Keywords
Summary

Keywords

1 Actions for annulment - Interest in bringing proceedings - Commission decision declaring a concentration incompatible with the common market - Where the contractual basis of the concentration has disappeared - Interest in bringing proceedings not affected

(EC Treaty, Art. 173, fourth para. (now, after amendment, Art. 230, fourth para., EC))

2 Actions for annulment - Interest in bringing proceedings - Where the applicant has complied with the contested decision - Interest in bringing proceedings not affected

(EC Treaty, Art. 173, fourth para. (now, after amendment, Art. 230, fourth para., EC))

3 Competition - Concentrations between undertakings - Concentration with no Community dimension - Investigation by the Commission at the request of a Member State - Request under Article 22(3) of Regulation No 4064/89 - Meaning - Whether it is for the Commission to determine how powers and responsibilities are divided between national authorities - Not possible

(Council Regulation No 4064/89, Art. 22(3))

4 Actions for annulment - Jurisdiction of the Community judicature - Whether it may rule on the lawfulness of a measure adopted by a national authority - Not possible

(EC Treaty, Art. 173 (now, after amendment, Art. 230 EC))

5 Competition - Concentrations between undertakings - Concentration with no Community dimension - Effect on trade between Member States - Criteria - Potential effect - Covered

(EC Treaty, Arts 85 and 86 (now Arts 81 EC and 82 EC); Council Regulation No 4064/89, Art. 22(3))

6 Competition - Concentrations between undertakings - Concentration with no Community dimension - Creation or strengthening of dominant position - Assessment must take into account the conditions laid down in Article 2(1)(a) and (b) of Regulation No 4064/89

(Council Regulation No 4064/89, Arts 2, 3 and 22)

7 Competition - Concentrations between undertakings - Concentration with no Community dimension - Investigation by the Commission at the request of a Member State - Assessments of an economic nature - Discretionary margin of appraisal - Judicial review - Limits

(Council Regulation No 4064/89, Arts 2 and 22(3))

Summary

1 The fact that the contractual basis for a concentration has disappeared cannot in itself exclude judicial review of the legality of a Commission decision declaring that concentration incompatible with the common market. The applicant undertaking therefore retains an interest in seeking annulment of that decision.

2 Where an undertaking has merely complied with a Commission decision, as it was obliged to do, it cannot on that account be deprived of its interest in seeking annulment of that decision.

3 It is not for the Commission to rule on the division of competences by the institutional rules proper to each Member State. Accordingly, it is not for the Commission to determine, at the stage of the administrative procedure for monitoring concentrations of undertakings, whether a particular national authority is competent under national law to submit a request under Article 22(3) of Regulation No 4064/89; the Commission is required only to verify that the request referred to it is prima facie a request made by a Member State within the meaning of that provision. The notion of a request by a `Member State' within the meaning of Article 22(3) is not limited to requests from a government or ministry, but also encompasses requests from national anti-trust authorities.

4 In an action brought under Article 173 of the EC Treaty (now, after amendment, Article 230 EC), the Community judicature has no jurisdiction to rule on the lawfulness of a measure adopted by a national authority.

5 It is necessary to apply to the criterion of an effect on trade between Member States, within the meaning of Article 22(3) of Regulation No 4064/89, an interpretation which is consistent with that given to it in the context of Articles 85 and 86 of the Treaty (now Articles 81 EC and 82 EC). According to that interpretation, it is not necessary that the conduct in question should in fact have substantially affected trade between Member States. It is sufficient to establish that the conduct in question is capable of having such an effect. Secondly, it makes no difference whether such conduct is confined to a single Member State as long as it is capable of affecting patterns of trade and competition in the common market.

That conclusion is not invalidated by the fact that the word `may', appearing in Articles 85 and 86 of the Treaty, does not feature in Article 22(3) of Regulation No 4064/89. It is apparent from the very nature of the control of concentrations established by Regulation No 4064/89 that the Commission is required to carry out a prospective analysis of the effect of the concentration in question, and hence to consider, in the context of Article 22(3) of that regulation, its effect on trade between Member States in the future. It follows that the Commission is entitled, in that context, to take account of potential effects on trade between Member States, provided that they are sufficiently appreciable and foreseeable, without being required to establish that the concentration in question has actually affected intra-Community trade.

6 Article 3 of Regulation No 4064/89 on the control of concentrations between undertakings merely defines the criteria governing the existence of a `concentration'. Where, in a proceeding under Article 22(3) of Regulation No 4064/89, the Commission finds that an operation does indeed constitute a concentration within the meaning of Article 3, it is in no way bound, when assessing the effect of the concentration at issue on competition, to apply the control test referred to in Article 3. The question whether that concentration creates or strengthens a dominant position as a result of which effective competition would be significantly impeded within the territory of the Member State concerned must take account of the conditions laid down by Article 2(1)(a) and (b) of Regulation No 4064/89, in accordance with the first sentence of Article 22(4) of that regulation.

7 The Commission is required, in the context of a request under Article 22(3) of Regulation No 4064/89, to verify, by means of a prospective analysis of the markets concerned, whether the concentration referred to will give rise to the creation or strengthening of a dominant position as a result of which effective competition will be significantly impeded within the territory of the Member State concerned. In that connection, the basic provisions of the regulation, in particular Article 2 thereof, confer on the Commission a certain power of appraisal, especially with respect to assessments of an economic nature. Consequently, review by the Community judicature of the exercise of that power, which is essential for defining the rules on concentrations, must take account of the discretionary margin of appraisal implicit in the provisions of an economic nature which form part of the rules on concentrations.