The Sika AG case is the first case of gun jumping sanctioned by the Competition Council, thus constituting a strong signal to companies, underlined Saad El Mernissi, associate legal adviser at Cabinet Figes Mernissi.
“It is important to note that this is the first decision of this kind issued by the Competition Council and that it sends a strong signal to companies that carry out concentration operations without having notified the Competition Council and having obtained its authorization beforehand,” Mr. Mernissi said in a statement to MAP.
Companies party to a concentration notifiable to the Competition Council are subject to two obligations, namely to notify the operation to the Competition Council (article 12 of Law 104-12) and to suspend the completion of the operation until obtaining the authorization of the Competition Council (article 14 of Law 104-12), recalled the legal adviser.
And to explain that the absence of notification, just like the anticipated completion of the operation, are commonly grouped under the term gun jumping and are sanctioned by a fine which can go up to 5% of the turnover of the company. company responsible for the notification (article 19 of Law 104-12).
It should be recalled that the Competition Council, meeting on Thursday April 28 in plenary session, unanimously decided to impose on Sika AG a financial penalty of 11,670,215 dirhams, in accordance with Article 19 of Law 104-12, due to non-compliance with the obligation to notify the Board of the economic concentration operation relating to the acquisition by this company of exclusive control of Financière Dry Mix Solutions.
Sika AG has accepted the payment of this pecuniary sanction which will be transferred to the state budget.
By its decision n°134/D/2021 of December 06, 2021, the Competition Council took action on its own initiative and opened an investigation concerning the carrying out by the company “SIKA AG” in 2019 of a concentration operation without prior notification to the Competition Council and agreement of the latter, in violation of Articles 12 and 14 of Law 104-12.
This operation concerns the acquisition by the company “SIKA AG” of 100% of the capital and voting rights of the company “Financière Dry Mix Solutions SAS”, reminds the Board, specifying that the companies are active on the manufacturing market and the marketing of construction chemicals and mortars through their subsidiaries Sika Maroc SA and Sodap SA.
Sika AG is a joint-stock company under Swiss law, a world leader in the manufacture and marketing of construction chemicals, and has subsidiaries in 101 countries. As for Financière Dry Mix Solutions SAS, it is a simplified joint-stock company under French law. It is the parent company of the Parex group which is mainly active in the production and marketing of mortar products used in the construction industry.
Source: MAP