AdC accuses HCapital, SCA - SICAR of gun-jumping

Press release 20/2019

 AdC accuses HCapital, SCA - SICAR of gun-jumping

The AdC (Autoridade da Concorrência – Portuguese Competition Authority) sent a statement of objections to HCapital, SCA – SICAR for acquiring sole control of Solzaima without prior notification of the transaction and, consequently, without obtaining approval from the antitrust entity.
The merger in question consisted in the acquisition of the sole control of Solzaima by HCapital, SCA - SICAR on 5 August 2016 and was notified to AdC only after its completion on 1 February 2019, well after its implementation. The transaction in question was subject to a decision of non-opposition by the AdC of 8 March 2019.
Nevertheless, conducting a concentration without prior notification and decision by the AdC (gun-jumping) is a serious infringement, punishable with a fine of up to 10% of the turnover of the offending company in the year preceding the final conviction handed down by the AdC.
Mergers are subject to prior notification to the AdC when they fulfil one of the following conditions:

  • If, as a result of the operation, a market share of more than 50% is created or strengthened.
  • If the turnover of at least two of the participating companies exceeds €5 million and as a result of the operation results in a market share of 30% or more in a market; or yet
  • If all the companies participating in the operation have had a total turnover in Portugal of more than €100 million, provided that at least two of the companies involved individually have a turnover of more than 5 million euros.

These transactions must be notified to the AdC upon the conclusion of the agreement between the companies or after the disclosure of the preliminary announcement of the takeover bid, but even before they are completed.

If companies are in doubt as to whether an operation they are planning meets the requirements for notification, they may resort to the prior assessment of the AdC, a confidential procedure with no associated costs.

Failure to notify a merger operation limits the early intervention power of the AdC to ensure that barriers to competition are not created or strengthened, with effects that are potentially harmful and sometimes difficult to eliminate, in particular the creation of monopolies.

For this reason, the prior notification obligation is a fundamental pillar of the whole merger control system and its breach is considered a serious infringement.

The AdC points out that the issuing of a statement of objections does not determine the final outcome of the investigation. At this stage of the proceedings, the undertaking concerned is given the opportunity to exercise its right to be heard and defended in relation to the alleged offense and the penalties it may incur.

The Statement of Objections was adopted on September 17, 2019.

 Lisbon, 26 September