Keywords
Summary

Keywords

1. Actions for annulment — Natural or legal persons — Measures of direct and individual concern to them — Decision declaring a notified concentration compatible with the common market — Third-party undertaking which is a direct competitor in a neighbouring market to the dominated market and which participated in the administrative procedure — Admissibility — (Art. 230, fourth para., EC)

2. Procedure — Application initiating proceedings — Procedural requirements — Summary of the pleas in law relied on — Pleas in law not set out in the application — Reference to arguments put forward in the administrative procedure — Inadmissible — (Rules of Procedure of the Court of First Instance, Art. 44(1)(c))

3. Competition — Concentrations between undertakings — Assessment of compatibility with the common market — Creation or strengthening of a dominant position — No significant impediment to effective competition — Permissible — (Council Regulation No 4064/89, Art. 2(2))

4. Competition — Concentrations between undertakings — Investigation by the Commission — Examination according to the impact on the market of the operation in question — (Art. 81 EC; Council Regulation No 4064/89, Art. 2)

5. Competition — Concentrations between undertakings — Investigation by the Commission — Commitments entered into by the undertakings concerned likely to make the notified concentration compatible with the common market — Commitments as to conduct — Permissible — (Council Regulation No 4064/89, Art. 2(2) and (3))

6. Competition — Concentrations between undertakings — Investigation by the Commission — Adoption of a decision declaring a notified concentration compatible with the common market without initiating the Phase II procedure — Condition — No serious doubts — Commitments entered into by the undertakings concerned likely to dispel the doubts which have arisen and to make the notified concentration compatible with the common market — Economic assessments — Discretion — Judicial review — Subject-matter — No manifest error of assessment — (Council Regulation No 4064/89, Art. 6(1) and (2))

7. Competition — Concentrations between undertakings — Investigation by the Commission — Commitments entered into by the undertakings concerned likely to make the notified concentration compatible with the common market — Commitments appearing essentially to relate to adopting conduct which does not infringe Article 82 EC — Commitments not entirely without interest — (Art. 82 EC)

8. Competition — Concentrations between undertakings — Administrative procedure — Commitments entered into by the undertakings concerned — Modifications notified beyond time-limit — Commission taking into account modified commitments and finding the concentration to be compatible with the common market — Permissible — (Commission Regulation No 447/98, Art. 18(1))

9. Competition — Concentrations between undertakings — Investigation by the Commission — Commission ' s obligations vis-à-vis qualifying third parties — Communication, for prior comment, of the final terms of the commitments given by the undertakings concerned — None — (Council Regulation No 4064/89, Arts 6(1)(c) and 18(4))

Summary

1. Persons other than those to whom a decision is addressed may claim to be individually concerned only if the decision affects them by reason of certain attributes peculiar to them or by reason of factual circumstances in which they are distinguished from all other persons, and by virtue of those factors distinguishes them individually in the same way as the person addressed.

In the case of a decision declaring a notified concentration compatible with the common market, and in the case of a third-party undertaking, it is appropriate to examine to what extent its participation in the administrative procedure and the effect on its market position are such as to distinguish it individually for the purposes of Article 230 EC.

First, mere participation in the procedure is indeed not by itself sufficient to establish that a third-party undertaking is individually concerned by that decision, especially in the field of concentrations, the thorough examination of which requires contact with numerous undertakings, active participation in that procedure is a factor to be taken into consideration, inter alia, in the more specific field of control of mergers, in establishing, in the light of other specific circumstances, whether an action is admissible. This is all the more so in this case where that active participation had an effect on the course of the procedure and, at least in part, on the content of the contested decision, both as regards the finding that the merger raised serious doubts and as regards the commitments necessary to dispel those doubts.

Next, regarding impact, the fact that the third-party undertaking cannot be considered to be a competitor, or even a potential competitor on the market in question, does not necessarily mean that it is not individually concerned by the decision. In the same way as potential competitors of the parties to the concentration may have standing to apply for annulment of an approval decision in the case of oligopolistic markets, where an undertaking holding a monopoly sees its position strengthened by a concentration, an action for annulment brought by an operator present only on neighbouring upstream or downstream markets may, in certain circumstances, also be admissible.

see paras 62-63, 76, 78

2. Since it is not for the Court to seek and identify in the annexes to an action the grounds on which it may consider it to be based, since the annexes have a purely evidential and instrumental function, it is not appropriate to take account of the arguments put forward by the applicant during the administrative procedure but not reproduced in the application.

see para. 97

3. Under Article 2(2) of Regulation No 4064/89, a concentration which does not create or strengthen a dominant position as a result of which effective competition would be significantly impeded in the common market or in a substantial part of it must be declared compatible with the common market. It follows that, when a concentration creates or strengthens a dominant position, the Commission must none the less authorise the operation if it does not lead to effective competition being significantly impeded.

see para. 130

4. All notified concentrations must be examined in light of their own impact on the market. Thus, the same notified concentration, re-notified following an opposition, could possibly be authorised if market conditions had evolved in such a way that it no longer appears to be incompatible with the common market. Accordingly, a comparison with other merger cases can be relevant only if it is established that they raise the same competition problems and concern markets with the same characteristics and where conditions have not changed.

see para. 169

5. In accomplishing its mission of monitoring notified concentrations between undertakings, the Commission is empowered to accept only commitments which are capable of preventing the creation or strengthening of the dominant position identified by it. In order to ascertain whether that criterion is met, it is appropriate to examine the commitments on a case-by-case basis, without its being necessary to examine whether the commitment may be categorised as behavioural or structural. Although structural commitments are, as a rule, preferable to behavioural commitments, inasmuch as they prevent once and for all, or at least for some time, the emergence or strengthening of the dominant position and do not require medium- or long-term monitoring measures, nevertheless the possibility cannot automatically be ruled out that commitments which at first sight are behavioural, for instance the granting of access to essential facilities on non-discriminatory terms, may themselves also be capable of preventing the emergence or strengthening of a dominant position.

see paras 193, 250

6. Given the complex economic assessments which the Commission is required to carry out in exercising the discretion which it enjoys under Regulation No 4064/89 with respect to examining the commitments proposed by the parties to a concentration, it is for the party wishing to obtain annulment of a decision approving a concentration at the end of phase I on the ground that the commitments are insufficient to dispel the serious doubts and thereby dispense the Commission from initiating phase II, to show that the Commission has committed a manifest error of assessment.

It follows that it is not for the Court of First Instance to substitute its own assessment for that of the Commission; the Court ' s review must be limited to ascertaining that the Commission has not committed a manifest error of assessment in finding that, overall, the commitments given were likely to resolve the competition-related problems identified as being raised by the notified concentration in question.

see paras 194, 245, 329

7. Although they are behavioural in nature and could be described as being obligations which, where applicable, could be imposed under Article 82 EC, commitments entered into in order to obtain an approval decision from the Commission for a notified concentration between undertakings must not be seen as offering more in relation to the general monitoring of abuses of dominant positions. In that monitoring, proof of a dominant position in the market in question and abuse thereof must be adduced by the Commission and by third parties. Conversely, the commitments imposed as preconditions of a decision approving a concentration have the effect of transferring the burden of proof of compliance to the undertakings concerned by the operation in question. To that extent, they already go beyond the general monitoring provided for in Article 82 EC.

see para. 202

8. Article 18(1) of Regulation No 447/98 on the notifications, time-limits and hearings provided for in Regulation No 4064/89 must be interpreted as meaning that, whilst the parties to a concentration cannot oblige the Commission to take account of commitments and modifications thereto submitted after the time-limit of three weeks, the Commission must nevertheless be able, where it considers that it has the time necessary to examine them, to authorise the concentration in light of those commitments even if modifications are made after expiry of the three-week time-limit.

It follows that the Commission is entitled to accept the modified version and the final version of the commitments beyond the three-week time-limit provided for in Article 18(1) of Regulation No 447/98, since it is not bound by that time-limit.

Point 37 of the Notice on remedies must be interpreted in the light of Article 18(1) of Regulation No 447/98. It follows that the Commission, if it considers that it has sufficient time to examine the modifications to the commitments beyond that time-limit, must be able to authorise the concentration in the light of the modified commitments.

see paras 386-390

9. In the field of control of concentrations, the legitimate interest of third parties in making known their views on the harmful effects of the concentration on competition is fully safeguarded where they are placed in a position, on the basis of all information communicated to them by the Commission during the procedure initiated under Article 6(1)(c) of Regulation No 4064/89 and, in particular, of the offers of commitments submitted by the undertakings concerned, to make known their views on the planned amendments to the proposed concentration with a view to removing the serious doubts existing as to its compatibility with the common market. In such a case, there is a sufficient guarantee that the considerations put forward by the competing third parties can, if appropriate, be taken into account by the Commission in determining whether the concentration is compatible with Community law and, in particular, whether the commitments proposed by the undertakings concerned appear to it to be sufficient for that purpose.

In addition, since the Commission, in phase II, is not required under Article 18(4) of Regulation No 4064/89 to send to qualifying third parties, for their prior comment, the final terms of the commitments given by the undertakings concerned on the basis of the objections raised by the Commission as a result, inter alia, of the comments received from third parties in regard to the proposed commitments offered by the undertakings in question, this is all the more so in the case of a Commission decision taken at the end of phase I.

see paras 416, 422-423