Keywords
Summary

Keywords

1. Actions for annulment - Actionable measures - Measures producing binding legal effects - Assessment of those effects in the light of the substance of the measure - Commission decision declaring a notified operation compatible with the common market - Decision in principle without adverse effect - Obligation of the Court of First Instance to examine the possible binding legal effects of the grounds

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

2. Actions for annulment - Actionable measures - Measures producing binding legal effects - Finding by the Commission of a dominant position - No such effects

(EC Treaty, Art. 86 (now Art. 82 EC) and Art. 173 (now, after amendment, Art. 230 EC))

3. Competition - Concentrations between undertakings - Examination by the Commission - Analysis of the definition of the relevant market and operators on it in a decision confirming compatibility - Whether permissible

(Council Regulation No 4064/89, Art. 8(2) and (3))

4. Actions for annulment - Actionable measures - Measures producing binding legal effects - Commitment by an undertaking in competition proceedings to respect certain specific obligations - Requirement that it produce binding legal effects

(EC Treaty, Arts 85 and 86 (now Arts 81 EC and 82 EC) and Art. 173 (now, after amendment, Art. 230 EC); Council Regulation No 4064/89, Art. 8(2))

Summary

1. Any measure which produces binding legal effects such as to affect the interests of an applicant by bringing about a distinct change in his legal position is an act or decision which may be the subject of an action under Article 173 of the Treaty (now, after amendment, Article 230 EC) for a declaration that it is void. To determine whether an act or decision produces such effects, it is necessary to look to its substance. It follows that the mere fact that a Commission decision declares a notified concentration operation compatible with the common market and thus, in principle, does not have an adverse effect on the applicants does not dispense the Court from examining whether the contested findings have binding legal effects such as to affect the applicants' interests.

( see paras 77-79 )

2. A mere finding of a dominant position by the Commission, even if likely in practice to influence the policy and future commercial strategy of the undertaking concerned, does not have binding legal effects so that the applicants' challenge to its merits is not admissible.

It should first be observed in that regard that the obligations imposed on undertakings by Article 86 of the Treaty (now Article 82 EC) do not require a finding in a Commission decision that those undertakings are in a dominant position but derive directly from that Article. Where an undertaking is in a dominant position it is obliged, where appropriate, to modify its conduct accordingly so as not to impair effective competition on the market regardless of whether the Commission has adopted a decision to that effect.

Second, such a finding is the outcome of an analysis of the structure of the market and of competition prevailing at the time the Commission adopts each decision. The conduct which the undertaking held to be in a dominant position subsequently comes to adopt in order to prevent a possible infringement of Article 86 of the Treaty is thus shaped by the parameters which reflect the conditions of competition on the market at a given time. Moreover, in the course of any decision applying Article 86 of the Treaty, the Commission must define the relevant market again and make a fresh analysis of the conditions of competition which will not necessarily be based on the same considerations as those underlying the previous finding of a dominant position.

The fact that, in the event of such a decision, the Commission may be influenced by that finding does not mean that, for that reason alone, that finding has binding legal effects. The undertaking concerned is not deprived of its right to bring an action for annulment before the Court of First Instance to challenge any Commission decision finding its conduct to be an abuse.

As regards the risk that the undertaking concerned will have fines imposed on it for breach of competition rules, it should be borne in mind that it is not the mere finding of a dominant position at a given time that may, possibly, give rise to that risk, but the undertaking's resorting to conduct which constitutes an abuse of that position.

As regards the effects which that finding may have on the application of the competition rules by national courts, it must be borne in mind that, in any event, the possibility that a national court applying Article 86 of the Treaty directly in the light of the decision-making practice of the Commission might reach the same finding of a dominant position does not mean that the contested finding has binding legal effects. A national court which has to assess action taken after a decision finding a dominant position is not bound by previous findings of the Commission. There is nothing to prevent it from concluding that an undertaking is no longer in a dominant position, contrary to the Commission's finding at the time when the contested decision was adopted.

( see paras 80-85, 91-92 )

3. Where the Commission intends to declare a notified operation compatible with the common market it is bound, in the light of the particular characteristics of each operation, to provide sufficient reasons for its decision in order to permit third parties, where necessary, to challenge the merits of its analysis in the Community courts. Whilst it is true that under the Commission's decision-making practice it generally only makes a detailed analysis of the definition of the relevant market and those operating on it if it intends to decide that an operation is incompatible pursuant to Article 8(3) of Regulation No 4064/89, there is nothing to prevent it, in view of the obligation to state reasons referred to above, from carrying out such an analysis when it adopts a decision that an operation is compatible, particularly if it is a decision taken under Article 8(2) of that regulation.

( see para. 90 )

4. An undertaking to respect certain specific obligations, taken by an undertaking in the course of proceedings initiated by the Commission on the basis of Articles 85 and 86 of the Treaty (now Articles 81 EC and 82 EC), can be the subject of an action for annulment if it is clear from an analysis of its substance that it seeks to produce binding legal effects. The argument that the applicants' challenge to the legality of the undertaking is not admissible on the ground that it was not the subject of a formal condition within the meaning of Article 8(2) of Regulation No 4064/89 must be rejected.

In order to determine whether the undertaking in question produces binding legal effects, it is necessary to consider whether the declaration that the notified operation is compatible was affected by it in the sense that, in the event of breach of its terms, the Commission could revoke its decision.

( see paras 4, 96-97 )