Keywords
Summary

Keywords

1. Competition — Concentrations — Examination by the Commission — Commission ' s obligations vis-à-vis qualifying third parties — Obligation to define its position on a complaint — (Council Regulation No 4064/89)

2. Actions for failure to act — Institution must be called upon to act — Action to be taken within a reasonable time — Cases relating to concentrations between undertakings — (Art. 232, second para., EC; Council Regulation No 4064/89, Arts 4, 6 and 10(1), (3) and (6))

Summary

1. The Commission cannot refrain from taking account of complaints from undertakings which are not party to a concentration capable of having a Community dimension. Indeed, the implementation of such a transaction for the benefit of undertakings in competition with the complainants is likely to bring about an immediate change in the complainants ' situation on the market or markets concerned.

Furthermore, the Commission cannot validly maintain that it is not required to take a decision on the very principle of its competence as supervising authority, when it is solely responsible, under Article 21 of Regulation No 4064/89 on the control of concentrations between undertakings, for taking, subject to review by the Court of Justice, the decisions provided for by that regulation. If the Commission refused to adjudicate formally, at the request of third-party undertakings, on the question whether or not a concentration which has not been notified to it falls within the scope of the regulation, it would make it impossible for such undertakings to take advantage of the procedural guarantees which the Community legislation accords them. The Commission would, at the same time, deprive itself of a means of checking that undertakings which are parties to a concentration with a Community dimension comply properly with their obligation to notify. Moreover, the complainant undertakings could not challenge, by means of an action for annulment, a refusal by the Commission to act which is likely to do them harm.

Finally, nothing justifies the Commission in avoiding its obligation to undertake, in the interests of sound administration, a thorough and impartial examination of the complaints which are made to it. The fact that the complainants do not have the right, under Regulation No 4064/89, to have their complaints investigated under conditions comparable to those for complaints within the scope of Regulation No 17 does not mean that the Commission is not required to consider whether the matter is within its competence and to draw the necessary conclusions. It does not release the Commission from its obligation to give a reasoned response to a complaint that it has specifically failed to exercise its competence.

see paras 27-30

2. The requirements of legal certainty and of continuity of Community action which are at the origin both of the fifth paragraph of Article 230 EC and of Articles 4, 6 and 10(1), (3) and (6) of Regulation No 4064/89 on the control of concentrations between undertakings would be disregarded if the Commission could, pursuant to the second paragraph of Article 232 EC, be requested to make a determination, outside a reasonable period, on the compatibility with the common market of a concentration which was not notified to it. Undertakings could thus lead the Commission to call in question a decision taken by the competent national authorities with regard to a concentration, even after the exhaustion of the possible legal remedies against such decision in the legal system of the Member State concerned.

A period of four months from the date when the competent national authority took its decision relating to the transaction cannot be regarded as reasonable.

see paras 36-38