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Violation of standstill obligation: AFCA files application with Cartel Court to impose a fine of EUR 120,000 on Vivendi SE

On 14 September 2023, the Austrian Federal Competition Authority (AFCA) applied to the Cartel Court to have a fine of EUR 120,000 imposed on Vivendi SE (hereinafter referred to as “Vivendi”) for implementing a notifiable transaction prior to the receipt of the Austrian merger clearance. The opposing party had failed to comply with its statutory obligation to notify the AFCA of a transaction that was subject to a notification requirement under Austrian merger control rules and subsequently breached the standstill obligation.

The transaction in question is Vivendi’s step-by-step acquisition of incremental shareholdings in the target company Lagardère SA, as a result of which Vivendi increased its stake to slightly more than 25% although without obtaining (sole or joint) control over Lagardère SA. The transaction in question was carried out on 30 September 2020 without notification. Vivendi retroactively notified the AFCA of the transaction on 14 July 2021 (Z-5899). The standstill obligation ceased to apply with effect of 12 August 2021 as the AFCA and the Federal Cartel Prosecutor had not requested an in-depth review of the transaction by the Cartel Court. The infringement therefore lasted for 10 months.

Vivendi has cooperated with the AFCA and fully acknowledged the infringement by accepting the facts of the case as determined by the AFCA as well as the amount of the fine and by not disputing the AFCA’s legal assessment of the case. A mitigating factor when setting the amount of the fine was the company’s admission out of its own initiative of having carried out the transaction prior to notification. Other mitigating circumstances were the company’s past compliance with notification requirements, as well as its implementation of mechanisms designed to prevent any flow of information from Vivendi to the target company, with a view to preventing competition law violations from the outset.

The notified transaction does not lead to any competition concerns and was therefore cleared with the expiry of the standstill obligation.

Violations of the standstill obligation pursuant to the Federal Cartel Act

Certain transactions must be notified in accordance with the Federal Cartel Act (KartG). Notification requirements apply when one of the types of concentrations (e.g. acquisition of shares or acquisition of assets) as defined in the KartG occurs and the statutory turnover thresholds are exceeded by the companies involved in the transaction. Dispositions in relation to a notified intended transaction must not be implemented prior to the AFCA and the Federal Cartel Prosecutor having decided not to oppose the transaction. The standstill obligation is therefore deemed to have been breached if the transaction is implemented without notifying the AFCA or if the AFCA has not yet reached its decision not to oppose the transaction.