Joined Cases C‑553/10 P and C‑554/10 P

European Commission and Lagardère SCA

v

Éditions Odile Jacob SAS

‛Appeals — Merger of undertakings in the book publishing market — Annulment of the decision to approve an investment company as the purchaser of the assets sold — Significance of a trustee’s possible lack of independence’

Summary — Judgment of the Court (Grand Chamber), 6 November 2012

Competition — Concentrations — Commitments by the undertakings concerned to render the notified transaction compatible with the common market — Purchaser’s commitment that sale of assets be monitored by an independent trustee — Review of trustee’s independence by the Courts of the European Union — Scope

(Council Regulation No 4064/89, Art. 8(2); Commission Notice 2001/C 68/03)

Where the Commission declares a merger compatible with the common market subject to the purchaser complying with certain commitments, one being the obligation to sell the assets and to appoint a trustee to be responsible for that sale taking place, that trustee must, first, be independent of the parties and, in addition, act independently of them, with the result that a lack of independence is sufficient ground for the annulment of a Commission decision. The question of whether that trustee did act independently arises only if it has first been established that the trustee was in fact independent of the parties. Where the Courts of the European Union correctly found that a trustee was not independent of the parties, they were under no obligation to examine whether that trustee actually acted in a way which was evidence of that lack of independence.

(see para. 51, 52)

Joined Cases C‑553/10 P and C‑554/10 P

European Commission and Lagardère SCA

v

Éditions Odile Jacob SAS

‛Appeals — Merger of undertakings in the book publishing market — Annulment of the decision to approve an investment company as the purchaser of the assets sold — Significance of a trustee’s possible lack of independence’

Summary — Judgment of the Court (Grand Chamber), 6 November 2012

Competition — Concentrations — Commitments by the undertakings concerned to render the notified transaction compatible with the common market — Purchaser’s commitment that sale of assets be monitored by an independent trustee — Review of trustee’s independence by the Courts of the European Union — Scope

(Council Regulation No 4064/89, Art. 8(2); Commission Notice 2001/C 68/03)

Where the Commission declares a merger compatible with the common market subject to the purchaser complying with certain commitments, one being the obligation to sell the assets and to appoint a trustee to be responsible for that sale taking place, that trustee must, first, be independent of the parties and, in addition, act independently of them, with the result that a lack of independence is sufficient ground for the annulment of a Commission decision. The question of whether that trustee did act independently arises only if it has first been established that the trustee was in fact independent of the parties. Where the Courts of the European Union correctly found that a trustee was not independent of the parties, they were under no obligation to examine whether that trustee actually acted in a way which was evidence of that lack of independence.

(see para. 51, 52)