMSC did not attend any meetings together with MS Holding’ is misleading, even though ‘between 17 March and 19 December 2016, TMSC held six shareholder meetings’. In that regard, it is necessary to note recital 129 of that decision, which is not disputed by the applicant, according to which ‘contrary to [the applicant’s] claims, the Commission [did] not argue that MS Holding had no economic interest in TMSC because MS Holding was not involved in the day-to-day management of TMSC. Rather, the Commission referred during the investigation to the fact that MS Holding did not meet with the directors of TMSC (which had been appointed by the previous shareholder Toshiba) in the period between 17 March 2016 and 19 December 2016, indicating an unusual lack of interest for MS Holding, as a new shareholder. Given that MS Holding was a new shareholder of TMSC, it would be expected, under normal business circumstances, to have a strong interest in the management of TMSC, as a new shareholder normally decides in the first months after acquiring control whether confirming or changing the management of the newly acquired company’.

183 Therefore, the applicant’s argument that MS Holding attended the official meetings of TMSC’s shareholders cannot call into question the fact that there is no evidence that MS Holding exercised the usual function of a controlling shareholder which, according to the explanations provided by the applicant in the application, consists in controlling and appointing the directors in charge of the day-to-day activities of the company.

184 The fact that MS Holding attended TMSC’s official shareholders’ meetings cannot therefore call into question the Commission’s assertion in recital 128 of the contested decision that there is little or no evidence of MS Holding’s involvement in TMSC’s activities.

185 Finally, it may be noted that the ‘Shares and Other Securities Transfer Agreement’ between Toshiba and the applicant provides for ‘warranties’ for the ‘buyer’ and the ‘seller’ (‘Exhibit 4.1 Seller’s Representations and Warranties’ and ‘Exhibit 4.2. Buyer’s Representations and Warranties’). Even though there is no mention of any warranties in the ‘Excluded Share Transfer Agreement’ between Toshiba and MS Holding, which is less than two pages long, those warranties demonstrate that it is the agreement between Toshiba and the applicant that carried the economic reality of the transaction within the meaning of paragraph 106 of the judgment of 23 February 2006, Cementbouw Handel & Industrie v Commission (T‑282/02, EU:T:2006:64).

186 It follows from the above that the second subsection must be rejected.

(c) The third subsection, according to which the alleged power to determine the identity of the ultimate purchaser and the economic risks are irrelevant

187 The applicant challenges recital 151 of the contested decision.

188 According to that recital, as of the interim transaction, the applicant paid the full acquisition price of TMSC (EUR 5.28 thousand million, corresponding to the estimated value of that company), whereas MS Holding paid only approximately EUR 800 for the acquisition of control of TMSC by means of the acquisition of the Class A shares. The Commission added to that recital that, by irreversibly paying the entire price for the acquisition of TMSC from the interim transaction, the applicant had become solely able to determine, in the end, the identity of the ultimate acquirer of TMSC and bore the economic risk of the overall transaction from the outset.

(1) The argument that the ‘right to determine the ultimate or future owner’ does not constitute ‘influence’

189 The applicant claims that the alleged power to determine the identity of the ultimate acquirer does not prove that it acquired ‘influence over TMSC’ (recital 135 of the contested decision) as a result of the interim transaction. In particular, the share options it held during that period did not give it the right to control or influence the normal course of TMSC’s business, which was managed by an independent board of directors. It added that, if the possibility of determining the ultimate owner were sufficient to conclude that there was partial implementation, the Commission would be obliged to consider any acquisition of share options that allowed the acquirer to subsequently acquire a controlling interest in the target company as a breach of the standstill obligation. For example, a ‘standard’ share purchase agreement between two parties, which is subject to clearance by the Commission under the merger control procedure, would give the acquirer the power to ‘determine the ultimate owner’ after merger clearance. That situation is identical in every respect to the present case, in which the applicant was entitled, after exercising the share options and receiving clearance, to take control of TMSC or to transfer it to a third party. Finally, the Commission is wrong to refer, in footnote 190 of the contested decision, to paragraph 61 of the judgment of 31 May 2018, Ernst & Young (C‑633/16, EU:C:2018:371), from which it concludes that any influence, however slight, is capable of constituting an early implementation of a concentration.

190 The Commission contests the applicant’s arguments.

191 Firstly, as regards the applicant’s argument relating to recital 135 of the contested decision, it is sufficient to note that, in that recital, the Commission did not find that the applicant acquired control of TMSC as a result of the interim transaction because it was in a position to determine the ultimate owner of TMSC. The Commission instead found that the interim transaction gave it influence over the future of TMSC, noting that it would not have had such influence prior to the acquisition of sole control if the acquisition had not been structured as a two-step parking transaction.

192 The applicant’s argument that the Commission claimed in that recital that it had acquired ‘influence over TMSC’ by virtue of the fact that it could determine the identity of the ultimate purchaser is therefore incorrect.

193 Secondly, as regards the applicant’s argument that the present case does not differ from a ‘standard’ share purchase agreement, it should be noted that, as the Commission points out, in such an agreement, in principle, if the concentration is not authorised, the precondition is not fulfilled and, therefore, the share purchase agreement is not effective. The seller then retains the target company and the buyer does not pay the purchase price.

194 In the present case, by contrast, even if the competent authorities had not given the necessary clearance, the applicant retained exclusive competence to determine the identity of the future purchaser of TMSC, for which it had already paid the price.

195 In that regard, the Commission explained in recitals 139 and 140 of the contested decision how the present case, based on a two-step transaction structure, differed from a ‘standard’ share purchase agreement. It stated that, when an investor has the option to purchase a shareholding in a company, he or she normally does not pay the full amount of the potential future acquisition of the shareholding, corresponding to the value of that shareholding, but only a premium corresponding to the value of the option. It stated that, on the date of expiry of the option, the holder could decide to exercise the option taking into account the current value of the company and that, until that date, the holder of the call option bore only the economic risk of the premium paid. In the present case, the applicant ‘did not get “genuine” options which would give it the right … to buy TMSC at a later stage’ (recital 140 of the contested decision), but paid the full price for the acquisition of TMSC in exchange for a special, de facto automatic mechanism for acquiring it or for having the right to sell it to a third party of its choice.

196 Thirdly, as regards footnote 190 of the contested decision, in which the Commission states that the factual background to the present case is different from that which gave rise to the judgment of 31 May 2018, Ernst & Young (C‑633/16, EU:C:2018:371), in which the Court of Justice found, in paragraph 61, that the measure at issue in that case did not fall within the scope of Article 7(1) of Regulation No 139/2004 because, among other reasons, it did not give the undertaking concerned ‘any influence’ over the target companies, that footnote does not mean that the Commission intended to imply in the contested decision that, a contrario, ‘any influence’ would be sufficient to bring about the early implementation of a concentration.

197 It follows from the reading of that footnote that its sole purpose was to indicate that the factual configuration of the present case differed from that previous case.

(2) The argument that veto rights to combat dispersal did not confer relevant ‘influence’

198 According to the applicant, the fact that the veto rights attached to the Class B share enabled it to pre-empt one of the legal rights of the majority shareholder, in so far as they ensured, according to recital 136 of the contested decision, ‘that MS Holding could not buy the share options relying on Article 179(3) of the Japanese Law on Companies’, does not prove that the interim transaction conferred on it any influence over TMSC. That right merely protects it, as the holder of the Class B share and share options, from being ‘squeezed out’ by MS Holding. Its veto rights do not deviate significantly from the right provided for in Article 322(1) of the Japanese Law on Companies. Article 16.3(3)2 of TMSC’s amended articles of association only serve to protect its shareholding, as a non-controlling minority shareholder, which could be deprived of its value if the majority shareholder was able to effect a ‘squeeze-out’ under Article 179(3) of the Japanese Law on Companies. Such protective rights are common in virtually all large merger and acquisition transaction agreements. Furthermore, the Commission’s assertion, in recital 137 of the contested decision, that the veto right provided for in Article 16.3(3)2 of TMSC’s amended articles of association, is misleading. That right did not confer any additional rights on TMSC in relation to Article 322(1) of the Japanese Law on Companies.

199 The Commission contests the applicant’s arguments.

200 The applicant’s argument is essentially the same as its earlier argument that MS Holding was perfectly free to exercise its voting rights, which has already been rejected above (see paragraphs 159 to 173 above).

201 Furthermore, through the parking structure in place, only the applicant could either become the controlling shareholder of TMSC itself or sell its options and thus determine the controlling shareholder.

202 The Commission thus noted, in particular in recitals 136 and 137 of the contested decision, that the veto right provided for in Article 16.3(3)2 of TMSC’s amended articles of association would enable the applicant to determine the ultimate purchaser of TMSC.

203 Accordingly, the Commission is right to argue that the veto rights intended to combat the dispersal of the applicant’s rights confer a relevant ‘influence’ over it.

(3) The argument that the ‘economic risk of the concentration’ allegedly assumed by the applicant does not constitute a relevant criterion

204 According to the applicant, the fact that it assumed, according to recitals 138 and 140 of the contested decision, ‘the economic risk of the transaction from the start’ is not a basis for a finding of a ‘partial implementation’ of the concentration. Following the logic of the Commission’s argument, any acquisition of share options that ‘links’ the acquirer’s interest to the target would lead to a situation of an early implementation of a concentration. Such an approach would be contrary to the Commission’s consistent practice.

205 The Commission contests the applicant’s arguments.

206 It should be noted that, although, in the heading of the present argument, the applicant states that the economic risk of the concentration which it allegedly assumed is not a relevant criterion, it does not, in fact, call into question the fact that it bore the economic risk of the entire transaction from the interim transaction onwards, by irrevocably paying the entire purchase price of TMSC, that is to say, EUR 5.28 thousand million, whereas MS Holding paid only approximately EUR 800 for its shares.

207 What the applicant disputes is whether that circumstance is a relevant criterion, given that any purchaser always assumes an economic risk.

208 However, as the Commission explained in recitals 139 and 140 of the contested decision (see paragraph 195 above), the applicant did not obtain an option to acquire TMSC at a later stage, since it had paid the full price for that company in advance and acquired the right to become its owner or to sell it to the purchaser of its choice.

209 The applicant states that the risk was low, since the likelihood of obtaining concentration clearance was high.

210 However, even if the clearances had not been granted, the purpose of the transaction was for Toshiba to receive the full price of TMSC and to be able to book the amount in its accounts. In the event of a refusal, the applicant would have been able to choose to whom to sell its share options and thus had the possibility, for example, to decide not to sell them to a major competitor, in order to avoid strengthening it.

211 The fact that the applicant bore the entire economic risk of the entire transaction is necessarily a relevant criterion for finding a single concentration for the purpose of investigating the economic reality underlying the transactions and to determine their unitary nature by establishing whether those transactions are interdependent, so that one would not have been carried out without the other, in accordance with the judgment of 23 February 2006, Cementbouw Handel & Industrie v Commission (T‑282/02, EU:T:2006:64, paragraphs 106 and 107) (see paragraph 109 et seq. above).

212 In any event, the applicant’s argument that the mere acquisition of a call option is not in itself sufficient to confer any control over the target is irrelevant, since in the present case the Commission did not consider in the contested decision that the applicant had acquired control of TMSC at the stage of the interim transaction.

213 It follows from the above that the third subsection must be rejected.

(d) The fourth subsection, according to which the conditions of ‘partial implementation’ within the meaning of the judgment of 31 May 2018, Ernst & Young (C‑633/16, EU:C:2018:371), are not fulfilled

214 The applicant claims that, while in paragraph 47 of the judgment of 31 May 2018, Ernst & Young (C‑633/16, EU:C:2018:371), the Court recognised that, in certain circumstances, a ‘partial implementation’ could constitute an early implementation of a concentration, such a ‘partial implementation’ can only exist in the event of an acquisition of ‘partial control’. That would mean that the acquirer has been given some influence over the strategic decision-making of the target. The applicant did not have any special rights that could have given it such influence over the target before clearance was obtained. Furthermore, since the Court stated in paragraph 46 of that judgment that there is an infringement of Article 7(1) of Regulation No 139/2004 only where the parties carry out transactions which contribute to a lasting change of control over the target undertaking, ‘control’ constitutes the essential element, even in the case of partial implementation. Finally, it follows from paragraph 61 of the abovementioned judgment, in which the Court held that the preparatory measure at issue had not contributed to the acquisition of control because the acquirers had not had the possibility of exercising ‘any influence’ over the target, that, if an acquirer has acquired ‘no influence’, there is no partial implementation.

215 The Commission contests the applicant’s arguments.

216 As regards the applicant’s argument that it follows from paragraph 47 of the judgment of 31 May 2018, Ernst & Young (C‑633/16, EU:C:2018:371), that a ‘partial implementation’ of a concentration can exist only in the event of an acquisition of ‘partial control’, it is incorrect.

217 According to paragraph 47 of the judgment of 31 May 2018, Ernst & Young (C‑633/16, EU:C:2018:371), any partial implementation of a concentration falls within the scope of Article 7(1) of Regulation No 139/2004.

218 As noted in paragraph 73 above, it follows from the judgment of 31 May 2018, Ernst & Young (C‑633/16, EU:C:2018:371), that the test for determining whether Articles 4(1) and 7(1) of Regulation No 139/2004 have been infringed is not whether there has been an acquisition of control, including therefore ‘partial control’, over the target undertaking, but, as the Commission maintains, whether the transaction at issue has contributed to a change in control of that undertaking.

219 As regards the applicant’s argument that it follows from paragraph 46 of the judgment of 31 May 2018, Ernst & Young (C‑633/16, EU:C:2018:371), that ‘control’ is the ‘essential’ element, that is also incorrect.

220 According to paragraph 46 of the judgment of 31 May 2018, Ernst & Young (C‑633/16, EU:C:2018:371), the implementation of a concentration takes place as soon as the parties to a concentration implement transactions contributing to a lasting change of control over the target undertaking.

221 Furthermore, it follows from paragraph 59 of the judgment of 31 May 2018, Ernst & Young (C‑633/16, EU:C:2018:371), (see paragraph 65 above) that a concentration may be effected by a transaction which, in whole or in part, in fact or in law, contributes to a change of control of the target undertaking.

222 Therefore, as the Commission argues, if transactions ‘contribute’ to a change of control within the meaning of the judgment of 31 May 2018, Ernst & Young (C‑633/16, EU:C:2018:371), including transactions that do not, on their own, transfer control, they constitute a partial implementation of a concentration.

223 As regards the applicant’s argument that it follows from paragraph 61 of the judgment of 31 May 2018, Ernst & Young (C‑633/16, EU:C:2018:371), that, if a purchaser has acquired ‘no influence’, there is no partial implementation, it should be noted that, while the Court considered that the measure at issue in that case did not fall within the scope of Article 7(1) of Regulation No 139/2004, because, among other reasons, it did not give the undertaking concerned ‘any influence’ over the target companies, the applicant had some influence in the present case, since, as the Commission points out in recital 157 of the contested decision and as already noted (see paragraphs 195 and 208 above), from the date of the interim transaction, and irrespective of the outcome of the merger clearance, the applicant had sole power to determine the identity of the ultimate purchaser of TMSC. Had it been prevented from acquiring it itself, the applicant could still have decided on the identity of the ultimate purchaser. The Commission was therefore right to state, in recital 155 of the contested decision, that the applicant had acquired the possibility of exercising a certain degree of influence over TMSC as a result of the interim transaction.

224 The fourth subsection must therefore be rejected.

(e) The fifth subsection, according to which the interim transaction did not ‘contribute to a lasting change of control’ over TMSC within the meaning of the judgment of 31 May 2018, Ernst & Young (C‑633/16, EU:C:2018:371)

225 The applicant considers that the Commission’s reasoning in recital 143 of the contested decision, according to which the interim transaction was necessary to bring about a change in control of TMSC, in the sense that that transaction had a direct functional link with the implementation of the concentration, and according to which that means that the interim transaction contributed – at least in part – to a change in the control of the target undertaking within the meaning of the judgment of 31 May 2018, Ernst & Young (C‑633/16, EU:C:2018:371), is wrong for several reasons.

(1) The direct functional link criterion within the meaning of the judgment of 31 May 2018, Ernst & Young (C‑633/16, EU:C:2018:371)

226 The applicant claims that the ‘direct functional link’ required by the Court in the judgment of 31 May 2018, Ernst & Young (C‑633/16, EU:C:2018:371), in order to establish the existence of an early implementation of a concentration exists only if the act itself brings about the change of control. The applicant points out that, according to recital 134 of the contested decision, it did not exercise control over TMSC. In that judgment, the Court ruled out the existence of a breach of the standstill obligation where the acquirer did not acquire the possibility of exercising ‘any influence’ over the target. Furthermore, it is clear from paragraphs 48 and 49 of that judgment that even consecutive transactions forming part of a single concentration do not constitute an early implementation of a concentration if the first transaction is not ‘necessary’ to achieve a change of control, but is only ‘ancillary’ or ‘preparatory’. In the present case, the transfer of shares to MS Holding was not necessary for the applicant to acquire control of TMSC.

227 The Commission contests the applicant’s arguments.

228 As already noted in paragraph 73 above, the test used in the judgment of 31 May 2018, Ernst & Young (C‑633/16, EU:C:2018:371), to determine whether Articles 4(1) and 7(1) of Regulation No 139/2004 have been infringed is not whether there has been an acquisition of control of the target undertaking, but whether the transaction in question has contributed, in whole or in part, in fact or in law, to the change of control of that undertaking.

229 Therefore, the fact, highlighted in recital 134 of the contested decision and referred to by the applicant, that the latter did not exercise control over TMSC during the interim period does not mean that that interim transaction did not contribute, in whole or in part, to the change of control of the target undertaking (see, to that effect, judgment of 31 May 2018, Ernst & Young, C‑633/16, EU:C:2018:371, paragraph 46).

230 It is therefore necessary to reject the applicant’s argument that the ‘direct functional link’ allegedly required by the Court in the judgment of 31 May 2018, Ernst & Young (C‑633/16, EU:C:2018:371), in order to hold that an early implementation of a concentration exists only if the act itself brings about the change of control.

231 According to paragraph 49 of the judgment of 31 May 2018, Ernst & Young (C‑633/16, EU:C:2018:371), transactions which are not necessary to achieve a change of control, in that they do not have a direct functional link with the implementation of a concentration, do not satisfy the criterion of contributing to a change of control and therefore do not infringe Articles 4(1) and 7(1) of Regulation No 139/2004 when carried out prior to notification and clearance of the concentration.

232 In the present case, contrary to the applicant’s submission, and as stated in recital 149 of the contested decision, the interim transaction was necessary because, firstly, without the two-step transaction structure proposed by the applicant, Toshiba would have been unable to relinquish control of TMSC and irreversibly collect payment from TMSC before the end of March 2016, as Toshiba would have had to wait for clearance from the competition authorities to sell TMSC. Secondly, under the two-step structure, the interim transaction was a necessary step to achieve a change of control of TMSC. The objective of the two-step structure was for the interim transaction to allow an interim buyer to purchase all the voting securities of TMSC, but without the need to meet the notification requirements, and to allow the applicant to pay the price for TMSC to Toshiba in an irreversible manner while obtaining the greatest certainty that it would ultimately acquire control of TMSC. Thirdly, none of the hypothetical alternative transaction structures could satisfy the need for Toshiba to receive a significant amount of capital contribution before 31 March 2016.

233 Furthermore, as the Commission points out in recital 154 of the contested decision, the Court, in the judgment of 31 May 2018, Ernst & Young (C‑633/16, EU:C:2018:371), did not characterise the ‘direct functional link’ as a requirement distinct from that of a contribution to a change of control which must be met in order for a transaction to be covered by Article 7(1) of Regulation No 139/2004. The criterion used in that judgment is whether the transaction in question contributed, in whole or in part, in fact or in law, to the change of control of the target undertaking (see paragraph 73 above).

234 Finally, in recital 154 of the contested decision, the Commission quotes the applicant’s observations following the statement of objections, in which the applicant itself states that ‘the establishment of MS Holding was … necessary for the divestment of TMSC by Toshiba, in light of Toshiba’s financial situation’.

235 By that reply, the applicant must be regarded as having itself admitted that the interim transaction had a ‘direct functional link’ with the change of control of TMSC.

(2) The argument that the Commission misinterpreted the judgment of 31 May 2018, Ernst & Young (C‑633/16, EU:C:2018:371)

236 The applicant claims that, contrary to the statements in recital 149 of the contested decision, the interim transaction is not a ‘necessary step’ in the acquisition of control of TMSC. In order to acquire the latter, the applicant could have acquired the shares in TMSC directly from Toshiba. Furthermore, the Commission errs in holding in the contested decision that the question whether the interim transaction is necessary must be assessed in the light of the actual structure chosen by the parties to the transaction (recital 147 of the contested decision). Finally, the applicant adds that, according to the Commission’s approach, each step of a given transaction structure is theoretically ‘necessary’ and could lead to a situation of early implementation of a concentration, because each stage ultimately makes it possible to implement the project as drawn up by the parties, that is to say, the ‘actual structure chosen by the parties’. That does not follow from the judgment of 31 May 2018, Ernst & Young (C‑633/16, EU:C:2018:371), in which the termination of the cooperation agreement with KPMG International Cooperative was expressly provided for, as a precondition, in the merger agreement with Ernst & Young.

237 The Commission contests the applicant’s arguments.

238 As stated in paragraph 232 above, the interim transaction was necessary to enable Toshiba to irreversibly collect the TMSC payment by the end of March 2016.

239 As is apparent from paragraphs 3 and 6 above, Toshiba wanted to sell that entity in order to receive the price for TMSC before the end of March 2016 and to be able to show it in its accounts.

240 That is also confirmed by the applicant’s reply to the Commission’s request for information of 11 May 2016, referred to in footnote 156 of the contested decision, stating that ‘the parties state that “the aim and background of this acquisition structure is to accomplish Toshiba’s goal of divesting its ownership in TMSC by the end of Toshiba’s fiscal year (31 March) due to its financial difficulties, that is, in order to recognise a sufficient capital gain by the sale of TMSC shares during that fiscal year and avoid the capital deficit”’.

241 The applicant’s argument that the interim transaction was ‘preferable’ for Toshiba in view of its financial situation, but was not a ‘necessary step’ in the transfer of control to the applicant, is therefore incorrect.

242 Furthermore, it is clear that the Commission could only take into account the ‘actual structure chosen by the parties’ and not hypothetical structures that were ultimately not chosen.

243 Finally, as regards the applicant’s argument that, in the judgment of 31 May 2018, Ernst & Young (C‑633/16, EU:C:2018:371), the termination of the cooperation agreement with KPMG International was expressly provided for as a precondition in the merger agreement with Ernst & Young, it must be noted that that termination did not contribute to a change in control of the target undertaking.

(3) The argument that the ‘temporary’ nature of the control exercised by MS Holding over TMSC is irrelevant

244 According to recital 152 of the contested decision, MS Holding’s control over TMSC was by definition temporary, having regard, firstly, to the minimum price which MS Holding had paid for the voting shares in TMSC (approximately EUR 800), secondly, to the fact that the MS Holding shareholders had agreed ex ante to sell all their shares in TMSC at a fixed price when the applicant exercised its share options and, thirdly, the fact that the applicant and Toshiba had agreed that MS Holding would not exercise any of its voting rights in TMSC. In recital 152, it is stated that further confirmation that MS Holding’s control over TMSC was temporary could be found in TMSC’s internal documents concerning the potential acquisition of Wako.

245 The applicant claims that the statement in recital 152 of the contested decision that ‘MS Holding’s control over TMSC was temporary by definition’ is irrelevant for the purposes of assessing whether the temporary transaction contributed to a change of control to the applicant’s advantage. Firstly, as regards the minimum price paid by MS Holding for the voting shares, the purchase price is irrelevant to an acquisition of control. Secondly, the same applies to the Commission’s assertion that MS Holding’s shareholders had agreed ex ante to sell their shares in TMSC when the applicant exercised its share options. That is irrelevant under the test of the judgment of 31 May 2018, Ernst & Young (C‑633/16, EU:C:2018:371), as there would have been no doubt that the partners of the KPMG Denmark companies had their association with Ernst & Young ‘in mind’ after the signing of the merger agreement with Ernst & Young and, a fortiori, after the termination of the cooperation agreement with KPMG International. Thirdly, the Commission’s allegation that it had been agreed that MS Holding would not exercise its voting rights is incorrect. By contrast, according to Article 1(3) of the ‘Excluded Share Transfer Agreement’, MS Holding ‘will use its sole discretion as holder of the shares in exercising all rights associated with the shares for the duration of its ownership of the shares’. Fourthly, the documents relating to the potential acquisition of Wako show that TMSC had participated on its own behalf in the bidding process for Wako, with the support of MS Holding, without consulting either Toshiba or the applicant.

246 The Commission contests the applicant’s arguments.

247 The applicant questions both the accuracy of each of the elements set out in recital 152 of the contested decision and the Commission’s conclusion that the temporary nature of the control exercised by MS Holding over TMSC was a relevant element in demonstrating that the interim transaction had contributed to the change of control of TMSC.

248 Firstly, as regards the applicant’s argument that the minimum price paid by MS Holding for the voting shares is irrelevant in the context of an acquisition of control, it must be pointed out that the fact that MS Holding paid only EUR 800 to acquire all the voting shares (Class A shares) of TMSC, worth approximately EUR 5.28 thousand million, cannot be irrelevant.

249 Secondly, as regards the applicant’s argument that the fact that the MS Holding shareholders had agreed ex ante to sell their shares in TMSC when the applicant exercised its share options is irrelevant in the light of the judgment of 31 May 2018, Ernst & Young (C‑633/16, EU:C:2018:371), given that the partners of the KPMG Denmark companies had ‘in mind’ their association with Ernst & Young after the signing of the merger agreement with Ernst & Young and, a fortiori, after the termination of the cooperation agreement with KPMG International, it is sufficient to note that, in any event, and in the terms of the judgment of 31 May 2018, Ernst & Young (C‑633/16, EU:C:2018:371, paragraph 62), that termination did not lead to the implementation of the concentration, unlike in the present case, where the interim transaction had a direct functional link with the implementation of the concentration and constituted a partial implementation of the concentration.

250 Thirdly, as regards the applicant’s argument that MS Holding was free to exercise its voting rights, it has already been noted in paragraph 161 et seq. above that the matters in respect of which MS Holding had freedom to vote were greatly reduced.

251 Fourthly, as regards the applicant’s argument that the documents relating to the potential acquisition of Wako demonstrate the independence of MS Holding, it has already been noted in paragraph 180 above that the Commission’s intention was not to suggest that the applicant had unduly interfered in TMSC’s commercial decisions.

252 It follows from those elements that the control exercised by Toshiba over TMSC was only temporary, which goes to demonstrate that the interim transaction was a necessary step for the implementation of the single concentration.

253 The applicant’s argument that the temporary nature of the control exercised by MS Holding is irrelevant must therefore be rejected.

(4) The argument that the contested decision is wrongly based on the concept of ‘relinquishing’ of control

254 The applicant claims that the relinquishing of control is irrelevant under the rules applicable to merger control. The existing notification requirements in merger control do not become applicable as a result of ‘giving up control’, but only following the ‘acquisition of control’. In that regard, paragraph 61 of the judgment of 31 May 2018, Ernst & Young (C‑633/16, EU:C:2018:371), confirms that only changes conferring an element of control on the acquirer are relevant. The applicant adds that, while, in the present case, the transfer of shares to MS Holding implied a loss of control on the part of Toshiba, it did not in any way confer on the applicant any control over MS Holding.

255 The Commission contests the applicant’s arguments.

256 It should first be recalled that the actual acquisition of control, according to the judgment of 31 May 2018, Ernst & Young (C‑633/16, EU:C:2018:371), is not necessary for a concentration to be partially implemented.

257 Next, it should be noted that the circumstances of the case which gave rise to the judgment of 31 May 2018, Ernst & Young (C‑633/16, EU:C:2018:371), differ from those in the present case.

258 Paragraphs 12 and 13 of the judgment of 31 May 2018, Ernst & Young (C‑633/16, EU:C:2018:371), state that the KPMG Denmark companies were not structurally integrated into the KPMG International network and that the undertakings were autonomous and independent from a competition law perspective. As can be seen from paragraph 14 of the judgment, the companies were bound by a cooperation agreement which could be terminated unilaterally by either party, subject to notice. Thus, in the transaction at issue, the KPMG Denmark companies publicly terminated the agreement. The unilateral termination of the agreement was sufficient to sever the link with KPMG International, and thus no interdependence with Ernst & Young was created. In paragraphs 61 and 62 of that judgment, the Court held, inter alia, that, by the termination by the KPMG Denmark companies of their cooperation agreement with KPMG International, Ernst & Young had not acquired the possibility of exercising any influence over KPMG Denmark, which, from the point of view of competition law, was independent both before and after the termination, and that the termination of a cooperation agreement, in circumstances such as those in the main proceedings, could not be regarded as leading to the implementation of a concentration.

259 By contrast, in the present case, as set out in recitals 16, 34, 126 and 138 of the contested decision and as is apparent from recitals 155 to 159 thereof, TMSC, prior to the interim transaction, was a wholly owned subsidiary of Toshiba, worth EUR 5.28 thousand million. Therefore, by ‘relinquishing’ its control over TMSC, Toshiba did not carry out a unilateral transaction without consideration. It relinquished control in exchange for an irrevocable payment of EUR 5.28 thousand million received from the applicant on 18 March 2016 and a payment of EUR 800 received from MS Holding. The interim transaction was therefore not a genuine giving up of control, but a transfer of control.

260 Given the difference between the facts of the present case and those of the case which gave rise to the judgment of 31 May 2018, Ernst & Young (C‑633/16, EU:C:2018:371), the applicant cannot rely on the consideration given by the Court in that judgment to the termination of the cooperation agreement.

261 The applicant is therefore wrong to argue, citing paragraph 61 of the judgment of 31 May 2018, Ernst & Young (C‑633/16, EU:C:2018:371), that it confirms that only changes which confer an element of control on the acquirer are relevant.

262 Furthermore, the applicant’s interpretation would run counter to other provisions of the judgment of 31 May 2018, Ernst & Young (C‑633/16, EU:C:2018:371), since, as already noted (see paragraph 70 above), the Court established in that judgment that the concept of the ‘implementation of a concentration’ as provided for in Articles 4(1) and 7(1) of Regulation No 139/2004 is not limited to the situation in which the ultimate purchaser acquires control of the target undertaking, but also covers any transaction which ‘contributes’ to such a change of control.

263 It therefore appears that the Commission’s conclusion, in recital 143 of the contested decision, that the interim transaction is necessary for the change of control over TMSC, does not have as a ‘basis’ the ‘concept of relinquishing’, but is based on the circumstances of the interim transaction, which achieves the giving up by Toshiba of its control over TMSC and thereby contributes to the transfer of that control.

264 The fact that Toshiba no longer had control of TMSC is therefore a relevant criterion.

(5) The argument that the comparison between the Ernst & Young case and the present case is wrong

265 The applicant disputes the existence of the elements of differentiation identified in recitals 155 to 159 of the contested decision between the case which gave rise to the judgment of 31 May 2018, Ernst & Young (C‑633/16, EU:C:2018:371), and the present case.

266 In paragraph 61 of the judgment of 31 May 2018, Ernst & Young (C‑633/16, EU:C:2018:371), the Court found that the termination of the agreement concerned only one of the parties to the concentration and a third party, that, through the termination, Ernst & Young had not acquired the possibility of exercising any influence over the KPMG Denmark companies and that those companies were independent, both before (according to paragraph 12 of that judgment, they were not structurally integrated into the KPMG International network, but bound by a cooperation agreement) and after that termination.

267 In the present case, the Commission concluded, in recital 143 of the contested decision, that the interim transaction contributed, at least in part, to the change of control of the target undertaking within the meaning of the judgment of 31 May 2018, Ernst & Young (C‑633/16, EU:C:2018:371). In particular, it found in recital 155 of that decision that, contrary to what was noted in paragraph 61 of that judgment, the interim transaction in the present case did not involve only one of the merging parties and a third party, that the applicant had acquired the possibility of exercising a certain degree of influence over TMSC as a result of the interim transaction, and that TMSC was not an independent company prior to the interim transaction, since it was controlled by Toshiba, and that, as a result of the interim transaction, Toshiba’s control over TMSC had been relinquished.

268 Those three elements are contested by the applicant.

(i) The argument that the interim transaction was not a ‘tripartite operation’

269 According to the applicant, the arguments in recital 156 of the contested decision that the interim transaction was ‘not a transaction concerning only one of the merging parties and a third party’ and in recitals 150, 151 and 155 et seq. of that decision that the interim transaction was a ‘tripartite operation’ in which the applicant was heavily involved and that the applicant had already paid the full price at that stage are untenable. The allegation in recital 150 of that decision that the applicant was involved in the MS Holding transaction is incorrect. As is clear from the wording of the agreement between Toshiba and MS Holding and as confirmed by Toshiba in a letter to the Commission dated 18 December 2017, the applicant was not a party to that agreement. There is no doubt that the agreement with MS Holding was not a ‘tripartite’ agreement. Furthermore, it is misleading to state that, in the Ernst & Young case, the prospective purchaser was not involved in the relevant step, namely the termination of the cooperation agreement between the KPMG Denmark companies and KPMG International. The Ernst & Young case, on the contrary, had strong ‘tripartite’ elements, as three parties were involved in the transaction: Ernst & Young signed the merger agreement with the KPMG Denmark companies before the KPMG Denmark companies terminated their agreement with KPMG International.

270 The Commission contests the applicant’s arguments.

271 As a preliminary point, it should be noted that, in the judgment of 31 May 2018, Ernst & Young (C‑633/16, EU:C:2018:371), the Court had to answer essentially two questions in the context of a reference for a preliminary ruling: one concerned the criteria for determining whether a transaction falls within the prohibition set out in Article 7(1) of Regulation No 139/2004, and the other concerned whether the termination of a cooperation agreement, in circumstances such as those in the present case, results in the implementation of a concentration. The Court therefore answered the first of those questions independently of the facts of this case.

272 In the present case, as the Commission explains, it considered in the contested decision that the interim transaction was a tripartite structure on the grounds that, as explained in recital 33(c) and recital 36 of the contested decision, the agreements between, on the one hand, Toshiba and MS Holding and, on the other hand, Toshiba and the applicant were interdependent.

273 While the applicant disputes that the performance of the contract which it concluded with Toshiba depended on the performance of the contract which it concluded with MS Holding, it is important to note that it does not dispute that the contract between MS Holding and Toshiba depended on the performance of the contract which it concluded with Toshiba.

274 Other factors confirm that ‘tripartite’ dimension. As noted in paragraph 129 above, it was the applicant that proposed the new transaction structure to Toshiba (recital 119 of the contested decision). Moreover, it follows from recital 125 of the contested decision (see paragraph 146 above) that the applicant had received a copy of the ‘Excluded Share Transfer Agreement’, that it was invited to provide comments on that agreement and that it did so (as demonstrated by the emails between the applicant’s and Toshiba’s lawyers and those of MS Holding, exchanged between 7 and 15 March 2016; see footnote 170, to which recital 125 refers). Similarly, it follows from recital 125 that the applicant had the opportunity to propose changes to the agreement between Toshiba and MS Holding (as demonstrated by those emails; see footnote 173, to which recital 125 refers).

275 As regards the termination of the cooperation agreement between the KPMG Denmark companies and KPMG International, it should be noted that the Court held that that termination was a transaction involving only one of the parties to the concentration and a third party, namely KPMG International (judgment of 31 May 2018, Ernst & Young, C‑633/16, EU:C:2018:371, paragraph 61), and therefore not Ernst & Young.

276 Furthermore, the applicant claims that it was not a party to the agreement between MS Holding and Toshiba, isolating that agreement from the other elements of the transaction. Therefore, in its words, it considers its involvement in the interim transaction to be very limited and the interim transaction not to be a tripartite operation.

277 The contract between Toshiba and MS Holding cannot be isolated, since it is clear that Toshiba would not have relinquished its control over TMSC, worth EUR 5.28 thousand million, in return for the payment of EUR 800 by MS Holding. The involvement of the applicant was therefore necessary. Similarly, the contract between Toshiba and the applicant was not viable in isolation, since, in view of the deadlines imposed by the competition authorities, the transfer of control before the end of March 2016 could not be made to the applicant’s advantage. However, it was in order to obtain that control that the applicant paid the full value of TMSC to Toshiba before that date.

278 That is why the Commission was right to consider in the contested decision that the two agreements constituted a single interim tripartite transaction.

279 Furthermore, the applicant considers, in its words, that the case giving rise to the judgment of 31 May 2018, Ernst & Young (C‑633/16, EU:C:2018:371), had strong ‘tripartite’ elements in that three parties were involved in the transaction. It bases its reasoning on the fact that KPMG Denmark, in its merger agreement with Ernst & Young, provided that, on the day of signing, KPMG Denmark should announce its subsequent withdrawal from its cooperation agreement with KPMG International with a view to a merger with Ernst & Young. In its reasoning, the applicant takes into account Ernst & Young’s ‘involvement’ in the transaction as a whole, hence the ‘tripartite’ element, without isolating the whistleblowing transaction, whereas in the present case, as just noted, it isolates the agreement between MS Holding and Toshiba in order to develop its argument against the tripartite nature of that agreement.

280 In the alternative, the analogy as to the tripartite nature of the two cases is incorrect, since the applicant does not take TMSC into account as a party in the present case, whereas, in the Ernst & Young case, the applicant takes into account all the parties involved, including the target company, in order to consider that it is a ‘tripartite’ case. According to the applicant’s logic, TMSC, as a target company, is a fourth party.

281 The applicant’s claim that its involvement in the transaction between Toshiba and MS Holding was similar to that of Ernst & Young when KPMG Denmark terminated the cooperation agreement is therefore incorrect.

(ii) The argument that, in the Ernst & Young case, the merger agreement already determined the future owner

282 The applicant claims that the argument that it was in a position to determine the future owner of TMSC is irrelevant. The applicant adds that, in the Ernst & Young case, although the buyer had already entered into a merger agreement and it was therefore certain, at the time of the termination of the cooperation agreement, that Ernst & Young would become the future owner, the Court did not consider that factor to be one which could lead to the early implementation of a concentration. Finally, to argue, in recital 134 of the contested decision, that ‘during the interim period, [it] did not did not exercise control over TMSC’ and, in recital 155 of that decision, that it ‘acquired the possibility to exercise some degree of influence’ is intrinsically contradictory.

283 The Commission contests the applicant’s arguments.

284 The question whether the fact that the applicant was in a position to determine the future ownership of TMSC is relevant was the subject of the third subsection examined above.

285 As regards the comparison with the case giving rise to the judgment of 31 May 2018, Ernst & Young (C‑633/16, EU:C:2018:371), as the Commission points out, the merger agreement in that case only determined the future owner of the target company in the event that the merger was authorised. If the Danish competition authority had prohibited the transaction, Ernst & Young would not have had the power to determine the future owner of the KPMG Denmark companies. That comparison is therefore not relevant.

286 As regards the alleged contradiction between the Commission’s assertions in the contested decision that the applicant ‘did not control TMSC’ but had ‘acquired the possibility to exercise some degree of influence’, firstly, there is no contradiction between those two concepts.

287 Control presupposes the ‘possibility of exercising decisive influence on an undertaking’ (Article 3(2) of Regulation No 139/2004). In the contested decision, the expressions ‘influence’ (for example, recitals 135 and 157 of that decision) or ‘some degree of influence’ (recital 155 of that decision) do not presuppose a ‘decisive’ character of that influence.

288 Therefore, the statements that the applicant ‘did not control TMSC’ and that it had ‘acquired the possibility to exercise some degree of influence’ are not contradictory.

289 Secondly, it should be noted that the implementation of a concentration presupposes a change of control on a lasting basis (see Article 3(1) of Regulation No 139/2004), and that it is possible to achieve the implementation of the concentration by ‘successive partial operations’ (see, to that effect, judgment of 31 May 2018, Ernst & Young, C‑633/16, EU:C:2018:371, paragraph 47). Therefore, in the contested decision, the Commission, relying on the concept of a single concentration, did not investigate whether the interim transaction, as such, had transferred control to the applicant, but whether the interim transaction was necessary for that transfer (recital 154 of the contested decision).

290 The Commission was therefore able to conclude, in recital 157 of the contested decision, that, even if the applicant had not controlled TMSC between the interim and ultimate transactions, only it could ultimately dispose of the controlling shares in TMSC, either by exercising its share options or, in the unlikely event of the competition authorities refusing to authorise the concentration, by selling its share options to the purchaser of its choice. The Commission stated that, as a result, the applicant had undoubtedly acquired the possibility of exercising influence over the future of TMSC, given that, from the moment of the interim transaction, it had the sole power to determine the identity of the ultimate acquirer of TMSC.

291 Therefore, the comparison made by the applicant with the case giving rise to the judgment of 31 May 2018, Ernst & Young (C‑633/16, EU:C:2018:371), concerning the question of the ability to determine the future owner of TMSC is incorrect.

(iii) The argument that the fact that TMSC was not independent before the interim transaction is irrelevant

292 According to the applicant, the fact, set out in recital 159 of the contested decision, that, prior to the interim transaction, TMSC was not an independent undertaking is irrelevant, since the essential question is whether the potential buyer had acquired the possibility of exercising influence over the target. Furthermore, TMSC was always an independent company and continued its activities in the same way after its separation from Toshiba. Finally, the Commission’s claim that the independence issue was different in the case that gave rise to the judgment of 31 May 2018, Ernst & Young (C‑633/16, EU:C:2018:371), is wrong. It is misleading to present the KPMG Denmark companies as entirely independent during the period of validity of the cooperation agreement with KPMG International, which contained significant restrictions on business decisions. Although the Court emphasised that the member companies of the KPMG network were autonomous and independent from the point of view of competition law, that should not be confused with the concept of control.

293 The Commission contests the applicant’s arguments.

294 As regards the applicant’s argument that the fact, set out in recital 159 of the contested decision, that, prior to the interim transaction, TMSC was not an independent undertaking is irrelevant, it must be rejected. That finding is important in order to mark the difference between the case which gave rise to the judgment of 31 May 2018, Ernst & Young (C‑633/16, EU:C:2018:371), and the present case.

295 In that regard, in the case giving rise to the judgment of 31 May 2018, Ernst & Young (C‑633/16, EU:C:2018:371), the Court did not consider the termination of the cooperation agreement between the KPMG Denmark companies and KPMG International to be a transaction contributing to the change of control, inter alia, because the KPMG Denmark companies were, from the point of view of competition law, independent both before and after that termination (see, to that effect, judgment of 31 May 2018, Ernst & Young, C‑633/16, EU:C:2018:371, paragraph 61). In the present case, on the contrary, as the Commission notes in recital 155 of the contested decision, TMSC was not independent before the interim transaction, as it was controlled by Toshiba and, following the interim transaction, it was no longer under Toshiba’s control. Furthermore, the fact that TMSC was not independent prior to the interim transaction is an important element in the assessment of the facts, irrespective of the circumstances of the case giving rise to the judgment of 31 May 2018, Ernst & Young (C‑633/16, EU:C:2018:371). The fact that TMSC was dependent on Toshiba’s interests, prior to the interim transaction, was an important element in the research of the economic reality underlying the interim transaction and the ultimate transaction within the meaning of paragraph 106 of the judgment of 23 February 2006, Cementbouw Handel & Industrie v Commission (T‑282/02, EU:T:2006:64) (see paragraph 111 above).

296 As regards the applicant’s argument that TMSC has always been an autonomous undertaking in relation to Toshiba, as the Commission points out, it is contradictory to the applicant’s indications that TMSC continued to operate in the same way after its ‘separation’ from Toshiba and that the shares, and therefore control, of TMSC held by Toshiba were transferred to MS Holding. The applicant also stated itself that ‘the transfer of shares to MS Holding implied a loss of control on the part of Toshiba’ (see paragraph 254 above).

297 Moreover, that argument of the applicant clearly contradicts Toshiba’s explanations, in its letter to the Commission of 18 December 2017, as to why the ‘80/20’ structure was not a satisfactory solution. According to Toshiba’s explanation, it was necessary for it to ‘give up control of TMSC’ before the end of the 2015 financial year, that is to say, before 31 March 2016.

298 In any event, the applicant does not dispute that, prior to the interim transaction, TMSC was a subsidiary of Toshiba (see paragraph 2 above). The fact that TMSC enjoyed considerable independence in its day-to-day activities does not mean that it was not under the control of its parent company.

299 As regards the applicant’s argument that it would be misleading to present the KPMG Denmark companies as fully independent during the period of validity of the cooperation agreement with KPMG International, the Court has made it clear that each of those companies was an autonomous and independent undertaking from the point of view of competition law, both before and after the termination of the cooperation agreement (see, to that effect, judgment of 31 May 2018, Ernst & Young, C‑633/16, EU:C:2018:371, paragraphs 13 and 61).

300 Even if, as the applicant points out, the Court found that the cooperation agreement contained clauses relating to the allocation of clients, the obligation to service clients from other States and annual compensation for participation in the network (judgment of 31 May 2018, Ernst & Young, C‑633/16, EU:C:2018:371, paragraph 13), in any event, the applicant cannot argue that the issue of independence would not be different in the case giving rise to the judgment of 31 May 2018, Ernst & Young (C‑633/16, EU:C:2018:371), given that, as noted, Toshiba had full ownership of TMSC prior to the interim transaction.

301 It follows from the foregoing that the fifth subsection and, consequently, the second part as a whole must be rejected.

3. The third part, alleging manifest errors in the application of the concept of ‘partial implementation of a “single concentration”’

302 First of all, the applicant intends to highlight the context in which the contested decision was taken. According to the applicant, the Commission cannot rely on the concept of a ‘single concentration’ to establish the existence of an infringement of Articles 4(1) and 7(1) of Regulation No 139/2004. The Commission confuses two different concepts, namely, on the one hand, the concept of a single concentration, which concerns the question of jurisdiction and makes it possible to determine whether two different transactions must be notified jointly to the Commission, that is to say, in particular, to ascertain whether the turnover of the two transactions must be combined in the context of calculating the notification thresholds, and, on the other hand, the concept of a concentration in the context of the alleged early implementation of a concentration in breach of Article 4(1) and Article 7(1) of Regulation No 139/2004. The applicant adds that it is because the Commission has found no evidence that the applicant controlled TMSC from the interim transaction that it developed a novel and unprecedented theory of ‘partial implementation of a single concentration’. In that way, the Commission intends, in an abusive manner, to establish a new rule prohibiting so-called parking structures, even when they do not lead to an acquisition of control prior to clearance.

303 The Commission contests the applicant’s arguments.

304 As regards the applicant’s argument that the concept of a single concentration concerns only the question of the Commission’s competence, depending on whether or not certain thresholds are met, but not the question of the possible infringement of Articles 4(1) and 7(1) of Regulation No 139/2004, it is sufficient to note that the Court has had occasion to observe that arguments which would lead to the inclusion of transactions in the concept of a single concentration would de facto lead to their inclusion in the scope of Article 7 of Regulation No 139/2004 (see, to that effect, judgment of 4 March 2020, Marine Harvest v Commission, C‑10/18 P, EU:C:2020:149, paragraph 53). Thus, whatever falls within the concept of a ‘single concentration’ falls within the scope of Article 7 of Regulation No 139/2004 and therefore, logically, within that of Article 4 of that regulation.

305 As to the applicant’s argument that the Commission intended to establish a new rule prohibiting so-called parking structures, even where they do not lead to an acquisition of control prior to clearance, that assertion must be qualified.

306 As already noted in paragraph 73 above, it follows from the judgment of 31 May 2018, Ernst & Young (C‑633/16, EU:C:2018:371), that, in order to determine whether Articles 4(1) and 7(1) of Regulation No 139/2004 have been infringed, it is not essential that there has been an acquisition of control of the target undertaking. It may be sufficient that the transaction in question contributed, in whole or in part, in fact or in law, to the change of control of that undertaking.

307 However, it is true that that is the first time that the Commission has found a breach of the notification and standstill obligations in the context of a single concentration involving a parking structure.

308 In support of its third part, the applicant develops its argument around three points.

(a) The argument that the concept of a ‘single concentration’ cannot be based on recital 20 of Regulation No 139/2004

309 According to recital 20, in fine, of Regulation No 139/2004, it is appropriate ‘to treat as a single concentration transactions that are closely connected in that they are linked by condition or take the form of a series of transactions in securities taking place within a reasonably short period of time’.

310 The applicant claims that the Commission failed to prove, in the contested decision, that there was a conditional link between the interim and ultimate transactions. If the necessary clearance in the control procedure had not been obtained, the applicant would have been able to find a third party buyer for the share options. Furthermore, according to the applicant, the Commission’s conclusion in the contested decision as to the existence of a single concentration cannot be based on recital 20 of Regulation No 139/2004, as found both by the General Court in the judgment of 26 October 2017, Marine Harvest v Commission (T‑704/14, EU:T:2017:753), and by the Court of Justice in the judgment of 4 March 2020, Marine Harvest v Commission (C‑10/18 P, EU:C:2020:149). The applicant further points out that, in paragraph 126 of its judgment of 26 October 2017, Marine Harvest v Commission (T‑704/14, EU:T:2017:753), the General Court stated that it cannot be inferred from the judgment of 23 February 2006, Cementbouw Handel & Industrie v Commission (T‑282/02, EU:T:2006:64), that, whenever several transactions are interdependent, they necessarily constitute a single concentration. Finally, the applicant points out that, according to recital 20 of Regulation No 139/2004, the concept of a single concentration is relevant only in two situations: where two transactions are subject to a conditional link and where they are carried out within a reasonably short period. The present case does not correspond to either of those two situations. Those two acquisitions were not made within a reasonably short period of time, since it is only nine months after the interim transaction that the applicant was able to exercise its share options.

311 The Commission contests the applicant’s arguments.

312 As regards the applicant’s argument that the Commission did not provide evidence in the contested decision of the existence of a conditional link between the interim and ultimate transactions, it is sufficient to note that it is incorrect, as was found in paragraphs 228 to 235 above.

313 In that regard, the fact that it was not absolutely certain that the competition authorities would give the necessary clearance cannot undermine that finding.

314 Apart from the fact that, as the applicant itself states, the likelihood of obtaining clearance was high, a refusal by the competition authorities would not have led to the termination of the transaction. The price for TMSC was irreversibly paid by the applicant to Toshiba, which was able to enter it in its accounts in good time. It is therefore irrelevant whether the applicant is the ultimate acquirer of TMSC or whether it should have sold it to a third party purchaser of its choice.

315 As regards the applicant’s argument that the Commission could not base its conclusion, in the contested decision, of the existence of a single concentration on recital 20 of Regulation No 139/2004, it is true that, as the General Court noted in paragraph 91 of the judgment of 26 October 2017, Marine Harvest v Commission (T‑704/14, EU:T:2017:753), the concept of a ‘single concentration’ appears only in recital 20 of Regulation No 139/2004 and not in the articles of that regulation (judgment of 4 March 2020, Marine Harvest v Commission, C‑10/18 P, EU:C:2020:149, paragraph 42).

316 In paragraph 150 of the judgment of 26 October 2017, Marine Harvest v Commission (T‑704/14, EU:T:2017:753), the Court held that that recital did not contain an exhaustive definition of the circumstances in which two transactions constitute a single concentration. It relied in this respect on the specific nature of that recital, which, although it may cast light on the interpretation to be given to a legal rule, cannot, since it has no binding legal force of its own, constitute such a rule (judgment of 4 March 2020, Marine Harvest v Commission, C‑10/18 P, EU:C:2020:149, paragraph 43).

317 While recital 20 of Regulation No 139/2004 may serve as a basis for interpreting the provisions of that regulation, it cannot reasonably infer from the wording of that recital alone an interpretation of the concept of a ‘single concentration’ which is not consistent with those provisions. To that effect, the Court has moreover had occasion to state, on several occasions, that the preamble to an EU act has no binding legal force and cannot be validly relied on either as a ground for derogating from the actual provisions of the act in question or for interpreting those provisions in a manner clearly contrary to their wording (judgment of 4 March 2020, Marine Harvest v Commission, C‑10/18 P, EU:C:2020:149, paragraph 44).

318 In the present case, it must be noted that the Commission did not base the contested decision solely on recital 20 of Regulation No 139/2004, but on Article 3 of Regulation No 139/2004, interpreted in the light of that recital.

319 As regards the applicant’s argument based on paragraph 126 of the judgment of 26 October 2017, Marine Harvest v Commission (T‑704/14, EU:T:2017:753), it is correct that the Court stated there, in response to an argument of the applicant in that case, based on the concept of the conditional link as referred to in recital 20 of Regulation No 139/2004, that it cannot be inferred from paragraph 107 of the judgment of 23 February 2006, Cementbouw Handel & Industrie v Commission, T‑282/02, EU:T:2006:64), according to which, in order to determine the unitary nature of the transactions at issue, it is necessary, in each individual case, to assess whether those transactions are interdependent in such a way that one would not have been carried out without the other, that, whenever several transactions are interdependent, they necessarily constitute a single concentration.

320 However, it should be noted that the circumstances of that case differ from the present case.

321 That case concerned the acquisition of the Norwegian salmon producer and processor Morpol. In a first step, the acquirer entered into a share purchase agreement by which it acquired, without prior notification, 48.5% of the share capital of Morpol. In a second step, it acquired the remaining shares by launching a mandatory public tender offer for them.

322 The Court found that, in that case, there had already been an acquisition of control upon the conclusion of the share purchase agreement (judgment of 26 October 2017, Marine Harvest v Commission, T‑704/14, EU:T:2017:753, paragraph 132).

323 Therefore, the Court concluded that it cannot be inferred from the judgment of 23 February 2006, Cementbouw Handel & Industrie v Commission (T‑282/02, EU:T:2006:64), that, in a situation in which the acquisition of control of a single target undertaking has taken place by means of a single transaction, it is necessary to consider that transaction as part of a single concentration, where the share buy-back that led to the acquisition of control and a subsequent mandatory takeover bid are interdependent (judgment of 26 October 2017, Marine Harvest v Commission, T‑704/14, EU:T:2017:753, paragraph 133).

324 Therefore, as the Commission points out, the limitation provided for in paragraph 126 of the judgment of 26 October 2017, Marine Harvest v Commission (T‑704/14, EU:T:2017:753), was merely intended to exclude the specific situation described in paragraph 133 of that judgment and not to reject the concept of a single concentration.

325 Moreover, the Court has noted that the Commission has, in several decisions, relied on the concept of a ‘single concentration’ (judgment of 26 October 2017, Marine Harvest v Commission, T‑704/14, EU:T:2017:753, paragraph 90), and it endorsed that concept, inter alia, in the judgment of 23 February 2006, Cementbouw Handel & Industrie v Commission (T‑282/02, EU:T:2006:64).

326 Finally, it should be pointed out that the Court, in its judgment of 4 March 2020, Marine Harvest v Commission (C‑10/18 P, EU:C:2020:149), dismissed the appeal against the judgment of 26 October 2017, Marine Harvest v Commission (T‑704/14, EU:T:2017:753).

(b) The argument that paragraph 35 of the CJN provides an insufficient basis for the Commission’s concepts of ‘single concentration’ and ‘partial implementation’

(1) The argument that the CJN is not a sufficient legal basis and is not legally binding

327 First, the applicant submits that the CJN is not the appropriate legal basis for the early implementation of a concentration, since it does not address the question of when a concentration is implemented within the meaning of Article 7(1) of Regulation No 139/2004. Even if it were possible to characterise ‘parking transactions’ within the meaning of paragraph 35 of the CJN as a ‘single concentration’, that paragraph of the CJN would not imply that a ‘partial implementation’ of a ‘parking structure’ constitutes an infringement of Article 4(1) [or] Article 7(1) of Regulation No 139/2004. Secondly, the applicant submits that where the CJN departs from Regulation No 139/2004 and the relevant case-law, it is not binding on the parties.

328 The Commission contests the applicant’s arguments.

329 As regards the applicant’s argument that the CJN is not a sufficient legal basis, it should be noted that, in recital 75 of the contested decision, the Commission stated that, in order to determine whether several transactions form part of a single concentration, it is necessary to focus on ‘the economic aim pursued by the parties’, in accordance with the judgment of 23 February 2006, Cementbouw Handel & Industrie v Commission (T‑282/02, EU:T:2006:64, paragraph 106) (see paragraph 111 above).

330 Moreover, in recital 99(b) of the contested decision, the Commission considered that ‘the interim transaction [had] contributed (at least in part) to the change in control of TMSC within the meaning of the judgment [of 31 May 2018, Ernst & Young (C‑633/16, EU:C:2018:371)] [; b]y carrying out the interim transaction, [the applicant] partially implemented the single concentration consisting in its acquisition of control over TMSC by [the applicant]’.

331 Finally, in recital 101 of the contested decision, the Commission explained that it considered that the interim and ultimate transactions constituted a single concentration within the meaning of Article 3 of Regulation No 139/2004 and the case-law of the Courts of the European Union, since, although legally distinct, they formed part of a single economic project by which the applicant acquired control of TMSC from Toshiba. In that recital, the Commission added that the successive transactions between Toshiba, MS Holding and the applicant closely corresponded to the type of single merger transaction structure described in paragraph 35 of the CJN.

332 Therefore, in the contested decision, the Commission applied the concept of a single concentration as interpreted by the Court in its judgment of 23 February 2006, Cementbouw Handel & Industrie v Commission (T‑282/02, EU:T:2006:64), and considered that the interim transaction had given rise to a partial implementation of a single concentration on the basis of Articles 4(1) and 7(1) of Regulation No 139/2004, as interpreted by the Court of Justice in the judgment of 31 May 2018, Ernst & Young (C‑633/16, EU:C:2018:371). Only in the alternative did the Commission refer to paragraph 35 of the CJN.

333 The applicant is therefore wrong to argue that the CJN is the legal basis for the contested decision.

334 As regards the applicant’s argument that the CJN is not legally binding on it, as has been noted, the contested decision is not based on the CJN. Nor is it based on the other paragraphs of the CJN.

335 The applicant’s argument that the CJN does not constitute a sufficient legal basis and is not legally binding must therefore be rejected.

(2) The argument that the conditions of paragraph 35 of the CJN are not fulfilled

336 The applicant submits that, assuming that paragraph 35 of the CJN is applicable to the present case, the conditions of a ‘parking arrangement’ are not fulfilled, since, first, according to that paragraph, the ‘interim buyer generally acquires shares “on behalf of” the ultimate acquirer’, whereas MS Holding did not acquire TMSC ‘on behalf of’ the applicant, and secondly, there was no ‘direct link’ or ‘agreement on the future onward sale’ between the ‘first buyer’ and the ‘ultimate acquirer’. In that respect, the applicant submits that MS Holding was entitled to exercise all voting rights in TMSC and that the directors of MS Holding had the right to transfer their shares, as they could transfer Class A shares without the approval of the applicant. A hypothetical transfer of Class A shares by the directors of MS Holding would have required only the approval of the directors of TMSC and MS Holding could easily have obtained that approval because of its power to remove or replace the entire board of directors of TMSC.

337 The Commission contests the applicant’s arguments.

338 It should be noted that paragraph 35 of the CJN referred to, as noted (see paragraphs 332 and 334 above), in the alternative in the contested decision does not constitute the legal basis for the contested decision.

339 Accordingly, the applicant’s argument that the conditions laid down in paragraph 35 of the CJN are not fulfilled must be rejected.

(3) The plea of illegality raised in the alternative with regard to paragraph 35 of the CJN

340 The applicant requests the General Court, on the basis of Article 277 TFEU, to declare paragraph 35 of the CJN inapplicable in so far as it was relied on in the present case as a basis for an infringement of Articles 4(1) and 7(1) of Regulation No 139/2004. In that connection, the applicant states that it wishes to avoid repetition and refers to the arguments set out in paragraph 327 above, according to which the CJN is not legally binding on it.

341 The Commission contests the applicant’s arguments.

342 It is sufficient to note that the applicant merely refers to its arguments in paragraph 327 above, which have already been rejected, and that it does not adduce any evidence to show that paragraph 35 of the CJN is unlawful.

343 The plea of illegality with regard to paragraph 35 of the CJN can therefore only be rejected.

(c) The argument that the judgment of 23 February 2006, Cementbouw Handel & Industrie v Commission (T‑282/02, EU:T:2006:64), does not concern an early implementation of a concentration and is therefore irrelevant

344 According to the applicant, the concept of ‘single concentration’ used in the contested decision cannot be based on paragraphs 104 to 109 of the judgment of 23 February 2006, Cementbouw Handel & Industrie v Commission (T‑282/02, EU:T:2006:64). The concept of ‘single concentration’, within the meaning of that judgment, allows, in the interests of administrative efficiency, the combined notification and control of several concentrations, but it does not allow the scope of Articles 4(1) and 7(1) of Regulation No 139/2004 to be extended to measures which do not as such constitute concentrations.

345 The Commission contests the applicant’s arguments.

346 It suffices to note that that argument has already been rejected in paragraph 304 above and should therefore also be rejected in the context of that third part.

4. The fourth part, according to which the ex ante merger control procedure has never been circumvented

(a) The argument that the parties never intended to circumvent the merger control system

347 The applicant claims that it follows from the objective of the standstill obligation that, as long as the structure of the transaction ensures that no change of control can take place before the Commission declares it compatible with the internal market, the effectiveness of the merger control system is preserved.

348 The Commission contests the applicant’s arguments.

349 It should first be noted that the Commission did not conclude in the contested decision that the applicant had attempted a ‘circumvention of the merger control system’, but based that decision on the finding, set out in recital 99(b) of the contested decision, that the interim transaction had partially contributed to the change of control of TMSC within the meaning of the judgment of 31 May 2018, Ernst & Young (C‑633/16, EU:C:2018:371) (see paragraph 330 above).

350 It should next be noted that, according to paragraph 47 of the judgment of 31 May 2018, Ernst & Young (C‑633/16, EU:C:2018:371) (see paragraphs 62 and 66 above), the fact that any partial implementation of a concentration falls within the scope of Article 7 of Regulation No 139/2004 (and therefore also within that of Article 4 of that regulation) satisfies the requirement of ensuring effective merger control, so as not to jeopardise the prior nature of the control provided for by that regulation and the pursuit of its objectives.

351 Furthermore, as already explained in paragraph 80 above, it is necessary that the Commission’s investigation, in order to be effective, be carried out not only prior to the acquisition of control, but also prior to the implementation, even partial, of the concentration.

352 The applicant’s argument concerning the preservation of the effectiveness of merger control must therefore be rejected.

(b) The necessary uniform application of EU law

353 The applicant claims that the Commission’s interpretation of the ‘standstill obligation’ under the merger control rules must also take account of the interpretation of the very similar standstill obligation under EU law on State aid in Article 3 of Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 of the Treaty on the Functioning of the European Union (OJ 2015 L 248, p. 9). Furthermore, the judgment of 7 September 2017, Austria Asphalt (C‑248/16, EU:C:2017:643, paragraphs 31 to 34), confirms that the interaction of Regulation No 139/2004 and Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 and 102 TFEU] (OJ 2003 L 1, p. 1) prevents any failure to apply EU law.

354 The Commission contests the applicant’s arguments.

355 It must be noted that, in the contested decision, the Commission could only follow the interpretation of Regulation No 139/2004 given by the Court in the judgment of 31 May 2018, Ernst & Young (C‑633/16, EU:C:2018:371) (see paragraph 61 et seq. above). The applicant’s arguments cannot call that finding into question.

356 Firstly, with regard to the comparison which the applicant seeks to make between Regulation No 139/2004 and Regulation 2015/1589, the applicant points out that, in the context of the standstill obligation under EU law on State aid, only the full implementation of a measure is capable of constituting an infringement, and that ‘partial implementation’ is not sufficient. The applicant explains that the Commission and the courts of the European Union (judgment of 15 February 2001, Austria v Commission, C‑99/98, EU:C:2001:94, paragraph 39) have repeatedly held that there is no reason to conclude that there has been early implementation where all the steps leading to the granting of aid have been completed and the payment of the aid is still subject to full or partial clearance by the Commission.

357 It must be noted that that argument of the applicant is in total contradiction with the principle of ex ante merger control which was recalled in paragraphs 355 and 356 above.

358 Secondly, as regards the comparison which the applicant intends to make between Regulation No 139/2004 and Regulation No 1/2003, and the reference which it makes to paragraphs 31 to 34 of the judgment of 7 September 2017, Austria Asphalt (C‑248/16, EU:C:2017:643), it should be pointed out that, in those paragraphs, the Court stated that only Regulation No 139/2004 was applicable to mergers as defined in Article 3 of that regulation, in respect of which, in principle, Regulation No 1/2003 is not applicable.

359 In the present case, the applicant does not claim that the purchase of TMSC does not constitute a ‘concentration’ within the meaning of Article 3 of Regulation No 139/2004, since it had notified the Commission of its plan to acquire sole control of TMSC within the meaning of Article 3(1)(b) of that regulation (see paragraphs 19 to 22 above).

360 The fourth part of the first plea in law and, consequently, the first plea in law as a whole must be rejected.

B. The second plea in law, alleging infringement of Article 14 of Regulation No 139/2004

361 The applicant requests the Court ‘to annul the contested decision regarding the fines, and/or to exercise its unlimited discretion to entirely cancel or substantially reduce the amount of fines’ pursuant to Article 16 of Regulation No 139/2004 and Article 261 TFEU.

362 The second plea in law is divided into five parts. The first part alleges lack of intent or negligence on the part of the applicant. In the alternative, the second part alleges breach of the principles of nulla poena sine lege and the protection of legitimate expectations. The third part alleges breach of the principle of proportionality and of the principle governing concurrent offences. The fourth part alleges an incorrect duration of the alleged infringement of Article 7(1) of Regulation No 139/2004. The fifth part alleges that the fines are excessive and disproportionate. Finally, in the third part, the applicant also raises, in the further alternative, a plea of illegality in relation to Article 14(2)(a) and (b) of Regulation No 139/2004.

1. The first part, alleging lack of intent or negligence on the part of the applicant

363 The applicant claims that the Commission ‘incorrectly assumed intent or negligence on its part’. On the one hand, whereas intention requires the competent decision-makers to have been aware of the unlawful nature of their conduct, the structure was intended to comply with Regulation No 139/2004. On the other hand, firstly, the contested decision does not refer to any relevant previous practice or case-law clearly establishing the illegality of the structure at issue. Secondly, the contested decision attempts, on the contrary, to minimise the importance of the relevant precedent: in the judgment of 13 September 2010, Éditions Odile Jacob v Commission (T‑279/04, not published, EU:T:2010:384), the Court clearly accepted a parking structure on the ground that no control had been transferred. Thirdly, the Commission cannot rely on paragraph 35 of the CJN to establish that the applicant acted negligently, as the conditions set out in that paragraph do not apply. Therefore, the applicant, having no doubt as to the legality of the structure, had no reason to consult the Commission.

364 The Commission contests the applicant’s arguments.

365 It should be noted that, according to Article 14(2) of Regulation No 139/2004, the Commission may impose fines for violations committed ‘intentionally or negligently’.

366 As regards the question whether an infringement was committed intentionally or negligently, it follows from the case-law that that condition is satisfied where the undertaking concerned cannot be unaware of the anticompetitive nature of its conduct, whether or not it was aware that it was infringing the competition rules (judgment of 26 October 2017, Marine Harvest v Commission, T‑704/14, EU:T:2017:753, paragraph 237).

367 The fact that the undertaking concerned has characterised wrongly in law conduct upon which the finding of the infringement is based cannot have the effect of exempting it from imposition of a fine in so far as it could not be unaware of the anticompetitive nature of that conduct. An undertaking may not escape imposition of a fine where the infringement of the competition rules has resulted from that undertaking erring as to the lawfulness of its conduct on account of the terms of legal advice given by a lawyer (judgment of 26 October 2017, Marine Harvest v Commission, T‑704/14, EU:T:2017:753, paragraph 238).

368 It is in the light of those considerations that it is necessary to examine whether the Commission was right to conclude in the contested decision that the applicant acted negligently in implementing the transaction in breach of Articles 4(1) and 7(1) of Regulation No 139/2004.

369 As regards the applicant’s argument that the Commission erred in finding that it had acted intentionally, since it was solely on the basis of the negligence test that the Commission found that the applicant had infringed those provisions, it must be rejected as inoperative.

370 Concerning the applicant’s arguments relating to the absence of negligence, with regard to the fact that the contested decision does not refer to any relevant practice or previous case-law clearly establishing the unlawfulness of the structure at issue, it should be noted that the mere fact that, at the time when an infringement is committed, the Courts of the European Union have not yet had the opportunity to rule specifically on particular conduct does not preclude, as such, the possibility that an undertaking may have to expect its conduct to be declared incompatible with the EU competition rules (judgment of 26 October 2017, Marine Harvest v Commission, T‑704/14, EU:T:2017:753, paragraph 389).

371 Furthermore, the fact that conduct with the same characteristics has not yet been examined in previous decisions does not exonerate the undertaking from liability (see, to that effect, judgment of 1 July 2010, AstraZeneca v Commission, T‑321/05, EU:T:2010:266, paragraph 901).

372 In addition, the applicant does not dispute the findings in recital 174 of the contested decision that, first, it is a large multinational company with significant legal resources and, secondly, it has already been involved in merger control proceedings before the Commission.

373 It can therefore be considered that the applicant was aware of the European Union’s merger control rules and the obligations which those rules entail.

374 In any event, if the applicant had the slightest doubt as to the compatibility of those clauses with Articles 4(1) and 7(1) of Regulation No 139/2004, it was incumbent on it to consult the Commission. In the event of doubt as to its obligations under Regulation No 139/2004, the appropriate course of action for an undertaking is to approach the Commission (see judgment of 26 October 2017, Marine Harvest v Commission, T‑704/14, EU:T:2017:753, paragraph 256 and the case-law cited).

375 The applicant’s arguments cannot call that conclusion into question.

376 As regards the judgment of 13 September 2010, Éditions Odile Jacob v Commission (T‑279/04, not published, EU:T:2010:384), as can be seen from paragraphs 88 to 96 above, the Court did not find that the partial implementation of a single concentration structured by a parking transaction, prior to notification and clearance, complied with Articles 4(1) and 7(1) of Regulation No 139/2004.

377 With regard to paragraph 35 of the CJN, it should be recalled that paragraph 35 of the CJN does not constitute the legal basis for the contested decision.

378 The Commission therefore rightly concluded, in recital 201 of the contested decision, that the applicant had acted at least negligently when it infringed Articles 4(1) and 7(1) of Regulation No 139/2004.

379 The first part of the second plea in law must therefore be rejected.

2. The second part, alleging breach of the principles of nulla poena sine lege and of the protection of legitimate expectations

380 The applicant claims that the contested decision infringes the principle of nulla poena sine lege, since, whereas Article 49 of the Charter and Article 7 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, require that an offence be clearly defined by law, neither Regulation No 139/2004 nor the case-law contains ‘clear and precise’ indications that a ‘partial implementation’ such as that described in the contested decision would, in the absence of any acquisition of control, be capable of falling within the scope of Article 4(1), Article 7(1) and Article 14(2)(a) and (b) of that regulation. Acceptance of the concept of partial implementation also infringes the principle of the protection of legitimate expectations, since the applicant relied on Commission Decision 2004/422/EC of 7 January 2004 declaring a concentration compatible with the common market and the functioning of the EEA Agreement (Case COMP/M.2978 – Lagardère/Natexis/VUP) (OJ 2004 L 125, p. 54) and on the judgment of 13 September 2010, Éditions Odile Jacob v Commission (T‑279/04, not published, EU:T:2010:384).

381 The Commission contests the applicant’s arguments.

382 It should be noted that the principle that offences and penalties must be defined by law (nullum crimen, nulla poena sine lege) cannot be interpreted as precluding the gradual clarification of rules by judicial interpretation (judgment of 28 June 2005, Dansk Rørindustri and Others v Commission, C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraph 217). The Court has already indicated that, according to the case-law of the European Court of Human Rights, however clearly a legal provision is drafted, there is inevitably a need for interpretation by the courts and it will always be necessary to elucidate points of doubt and to adapt the wording to changing circumstances (judgment of 8 July 2008, AC-Treuhand v Commission, T‑99/04, EU:T:2008:256, paragraph 141).

383 Nevertheless, while the principle of legality of offences and penalties (nullum crimen, nulla poena sine lege) allows, in principle, for the gradual clarification of the rules of liability through judicial interpretation, it may preclude the retroactive application of a new interpretation of a norm establishing an offence. That is particularly so if the result of that interpretation was not reasonably foreseeable at the time of the commission of the offence, in particular in view of the interpretation adopted at that time in the case-law relating to the legal provision in question. Moreover, the concept of foreseeability depends to a large extent on the content of the text in question, the field it covers and the number and quality of its addressees, and it does not preclude the person concerned from having recourse to informed advice in order to assess, to a degree which is reasonable in the circumstances of the case, the consequences which may result from a given act. That is especially true of professionals, who are accustomed to having to exercise great caution in the exercise of their profession. They may therefore be expected to take particular care to assess the risks involved (judgments of 28 June 2005, Dansk Rørindustri and Others v Commission, C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraphs 217 to 219, and of 8 July 2008, AC-Treuhand v Commission, T‑99/04, EU:T:2008:256, paragraph 142).

384 It follows from those considerations that the interpretation of the scope of Article 4(1), Article 7(1) and Article 14(2)(a) and (b) of Regulation No 139/2004 must have been sufficiently foreseeable, at the stage of the commission of the acts complained of, in the light of the wording of those provisions, as interpreted by the case-law (see, by analogy, judgment of 8 July 2008, AC-Treuhand v Commission, T‑99/04, EU:T:2008:256, paragraph 143).

385 Finally, it follows from the case-law that the principle of legality applies both to rules of a criminal nature and to specific administrative instruments imposing or permitting the imposition of administrative penalties and that it applies not only to rules which establish the constituent elements of an offence, but also to those which define the consequences which flow from an infringement of the former (see judgment of 26 October 2017, Marine Harvest v Commission, T‑704/14, EU:T:2017:753, paragraph 378 and the case-law cited).

386 In the present case, it should be noted that the judgments of 31 May 2018, Ernst & Young (C‑633/16, EU:C:2018:371), and of 4 March 2020, Marine Harvest v Commission (C‑10/18 P, EU:C:2020:149), were delivered after the interim transaction.

387 However, it should be recalled that it is clear from the wording of Articles 4(1) and 7(1) of Regulation No 139/2004 that a concentration with a Community dimension must be notified before it is implemented and that it must not be implemented without prior notification and clearance (judgment of 26 October 2017, Marine Harvest v Commission, T‑704/14, EU:T:2017:753, paragraph 246) and the wording of Article 14(2)(a) and (b) of that regulation that the Commission may, in the event of infringement of those provisions, impose fines. Neither of those provisions contains broad concepts or vague criteria (judgment of 26 October 2017, Marine Harvest v Commission, T‑704/14, EU:T:2017:753, paragraph 379).

388 Furthermore, first, the Commission had already had occasion, in its decision-making practice prior to the contested decision, to sanction an undertaking for having implemented a concentration before it had been notified and declared compatible (see Decision C(2009) 4416 final of 10 June 2009 imposing a fine for implementing a concentration in breach of Article 7(1) of Regulation No 4064/89 and Article 57 of the EEA Agreement (Case COMP/M.4994 – Electrabel/Compagnie Nationale du Rhône) and Commission Decision C(2014) 5089 final of 23 July 2014 imposing a fine for putting into effect a concentration in breach of Article 4(1) and Article 7(1) of Regulation No 139/2004 (Case COMP/M.7184 – Marine Harvest/Morpol)).

389 Secondly, the General Court had already had occasion, prior to the interim transaction, to note that a concentration should not be implemented before it had been authorised by the Commission. The Court had already indicated, admittedly at first sight, that it was legitimate for the Commission, given the time limit within which it had to examine a notified concentration and the combination of factors likely to lead to control in a given case, to require the parties not to take any measure likely to bring about a change in control (order of 18 March 2008, Aer Lingus Group v Commission, T‑411/07 R, EU:T:2008:80, paragraph 94).

390 Consequently, the applicant could not have been unaware of its obligations under that regulation or of the possible penalties to which it was exposed in the event of failure to comply with those obligations.

391 In any event, it should be recalled that, if the applicant had any doubts as to the compatibility of the transaction at issue with Articles 4(1) and 7(1) of Regulation No 139/2004, it was incumbent on it to consult the Commission (see paragraph 378 above).

392 As regards the alleged infringement of the principle of the protection of legitimate expectations, it should be noted that that principle, which constitutes a fundamental principle of EU law, is the corollary of the principle of legal certainty, which requires that legal rules be clear and precise, and aims to ensure that situations and legal relationships governed by EU law remain foreseeable (judgment of 5 September 2014, Éditions Odile Jacob v Commission, T‑471/11, EU:T:2014:739, paragraph 90).

393 According to settled case-law, the right to rely on the principle of the protection of legitimate expectations extends to any person with regard to whom an institution of the European Union has given rise to justified hopes. Three conditions must be satisfied in order for a claim to entitlement to the protection of legitimate expectations to be well founded. First, precise, unconditional and consistent assurances originating from authorised and reliable sources must have been given to the person concerned by the EU authorities. Second, those assurances must be such as to give rise to a legitimate expectation on the part of the person to whom they are addressed. Third, the assurances given must comply with the applicable rules (see judgment of 5 September 2014, Éditions Odile Jacob v Commission, T‑471/11, EU:T:2014:739, paragraph 91 and the case-law cited).

394 In the present case, the Commission has not given the applicant any indication which could be interpreted as a possibility to partially implement the concentration.

395 Moreover, the Commission’s decision-making practice is subject to change, depending on changing circumstances or the evolution of its analysis (see judgment of 23 May 2019, KPN v Commission, T‑370/17, EU:T:2019:354, paragraph 80 and the case-law cited).

396 Accordingly, the Court has already indicated that the fact that, in previous decisions, the Commission has not held undertakings liable for equivalent conduct is not capable of creating a legitimate expectation that the Commission will refrain in future from pursuing and penalising such conduct where that reorientation of the Commission’s decision-making practice was based on a correct interpretation of the full implication of the relevant legal provisions (see, to that effect, judgment of 8 September 2010, Deltafina v Commission, T‑29/05, EU:T:2010:355, paragraph 428).

397 Moreover, as has already been noted (see paragraphs 88 to 96 above), contrary to what the applicant maintains, the judgment of 13 September 2010, Éditions Odile Jacob v Commission (T‑279/04, not published, EU:T:2010:384), was not capable of giving rise to legitimate expectations on its part.

398 The second part of the second plea in law must therefore be rejected.

3. The third part, concerning an alleged breach of the principle of proportionality and the principle governing concurrent offences

399 The applicant claims that, although, according to the case-law, the Commission is not obliged to penalise the infringements of EU competition law which it has found, since it exercises ‘its unlimited discretion’, it is bound by the general principles of EU law, which include the principle of proportionality and the principle governing concurrent offences. It follows that, if the Court were to find that the applicant has in fact committed an infringement of Articles 4(1) and 7(1) of Regulation No 139/2004, the Commission could only impose a fine for a single infringement, in accordance with those two principles. The underlying objective of ensuring ‘effective control’ of both the obligation to notify and the standstill obligation would be sufficiently and effectively preserved by the imposition of a single fine. The judgment of 4 March 2020, Marine Harvest v Commission (C‑10/18 P, EU:C:2020:149), does not lead to a different conclusion, as the factual elements in the case leading to that judgment differ significantly from those in the present case. Finally, the Commission did not explain in the contested decision why it did not take account of the first fine in setting the amount of the second fine.

400 The Commission contests the applicant’s arguments.

401 It should be noted that, according to the Court, while an infringement of Article 4(1) of Regulation No 139/2004 automatically entails an infringement of Article 7(1) of that regulation, the reverse is not true (judgments of 4 March 2020, Marine Harvest v Commission, C‑10/18 P, EU:C:2020:149, paragraph 101, and of 26 October 2017, Marine Harvest v Commission, T‑704/14, EU:T:2017:753, paragraphs 294 and 295).

402 Thus, in the situation where an undertaking notifies a concentration before it is implemented, in accordance with Article 4(1) of Regulation No 139/2004, it remains possible that that undertaking will infringe Article 7(1) of that regulation if it implements that concentration before the Commission declares it compatible with the internal market (judgment of 4 March 2020, Marine Harvest v Commission, C‑10/18 P, EU:C:2020:149, paragraph 102).

403 It follows that Articles 4(1) and 7(1) of Regulation No 139/2004 pursue autonomous objectives in the context of the ‘one-stop shop’ system referred to in recital 8 of that regulation (judgment of 4 March 2020, Marine Harvest v Commission, C‑10/18 P, EU:C:2020:149, paragraph 103).

404 The fact that Article 4(1) and Article 7(1) of Regulation No 139/2004 pursue autonomous objectives thus constitutes an element of differentiation which justifies the imposition of two separate fines.

405 In that regard, the Court of Justice found, in the case which gave rise to the judgment of 4 March 2020, Marine Harvest v Commission (C‑10/18 P, EU:C:2020:149), that the General Court was entitled to hold that the Commission could impose two separate fines under, respectively, Article 4(1) and Article 7(1) of Regulation No 139/2004 (judgment of 4 March 2020, Marine Harvest v Commission, C‑10/18 P, EU:C:2020:149, paragraph 111).

406 Furthermore, first, as regards the principle of proportionality, it should be recalled that the General Court has already emphasised that the imposition of two penalties for the same conduct, by one and the same authority in one and the same decision, cannot be regarded, as such, as contrary to the principle of proportionality (judgment of 26 October 2017, Marine Harvest v Commission, T‑704/14, EU:T:2017:753, paragraph 343).

407 Secondly, as regards the principle governing concurrent offences, it should be noted that the Court of Justice has already rejected a similar argument. In its judgment of 4 March 2020, Marine Harvest v Commission (C‑10/18 P, EU:C:2020:149), it considered that the General Court was right to hold that, in the absence, in relation to Articles 4(1) and 7(1) of Regulation No 139/2004, of a provision which would be ‘primarily applicable’, the applicant’s argument in that case that the General Court disregarded the principle of concurrence of offences, as it follows from international law and the legal order of the Member States, cannot be accepted (judgment of 4 March 2020, Marine Harvest v Commission, C‑10/18 P, EU:C:2020:149, paragraphs 117 and 118).

408 Furthermore, if, as the applicant points out, the circumstances of that case were different, the applicant does not show how that difference could lead to a different conclusion.

409 Moreover, the Court of Justice did not refer to the circumstances of that case when considering the imposition of two separate fines in paragraphs 97 to 119 of the judgment of 4 March 2020, Marine Harvest v Commission (C‑10/18 P, EU:C:2020:149).

410 Finally, with regard to the applicant’s argument, set out in the reply, that the Commission did not explain in the contested decision why it did not take account of the first fine in order to establish the amount of the second, as the Commission points out, it must be noted that, although Article 84(1) of the Rules of Procedure permits the submission of new pleas in law provided that they are based on matters of law and fact which have come to light during the proceedings, that argument is not based on matters which have come to light during the proceedings (see, to that effect, judgment of 12 May 2021, Alba Aguilera and Others v EEAS, T‑119/17 RENV, EU:T:2021:254, paragraph 121).

411 In addition, even if that argument were to be an extension of, and closely related to, those put forward in the application, it must be found to be erroneous, since, in recital 183 of the contested decision, the Commission stated that, ‘for the purpose of ensuring proportionality [of the fines]’, its assessment of the fines related to both infringements simultaneously. It follows from the statement of that objective that the Commission took each fine into account in setting the other.

412 The applicant is therefore wrong to maintain that the alleged failure to take account of the amount of one of the fines in determining the amount of the other violates the principle of proportionality.

413 The third part of the second plea in law must therefore be rejected as regards an alleged breach of the principle of proportionality and the principle governing concurrent offences.

4. The fourth part, alleging an incorrect duration of the alleged infringement of Article 7(1) of Regulation No 139/2004

414 According to the applicant, the Commission erred in law by considering, in recital 204 et seq. of the contested decision, that the alleged lack of standstill in breach of Article 7(1) of Regulation No 139/2004 constituted a continuing infringement extending to the Commission’s clearance. It follows from the judgment of 31 May 2018, Ernst & Young (C‑633/16, EU:C:2018:371), that Article 7(1) of that regulation must be interpreted in the light of Article 3(1) thereof. The relevant factor is therefore the acquisition of the possibility of exercising decisive influence. Since the act of acquisition is instantaneous, the infringement should also be instantaneous. Furthermore, the Commission did not give reasons for its decision to impose fines of the same amount for the two infringements, although their durations are deemed to be distinct. Finally, the duration of the infringement of Article 7(1) of Regulation No 139/2004 was due, in part, to the duration of the Commission’s investigation.

415 The Commission contests the applicant’s arguments.

416 As regards the applicant’s argument that the infringement of Article 7(1) of Regulation No 139/2004 is instantaneous, it should be recalled that the infringement of Article 4(1) of Regulation No 139/2004 is an instantaneous infringement, whereas an infringement of Article 7(1) of that regulation is a continuous infringement which is triggered when the infringement of Article 4(1) of that regulation is committed (judgments of 4 March 2020, Marine Harvest v Commission, C‑10/18 P, EU:C:2020:149, paragraphs 113 and 115, and of 26 October 2017, Marine Harvest v Commission, T‑704/14, EU:T:2017:753, paragraph 352).

417 As regards the applicant’s argument that the Commission did not give reasons for its decision to impose fines of the same amount for two infringements of different durations, it should be noted that, logically, a comparison cannot be made between the duration of a continuous infringement and an instantaneous infringement, since the latter has no duration. The Commission was therefore not required to give reasons for that aspect of that decision.

418 As regards the applicant’s argument that the duration of the infringement of Article 7(1) of Regulation No 139/2004 resulted, in part, to the duration of the Commission’s investigation, since the Commission did not require a detailed Form CO until 22 July 2016, that is to say, almost three months after the first draft of the simplified Form CO, it suffices to point out that it is for the notifying party to submit a correct and complete filing form. Therefore, the applicant cannot blame the Commission for extending the duration of the investigation on account of such a circumstance.

419 The fourth part of the second plea in law must therefore be rejected.

5. The fifth part, alleging that the fines were excessive and disproportionate

(a) The first subsection, according to which only the absence of a fine, or a symbolic fine, would have been justified

420 According to the applicant, the total fine of EUR 28 million is disproportionate and excessive. Only the absence of a fine, or a symbolic fine, would have been justified in the present case, in which the Commission adopts an innovative theory of ‘partial implementation’ in the absence of any acquisition of control. The applicant also argues that the Commission’s previous practice was to waive fines or impose only symbolic amounts where, as in the present case, the law was unclear or reapplied, and that it has already accepted parking transactions in the past. Finally, the competition authorities of Japan, China and the United States of America would have refrained from fining the applicant or would have imposed a very small fine.

421 The Commission contests the applicant’s arguments.

422 It should first be noted that, although the judgment of 31 May 2018, Ernst & Young (C‑633/16, EU:C:2018:371), according to which the partial implementation of a concentration may lead to the infringement of Articles 4(1) and 7(1) of Regulation No 139/2004 without the acquisition of control, was delivered at a date subsequent to the interim transaction, on that date, namely 17 March 2016, the Court had already indicated, as noted in paragraph 114 above, that a concentration, within the meaning of Article 3(1) of Regulation No 139/2004, may be deemed to arise even in the case of a number of formally distinct legal transactions, provided that those transactions are interdependent in such a way that none of them would be carried out without the others and that the result consists in conferring on one or more undertakings direct or indirect economic control over the activities of one or more other undertakings (judgment of 23 February 2006, Cementbouw Handel & Industrie v Commission, T‑282/02, EU:T:2006:64, paragraph 109).

423 It should then be noted that, according to settled case-law, the Commission’s practice in previous decision-making does not itself serve as a legal framework for the fines imposed in competition matters and that decisions in other cases can give only an indication for the purpose of determining whether the principle of equal treatment might not have been observed since the facts of those cases, such as markets, products, the undertakings and periods concerned, are not likely to be the same (judgments of 21 September 2006, JCB Service v Commission, C‑167/04 P, EU:C:2006:594, paragraphs 201 and 205; of 7 June 2007, Britannia Alloys & Chemicals v Commission, C‑76/06 P, EU:C:2007:326, paragraph 60; and of 16 June 2011, Caffaro v Commission, T‑192/06, EU:T:2011:278, paragraph 46).

424 Nevertheless, compliance with the principle of equal treatment, which precludes comparable situations from being treated differently and different situations from being treated similarly, unless such treatment is objectively justified, is binding on the Commission when fining an undertaking for infringement of the competition rules as it is on any institution in all its activities. However, previous Commission decisions on fines can only be relevant to compliance with the principle of equal treatment if it is shown that the circumstantial data of the cases relating to those other decisions, such as the markets, products, countries, undertakings and time periods concerned, are comparable to those in the present case (see judgment of 29 June 2012, E.ON Ruhrgas and E.ON v Commission, T‑360/09, EU:T:2012:332, paragraphs 261 and 262 and the case-law cited).

425 In the present case, it must be noted that the applicant has not adduced any evidence to show that the circumstances of cases previously dealt with by the Commission and those of the present case are comparable, nor does it even support such a hypothesis.

426 Furthermore, and in any event, there is no obligation on the Commission to take into account the fact that conduct having exactly the same characteristics as that at issue has not yet given rise to the imposition of a fine (see, to that effect, judgment of 26 October 2017, Marine Harvest v Commission, T‑704/14, EU:T:2017:753, paragraph 640).

427 Finally, as regards the applicant’s argument that the competition authorities of Japan, China and the United States of America refrained from imposing a fine on it or imposed a very low fine on it, it is sufficient to point out that such an argument fails to take account of the sui generis nature of the European Union’s legal order (see, to that effect, judgment of 15 July 1964, Costa, 6/64, EU:C:1964:66, and of 13 November 1964, Commission v Luxembourg and Belgium, 90/63 and 91/63, EU:C:1964:80). Thus, the EU merger control system does not necessarily coincide with the rules and practices of third countries.

428 The first subsection of the fifth part of the second plea in law must therefore be rejected.

(b) The second subsection, according to which mitigating circumstances were not properly taken into account

429 The applicant claims that the Commission disregarded, in the contested decision, the mitigating circumstances which it invoked during the administrative procedure. Firstly, the options which it held, enabling it to acquire TMSC, could only have been exercised after the merger had been authorised by all the competent authorities. Secondly, while the Commission notes in recital 202 of the contested decision that the transaction did not give rise to competition concerns, it does not indicate how that finding affected the amount of the fines. By way of comparison, the applicant points out that the total fine imposed in the case giving rise to the judgment of 4 March 2020, Marine Harvest v Commission (C‑10/18 P, EU:C:2020:149) was EUR 8 million lower, despite the fact that Marine Harvest was a repeat offender, that the concentration raised serious doubts and that the clearance required remedies. Thirdly, the applicant informed the Commission without delay. The applicant explains that, in the case which gave rise to the judgment of 4 March 2020, Marine Harvest v Commission (C‑10/18 P, EU:C:2020:149), the Commission took into account, as a mitigating circumstance, the fact that a case team allocation request was made a few days after the implementation of the concentration and that it itself made such a request before the interim transaction. Fourthly, the applicant always cooperated fully with the Commission. Finally, the applicant had no ‘history’ of non-compliance with Regulation No 139/2004 or any other antitrust regulations, which is generally taken into account.

430 The Commission contests the applicant’s arguments.

431 Firstly, as regards the applicant’s argument that the options it held could be exercised only after the concentration had been cleared by all the competent authorities, that circumstance cannot call into question the finding that, as follows from the foregoing, by carrying out the interim transaction, the applicant partially implemented the single concentration consisting in the acquisition of control of TMSC, in breach of Article 4(1) and Article 7(1) of Regulation No 139/2004. The time at which the applicant’s share options were actually exercised has no bearing on the partial implementation of the concentration.

432 Secondly, as regards the applicant’s argument that, while the Commission acknowledged in the contested decision that the transaction did not raise competition concerns, it did not indicate how that finding affected the amount of the fines, as the applicant itself points out, the Commission indicated, in recital 202 of the contested decision, that, for the purposes of calculating the fines, it had taken into account the fact that the transaction did not give rise to competition concerns and was declared compatible with the internal market and with the EEA Agreement by a decision adopted by the Commission on the basis of Article 6(1)(b) of Regulation No 139/2004 and Article 57 of the EEA Agreement.

433 That recital is part of point 5.2 of the contested decision, concerning the seriousness of the infringements.

434 The applicant does not show that the Commission, which had already taken account of that circumstance in relation to the seriousness of the infringement, should also have taken account of it in relation to mitigating circumstances.

435 Furthermore, if the applicant’s argument is to be understood as criticising the Commission for a failure to state reasons, in that the Commission did not explain in the contested decision how it took that factor into account, it should be noted that the Commission did not adopt guidelines setting out the method of calculation which it would be required to follow in setting fines under Article 14 of Regulation No 139/2004 (see judgment of 26 October 2017, Marine Harvest v Commission, T‑704/14, EU:T:2017:753, paragraph 449 and the case-law cited). In the absence of such guidelines, the Commission is not obliged to quantify, in absolute terms or as a percentage, the basic amount of the fine and any aggravating or mitigating circumstances (see judgment of 26 October 2017, Marine Harvest v Commission, T‑704/14, EU:T:2017:753, paragraph 455 and the case-law cited).

436 Thirdly, as regards the applicant’s argument that it should have benefited from a mitigating circumstance on the same basis as that recognised by the Commission in the case which gave rise to the judgment of 4 March 2020, Marine Harvest v Commission (C‑10/18 P, EU:C:2020:149), because it informed the Commission without delay, it follows from the chronology of events that that is not the case.

437 It is irrelevant, as the Commission points out, that the applicant submitted its team allocation request only a few days before the date of the interim transaction.

438 It is common ground between the parties that, although the applicant sent the Commission a team allocation request with regard to its plan to acquire sole control of TMSC as early as 11 March 2016 (see paragraph 19 above), that is to say, five days before the date of the interim transaction of 16 March 2016, that request made no mention of the interim transaction, but merely indicated the fact that ‘the proposed transaction consist[ed] of the acquisition by [the applicant] of sole control of [TMSC] by way of a transfer of 100% of the shares’.

439 It was in fact only through a complaint filed on 18 March 2016 that the Commission became aware of the structure of the two-step transaction (see paragraph 24 above), and it was only in its email of 5 April 2016 that the applicant sent the Commission the Form CO relating to the structure of the proposed transaction together with a brief presentation describing its various steps (see paragraph 20 above).

440 Fourthly, as regards the applicant’s argument that it always cooperated fully with the Commission, even though, according to its explanations, it had regular contacts with the team handling the case, replied to detailed requests for information and provided thousands of internal documents, such conduct cannot, in itself, constitute a mitigating circumstance. It is normal, if only to ensure its rights of defence, that the applicant responded to the Commission’s requests for information and submitted documents and replies to the statement of objections and the supplementary statement of objections.

441 Finally, as regards the applicant’s argument that it has no ‘history’ of non-compliance with Regulation No 139/2004 or any other antitrust regulation, which is generally taken into account, it should be pointed out that the applicant has not produced any example in which the Commission has accepted such a circumstance as a mitigating circumstance.

442 The second subsection of the fifth part of the second plea in law must therefore be rejected.

6. The plea of illegality, raised in the alternative, in relation to Article 14(2)(a) and (b) of Regulation No 139/2004

443 In the context of the third part of the second plea in law, the applicant, in the further alternative, requests the Court, on the basis of Article 277 TFEU, to declare Article 14(2)(a) and (b) of Regulation No 139/2004 inapplicable. In that regard, the applicant points out that the Court of Justice, in its judgment of 4 March 2020, Marine Harvest v Commission (C‑10/18 P, EU:C:2020:149, paragraph 110), expressly acknowledged that it had not examined or determined whether Article 14(2)(a) of Regulation No 139/2004 complied with EU law, since the plea of illegality raised before it had not been raised before the General Court. In that respect, the applicant refers to the ‘same arguments raised above’.

444 The Commission and the Council contest the applicant’s arguments.

445 It should be noted at the outset that the applicant does not specify which arguments it refers to in the context of its application.

446 In any event, assuming that the applicant refers to the three parts of the second plea in law which it raised before invoking the plea of illegality in question, it must be considered that, according to the applicant, that provision infringes, firstly, the principle of nullum crimen, nulla poena sine lege, secondly, the principle of the protection of legitimate expectations and, thirdly, the principle of proportionality and that governing concurrent offences.

447 Thus, firstly, the reference made by the applicant seeks to maintain that Article 14(2)(a) and (b) of Regulation No 139/2004 infringes the principle of nullum crimen, nulla poena sine lege by reason of the fact that Article 7(1) of Regulation No 139/2004 is not sufficiently clear, as the Commission itself acknowledges in the contested decision, since it states in recital 82 of that decision that ‘the notion of “implementation” is not explicitly defined in Articles 4(1) and 7(1) of [Regulation No 139/2004] [; a]s the Court put it in [the judgment of 31 May 2018, Ernst & Young (C‑633/16, EU:C:2018:371)], Article 7(1) [of Regulation No 139/2004] “provides no indication as to the circumstances in which a concentration is deemed to be implemented” and the wording of the provision “does not, in itself, clarify the scope of the prohibition which it lays down” [; t]he same is true for Article 4(1) [of that regulation]’.

448 In that regard, as recalled in paragraph 390 et seq. above, the principle of legality of offences and penalties (nullum crimen, nulla poena sine lege) allows, in principle, for the gradual clarification of the rules of liability by judicial interpretation.

449 The applicant does not put forward any argument capable of showing that such a gradual clarification cannot be permitted with regard to Article 4(1), Article 7(1) and Article 14(2)(a) and (b) of Regulation No 139/2004.

450 Secondly, the applicant’s reference seeks to argue that Article 14(2)(a) and (b) of that regulation infringes the principle of the protection of legitimate expectations, since it does not follow from that regulation that a partial implementation could, in the absence of any acquisition of control, fall within the scope of Article 4(1) and Article 7(1) of that regulation.

451 In that regard, it should be recalled that, before the Court of Justice explicitly stated that any partial implementation of a concentration falls within the scope of Article 7(1) of Regulation No 139/2004 (judgment of 31 May 2018, Ernst & Young, C‑633/16, EU:C:2018:371, paragraph 47), as already noted in paragraph 74 above, the General Court had also already had occasion to state, prior to the transaction at issue, that, in the context of the derogation from the standstill obligation under Article 7(2) of Regulation No 139/2004, the acquisition of a shareholding which does not, as such, confer control within the meaning of Article 3 of that regulation may fall within the scope of Article 7 of that regulation (judgment of 6 July 2010, Aer Lingus Group v Commission, T‑411/07, EU:T:2010:281, paragraph 83).

452 Thirdly, the applicant’s reference seeks to argue that Article 14(2)(a) and (b) of Regulation No 139/2004, by imposing a fine in the event of failure to notify in accordance with Article 4(1) of that regulation and in the event of implementation of a concentration in breach of Article 7(1) of that regulation, respectively, infringes the principle of proportionality and the principle of concurrency. It is common ground that cases involving the implementation of a non-notified transaction always and automatically violate Article 4(1) and Article 7(1) of Regulation No 139/2004, since it would be impossible to violate the first of those provisions without violating the second. In those circumstances, Article 14 of Regulation No 139/2004 should allow the Commission to choose between those provisions, rather than applying them simultaneously, as it would not be necessary to protect the same objectives twice. By definition, a double fine would therefore be excessive. Moreover, allowing the Commission to impose two separate fines for the same conduct could lead to absurd and disproportionate results. According to the applicant, by imposing two separate fines of up to 10% of total turnover for the same conduct, Article 14(1) and Article 14(2)(a) and (b) of Regulation No 139/2004 double the cap provided for in Regulation No 1/2003. Therefore, a non-problematic transaction which does not seriously impair effective competition within the European Union would incur a fine with a cap twice as high as the 10% cap for a hardcore cartel or egregious abuse of a dominant position.

453 In that regard, as regards the principle of proportionality, as noted in paragraph 410 above, Articles 4(1) and 7(1) of Regulation No 139/2004 pursue autonomous objectives in the context of the ‘one-stop shop’ system referred to in recital 8 of that regulation.

454 Furthermore, first, Article 4(1) of that regulation provides for an obligation to act, consisting in the obligation to notify the concentration before it is implemented, and, secondly, Article 7(1) of that regulation provides for an obligation not to act, namely, not to implement that concentration prior to its notification and clearance (judgments of 4 March 2020, Marine Harvest v Commission, C‑10/18 P, EU:C:2020:149, paragraph 104, and of 26 October 2017, Marine Harvest v Commission, T‑704/14, EU:T:2017:753, paragraph 302).

455 Moreover, depriving the Commission of the possibility to distinguish, through the fines it imposes, between situations where the undertaking complies with the obligation to notify but violates the standstill obligation, and situations where the undertaking violates both obligations, would not achieve the objective of Regulation No 139/2004, which is to ensure effective control of concentrations with a Community dimension, in so far as the infringement of the obligation to notify could never be the subject of a specific penalty (judgment of 4 March 2020, Marine Harvest v Commission, C‑10/18 P, EU:C:2020:149, paragraphs 108 and 109).

456 In addition, as has already been pointed out (see paragraph 423 above), an infringement of Article 4(1) of Regulation No 139/2004 is an instantaneous infringement, whereas an infringement of Article 7(1) of that regulation is a continuous infringement, which is triggered at the same time as the infringement of Article 4(1) of that regulation is committed (judgments of 4 March 2020, Marine Harvest v Commission, C‑10/18 P, EU:C:2020:149, paragraphs 113 and 115, and of 26 October 2017, Marine Harvest v Commission, T‑704/14, EU:T:2017:753, paragraph 352).

457 Finally, it has also already been noted (see paragraph 413 above) that the imposition of two penalties for the same conduct by the same authority in one and the same decision cannot be regarded, as such, as contrary to the principle of proportionality (judgment of 26 October 2017, Marine Harvest v Commission, T‑704/14, EU:T:2017:753, paragraph 343).

458 The applicant does not put forward any arguments capable of calling that case-law into question.

459 As for the applicant’s argument that Article 14(1) and Article 14(2)(a) and (b) of Regulation No 139/2004 double the cap laid down in Regulation No 1/2003 by imposing two separate fines of up to 10% of total turnover for the same conduct, it is inoperative.

460 It is clear that, even if it were to be concluded that the fact that the Commission may impose fines of 10% of the turnover of the undertaking concerned cumulatively under Article 14(2)(a) of Regulation No 139/2004 and Article 14(2)(b) of that regulation is contrary to the principle of proportionality, that conclusion has no consequence in the present case, since the applicant does not claim that it was ordered to pay two fines, which, cumulatively, exceed 10% of its turnover.

461 As regards the principle governing concurrent offences, to which the applicant only refers, it should be noted that the rules on concurrent offences do not in general terms preclude an undertaking from being penalised for an infringement of several distinct legal provisions, even if those provisions have been infringed by virtue of the same conduct (judgment of 26 October 2017, Marine Harvest v Commission, T‑704/14, EU:T:2017:753, paragraph 371).

462 It follows from the foregoing that, even if it is correct, as the applicant points out, that the Court, in its judgment of 4 March 2020, Marine Harvest v Commission (C‑10/18 P, EU:C:2020:149, paragraphs 110 and 127), neither examined nor determined whether Article 14(2)(a) of Regulation No 139/2004 complies with EU law, since the plea of illegality raised before it had not been raised before the General Court, the applicant has not adduced any evidence capable of demonstrating the illegality of Article 14(2)(a) and (b) of that regulation.

463 The plea of illegality raised in relation to Article 14(2)(a) and (b) of Regulation No 139/2004 must therefore be rejected, as does, therefore, the second plea in law in its entirety.

464 It follows from all the foregoing that it is necessary to reject the applicant’s application to the General Court ‘to annul the contested decision regarding the fines, and/or to exercise its unlimited discretion to entirely cancel or substantially reduce the amount of fines’.

C. The third plea in law, alleging infringement of Article 18 of Regulation No 139/2004 and Article 48(2) of the Charter

465 The applicant claims that the Commission infringed its procedural rights in the contested decision by introducing new arguments and new factual elements and evidence after the submission of the supplementary statement of objections of 30 November 2018 and the second hearing on 14 February 2019. Firstly, for the first time, in recitals 133 to 137 of the contested decision, the Commission argued that its veto rights exceeded the usual level of protection provided for in Article 322(1) of the Japanese Law on Companies and that Article 16.3(3)2 of TMSC’s amended articles of association contained veto rights in addition to the matters set forth in that provision. Those considerations, referring directly to Japanese company law, constitute new factual elements, of which it should at least have been informed. Secondly, in its supplementary statement of objections, the Commission examined the veto right at issue in terms of whether, as part of the interim transaction, it ‘contributed to a lasting change of control over TMSC’, whereas in the contested decision the Commission relied on the applicant’s veto right in support of an entirely different argument, namely that of the existence of a single concentration. The Commission should therefore have clarified its new argument relating to the single concentration in a supplementary statement of objections setting out the Japanese company law on which it relies and granted it the right to a further hearing.

466 The Commission contests the applicant’s arguments.

467 According to settled case-law, respect for the rights of the defence requires that the undertaking concerned be given the opportunity, in the course of the administrative procedure, to make its views known in a meaningful way on the truth and relevance of the facts and circumstances alleged and on the documents relied on by the Commission in support of its allegation of the existence of an infringement of the Treaty (see judgment of 10 November 2017, Icap and Others v Commission, T‑180/15, EU:T:2017:795, paragraph 83 and the case-law cited).

468 The statement of objections must clearly set out all the essential matters on which the Commission relies at that stage of the proceedings, to enable the parties concerned properly to identify the conduct complained of by the Commission and to put forward their defence effectively before the Commission adopts a final decision. That obligation is satisfied if the final decision does not allege that the persons concerned have committed infringements other than those referred to in the statement of objections and takes into consideration only facts on which the persons concerned have had the opportunity of stating their views (see, by analogy, judgment of 10 November 2017, Icap and Others v Commission, T‑180/15, EU:T:2017:795, paragraph 84 and the case-law cited).

469 However, that may be done summarily and the decision subsequently taken by the Commission is not necessarily required to be a replica of the statement of objections, since that statement is a preparatory document containing assessments of fact and of law which are purely provisional in nature. Thus, it is permissible for the Commission to supplement the statement of objections in the light of the response of the parties, whose arguments show that they have actually been able to exercise their rights of defence. The Commission may also, in the light of the administrative procedure, revise or supplement its arguments of fact or of law in support of its objections (see judgment of 10 November 2017, Icap and Others v Commission, T‑180/15, EU:T:2017:795, paragraph 85 and the case-law cited).

470 Thus, the communication to the parties concerned of a supplementary statement of objections is necessary only where the result of the investigations leads the Commission to take new facts into account against the undertakings or to alter materially the evidence for the contested infringements (see judgment of 10 November 2017, Icap and Others v Commission, T‑180/15, EU:T:2017:795, paragraph 86 and the case-law cited).

471 Finally, it should also be recalled that, according to the case-law, the rights of the defence are infringed where it is possible that the outcome of the administrative procedure conducted by the Commission might have been different as a result of an error committed by it. An applicant undertaking establishes that there has been such an infringement where it adequately demonstrates, not that the Commission’s decision would have been different in content, but rather that it would have been better able to ensure its defence had there been no error, for example because it would have been able to use for its defence documents to which it was denied access during the administrative procedure (see judgment of 10 November 2017, Icap and Others v Commission, T‑180/15, EU:T:2017:795, paragraph 87 and the case-law cited).

472 In the present case, as regards the applicant’s argument that it was for the first time in the contested decision that the Commission held that the veto right enjoyed by the applicant exceeded the usual level of protection provided for in Article 322(1) of the Japanese Law on Companies and that Article 16.3(3)2 of TMSC’s amended articles of association contained additional veto rights, it should be noted that, according to the case-law, a party which itself submitted the facts in question was by definition in a position to state their possible relevance to the resolution of the case at the time when it submitted them (see judgment of 12 December 2012, 1. garantovaná v Commission, T‑392/09, not published, EU:T:2012:674, paragraph 79 and the case-law cited).

473 Following the Commission’s invitation, by request for information of 7 October 2016, to provide information concerning Article 322(1) of the Japanese Law on Companies and Article 16.3(3)2 of TMSC’s amended articles of association, the applicant replied by its letter of 4 November 2016, in which it provided extracts translated into English from the Japanese Law on Companies and TMSC’s articles of association and references to that law and those articles.

474 Next, following a further invitation by the Commission, by request for information of 25 February 2019, to provide additional information on those two points, the applicant replied to that request in its letter of 13 March 2019. In that letter, it explained itself that the veto right it enjoyed exceeded the usual level of protection provided for in Article 322(1) of the Japanese Law on Companies (see paragraph 163 above) and that the veto right established by Article 16.3(3)2 of TMSC’s amended articles of association enabled it to prevent MS Holding from carrying out the compulsory acquisition of TMSC’s share options. The fact that the latter explanation was already contained in the applicant’s reply of 4 November 2016 is moreover referred to in footnote 30 of the statement of objections.

475 As regards the applicant’s argument that the Commission examined the veto right in the supplementary statement of objections from the point of view of whether, as part of the interim transaction, it ‘contributed to a lasting change of control over TMSC’, whereas in the contested decision the Commission invoked its veto right in support of an entirely different argument, namely concerning the existence of a single concentration, it should be noted that, in paragraph 48 of the supplementary statement of objections, the Commission had made the same finding as in recital 136 of the contested decision, according to which the veto right enabled the applicant to pre-empt one of the legal rights of the majority shareholder and thus ensured that it alone would determine the future owner of TMSC.

476 Furthermore, the Commission took into account in the supplementary statement of objections the whole structure of the transaction, including the veto right, in support of the conclusion that there was a single concentration.

477 In paragraph 43 of the supplementary statement of objections, the Commission stated that, ‘taking into account the overall deal structure that [the applicant] and Toshiba agreed on, [it] preliminarily consider[ed] that the interim transaction and the ultimate transaction were part of a single concentration, for the purpose of recital 20 of [Regulation No 139/2004] and in accordance with the judgment in Ernst & Young’.

478 Next, in paragraph 44 of the supplementary statement of objections, the Commission stated that, ‘for these reasons, the Commission preliminarily considers that the interim transaction was a necessary step to achieve a change of control in TMSC presenting a direct functional link with the implementation of the ultimate transaction[; t]hus, [it preliminarily considered] that the interim transaction contributed (at least in part) to the change in control of TMSC’.

479 Finally, in paragraph 45 et seq. of the supplementary statement of objections, the Commission set out, in particular, how the applicant had acquired the possibility of exercising a certain degree of influence over TMSC as a result of the interim transaction, in particular by means of the veto right (paragraph 48 of that statement).

480 The applicant also does not dispute the Commission’s assertion in its defence that the veto right was discussed at the hearing on 14 February 2019. Moreover, as has been pointed out (see paragraph 476 above), the applicant itself explained the importance of that veto right.

481 Furthermore, as the Commission points out, the objections raised in the contested decision were clearly set out in the statement of objections and the supplementary statement of objections.

482 Contrary to what the applicant maintains, the Commission did not introduce any arguments, facts or evidence in recitals 133 to 137 of the contested decision which had not already been presented to the applicant during the administrative procedure.

483 In recital 133 of the contested decision, the Commission found, as it had already done in paragraph 111 of the statement of objections, that, as from the interim transaction, the applicant bore the entire economic risk of the transaction and, as it had already stated in paragraph 47 of the supplementary statement of objections, that the applicant had been granted the right to determine the identity of the ultimate acquirer of TMSC.

484 In recital 134 of the contested decision, the Commission explained why, as it had already done in paragraph 47 of the supplementary statement of objections, following the interim transaction, the applicant alone had the power to determine the identity of the ultimate acquirer of TMSC.

485 In recital 135 of the contested decision, the Commission rejected the applicant’s argument that the ability to determine the ultimate acquirer of TMSC was not a relevant factor in establishing control or influence over TMSC.

486 In recital 136 of the contested decision, the Commission explained, as it had already done in paragraph 48 of the supplementary statement of objections, that the veto right enabled the applicant to prevent MS Holding from making use of Article 179(3) of the Japanese Law on Companies and thus ensured that only the applicant could determine the future owner of TMSC.

487 Finally, in recital 137 of the contested decision, the Commission refuted the applicant’s argument that the veto right was merely a means of protecting its position as holder of the Class B share, finding that the veto right had not only protected it as holder of the Class B share, in so far as it could use that veto right to protect its share options, which would enable it to determine the ultimate acquirer of TMSC. In support of that conclusion, that recital refers to the applicant’s reply of 13 March 2019 to the Commission’s request of 25 February 2019, according to which the veto right also protected it from ‘a “squeeze out” in its capacity as a share option holder’. In that recital, the Commission also refuted the applicant’s argument that the veto right did not confer any special or unique rights on it and did not exceed the level of protection provided by the Japanese Law on Companies, noting that Article 16.3(3)2 of TMSC’s amended articles of association contained veto rights going beyond the level of protection provided by the Japanese Law on Companies.

488 Contrary to what the applicant maintains, the Commission therefore did no more in recitals 133 to 137 of the contested decision than respond to the arguments put forward by the applicant, but without introducing any factual or evidential elements capable of justifying a new additional statement of objections or a new hearing for the applicant.

489 In that regard, the right to be heard cannot extend to the reasoning by which the Commission refutes the arguments put forward in response to the statement of objections and the supplementary statement of objections before adopting the contested decision (see, to that effect, judgments of 19 May 2010, IMI and Others v Commission, T‑18/05, EU:T:2010:202, paragraph 111, and of 29 March 2012, Telefónica and Telefónica de España v Commission, T‑336/07, EU:T:2012:172, paragraph 108).

490 The third plea in law must therefore be rejected.

491 It follows from the foregoing that the action as a whole must be dismissed.

Costs

492 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission.

493 In accordance with Article 138(1) of the Rules of Procedure, the institutions which have intervened in the proceedings are to bear their own costs. Consequently, the Council must be ordered to bear its own costs.

On those grounds,

THE GENERAL COURT (Sixth Chamber)

hereby:

1. Dismisses the action;

2. Orders Canon Inc. to bear its own costs as well as those incurred by the European Commission;

3. Orders the Council of the European Union to bear its own costs.

Marcoulli

Frimodt Nielsen

Norkus

Delivered in open court in Luxembourg on 18 May 2022.

E. Coulon

M. van der Woude

Registrar

President

Table of contents

I. Background to the dispute

A. Acquisition by the applicant of TMSC

B. Pre-notification phase

C. Notification and decision authorising the concentration

D. Administrative procedure and contested decision

II. Procedure and forms of order sought

III. Law

A. The first plea in law, alleging that the applicant did not infringe Articles 4(1) and 7(1) of Regulation No 139/2004

1. The first part, alleging that the interim transaction does not constitute an acquisition of control

(a) The first subsection, according to which the early implementation of a concentration requires the acquisition of control

(b) The second subsection, according to which the previous case-law confirms that the change of control is the only relevant criterion

2. The second plea in law, alleging lack of partial implementation in breach of Articles 4(1) and 7(1) of Regulation No 139/2004

(a) The first subsection, according to which the fact that the ‘interim transaction was only undertaken in view of the ultimate transaction’ is irrelevant and is not established by the Commission to the requisite legal standard

(b) The second subsection, according to which the sole purpose of MS Holding was not to ‘facilitate the acquisition by the applicant of control over TMSC’

(1) The fact that the development of the transaction was directed by Toshiba and the need to achieve a significant capital gain by the end of March 2016

(2) The complaint that the applicant did not actively participate in the establishment of MS Holding

(3) The complaint that the Commission’s description of MS Holding’s role is misleading

(4) The complaint that MS Holding was perfectly free to exercise its voting rights

(5) The complaint that TMSC acted independently of the applicant

(c) The third subsection, according to which the alleged power to determine the identity of the ultimate purchaser and the economic risks are irrelevant

(1) The argument that the ‘right to determine the ultimate or future owner’ does not constitute ‘influence’

(2) The argument that veto rights to combat dispersal did not confer relevant ‘influence’

(3) The argument that the ‘economic risk of the concentration’ allegedly assumed by the applicant does not constitute a relevant criterion

(d) The fourth subsection, according to which the conditions of ‘partial implementation’ within the meaning of the judgment of 31 May 2018, Ernst & Young (C633/16, EU:C:2018:371), are not fulfilled

(e) The fifth subsection, according to which the interim transaction did not ‘contribute to a lasting change of control’ over TMSC within the meaning of the judgment of 31 May 2018, Ernst & Young (C633/16, EU:C:2018:371)

(1) The direct functional link criterion within the meaning of the judgment of 31 May 2018, Ernst & Young (C633/16, EU:C:2018:371)

(2) The argument that the Commission misinterpreted the judgment of 31 May 2018, Ernst & Young (C633/16, EU:C:2018:371)

(3) The argument that the ‘temporary’ nature of the control exercised by MS Holding over TMSC is irrelevant

(4) The argument that the contested decision is wrongly based on the concept of ‘relinquishing’ of control

(5) The argument that the comparison between the Ernst & Young case and the present case is wrong

(i) The argument that the interim transaction was not a ‘tripartite operation’

(ii) The argument that, in the Ernst & Young case, the merger agreement already determined the future owner

(iii) The argument that the fact that TMSC was not independent before the interim transaction is irrelevant

3. The third part, alleging manifest errors in the application of the concept of ‘partial implementation of a “single concentration”’

(a) The argument that the concept of a ‘single concentration’ cannot be based on recital 20 of Regulation No 139/2004

(b) The argument that paragraph 35 of the CJN provides an insufficient basis for the Commission’s concepts of ‘single concentration’ and ‘partial implementation’

(1) The argument that the CJN is not a sufficient legal basis and is not legally binding

(2) The argument that the conditions of paragraph 35 of the CJN are not fulfilled

(3) The plea of illegality raised in the alternative with regard to paragraph 35 of the CJN

(c) The argument that the judgment of 23 February 2006, Cementbouw Handel & Industrie v Commission (T282/02, EU:T:2006:64), does not concern an early implementation of a concentration and is therefore irrelevant

4. The fourth part, according to which the ex ante merger control procedure has never been circumvented

(a) The argument that the parties never intended to circumvent the merger control system

(b) The necessary uniform application of EU law

B. The second plea in law, alleging infringement of Article 14 of Regulation No 139/2004

1. The first part, alleging lack of intent or negligence on the part of the applicant

2. The second part, alleging breach of the principles of nulla poena sine lege and of the protection of legitimate expectations

3. The third part, concerning an alleged breach of the principle of proportionality and the principle governing concurrent offences

4. The fourth part, alleging an incorrect duration of the alleged infringement of Article 7(1) of Regulation No 139/2004

5. The fifth part, alleging that the fines were excessive and disproportionate

(a) The first subsection, according to which only the absence of a fine, or a symbolic fine, would have been justified

(b) The second subsection, according to which mitigating circumstances were not properly taken into account

6. The plea of illegality, raised in the alternative, in relation to Article 14(2)(a) and (b) of Regulation No 139/2004

C. The third plea in law, alleging infringement of Article 18 of Regulation No 139/2004 and Article 48(2) of the Charter

Costs