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Document 62020TJ0315
Judgment of the General Court (Fourth Chamber, Extended Composition) of 17 May 2023.
TEAG Thüringer Energie AG v European Commission.
Competition – Concentrations – German electricity market – Decision declaring the concentration compatible with the internal market – Action for annulment – Standing to bring proceedings – Admissibility – Obligation to state reasons – Definition of ‘single concentration’ – Right to effective judicial protection – Right to be heard – Definition of the market – Analysis period – Analysis of market power – Decisive influence – Manifest errors of assessment – Duty of diligence.
Case T-315/20.
Judgment of the General Court (Fourth Chamber, Extended Composition) of 17 May 2023.
TEAG Thüringer Energie AG v European Commission.
Competition – Concentrations – German electricity market – Decision declaring the concentration compatible with the internal market – Action for annulment – Standing to bring proceedings – Admissibility – Obligation to state reasons – Definition of ‘single concentration’ – Right to effective judicial protection – Right to be heard – Definition of the market – Analysis period – Analysis of market power – Decisive influence – Manifest errors of assessment – Duty of diligence.
Case T-315/20.
ECLI identifier: ECLI:EU:T:2023:259
Judgment of the General Court (Fourth Chamber, Extended Composition) of 17 May 2023 –
TEAG v Commission
(Case T‑315/20) ( 1 )
(Competition – Concentrations – German electricity market – Decision declaring the concentration compatible with the internal market – Action for annulment – Standing to bring proceedings – Admissibility – Obligation to state reasons – Definition of ‘single concentration’ – Right to effective judicial protection – Right to be heard – Definition of the market – Analysis period – Analysis of market power – Decisive influence – Manifest errors of assessment – Duty of diligence)
1. |
Judicial proceedings – Intervention – Objection of inadmissibility not raised by the defendant – Inadmissibility – Plea in law based on the applicant’s lack of standing to bring proceedings – Absolute bar to proceeding – To be considered of the Court’s own motion (Statute of the Court of Justice, Arts 40, fourth para., and 53, first para.; Rules of Procedure of the General Court, Arts 129 and 142(3)) (see paragraphs 27, 28) |
2. |
Action for annulment – Natural or legal persons – Measures of direct and individual concern to them – Direct concern – Criteria – Commission decision declaring a concentration compatible with the internal market – Action brought by an undertaking competing with the parties to the operation – Decision liable to bring about an immediate change in the state of the market concerned – Direct concern to the applicant (Art. 263, fourth para., TFEU) (see paragraph 31) |
3. |
Action for annulment – Natural or legal persons – Measures of direct and individual concern to them – Individual concern – Criteria – Commission decision declaring a concentration compatible with the internal market – Action brought by an undertaking competing with the parties to the operation – Undertaking having participated actively in the administrative procedure and proved specific circumstances characterising the conditions affecting its market position – Admissibility (Art. 263, fourth para., TFEU) (see paragraphs 32, 33, 38, 42-46) |
4. |
Concentrations between undertakings – Examination by the Commission – Adoption of a decision finding a concentration compatible with the internal market without opening Phase II – Condition – No serious doubts – Economic assessments – Discretion – Judicial review – Limits – Manifest error of assessment (Art. 263 TFEU; Council Regulation No 139/2004, Arts 2 and 6(1)) (see paragraphs 48-53, 199-202, 210, 351) |
5. |
EU law – Definition – Interpretation – Taking account of a specific concept appearing only in the preamble to the act in question – Admissibility within the limits of the wording of the actual provisions of the act (Council Regulation No 139/2004, recital 20 and Art. 3(1)) (see paragraphs 75-79) |
6. |
Concentrations between undertakings – Examination by the Commission – Single concentration – Definition – Conditions – Interdependent operations conferring on one or more undertakings direct or indirect economic control over the activities of one or more other undertakings – Acquisition by independent undertakings of the control of different targets in an asset swap – Not included – No functional link between the operations at issue (Council Regulation No 139/2004, recital 20 and Art. 3(1)) (see paragraphs 80-86, 90-94, 97-101) |
7. |
Concentrations between undertakings – Assessment of the compatibility with the internal market – Creation or reinforcement of a dominant position significantly hindering effective competition in the internal market – Assessment of the anticompetitive effects of the transaction – Operations which are part of a complex asset swap with a relationship of interdependence making it possible to anticipate the likely effects on the market of each concentration – Application of the rule of priority – Not included – Overall assessment of all the evidence incumbent on the Commission (Council Regulation No 139/2004, Art. 2(3)) (see paragraphs 107-121) |
8. |
Acts of the institutions – Statement of reasons – Obligation – Scope – Decision to apply rules on concentrations between undertakings – Decision authorising a concentration operation (Art. 296 TFEU; Council Regulation No 139/2004) (see paragraphs 125-129, 139, 140, 145) |
9. |
Concentrations between undertakings – Administrative procedure – Obligations of the Commission towards qualified third parties – Right to be heard – Scope (Council Regulation No 139/2004, Art. 18(4); Commission Regulation No 802/2004, Arts 11(c) and 16(1)) (see paragraphs 154-165) |
10. |
Concentrations between undertakings – Examination by the Commission – Commission decision declaring a concentration compatible with the internal market – Requirements arising from the principle of effective judicial protection – Adoption of any appropriate publicity necessary to enable interested third parties to the concentration to know the reasons behind it – Publication of a non-confidential version of that decision – Whether sufficient (Arts 15, 296 and 297(2), TFEU; Charter of Fundamental Rights of the European Union, Art. 47; Council Regulation No 139/2004, Art. 6(1)(b)) (see paragraphs 176-189) |
11. |
Concentrations between undertakings – Assessment of the compatibility with the internal market – Creation or reinforcement of a dominant position significantly hindering effective competition in the internal market – Examination by the Commission – Prospective analysis – Definition of the period of analysis – Criteria (Council Regulation No 139/2004, Art. 2(2) and (3)) (see paragraphs 231-234) |
12. |
Concentrations between undertakings – Examination by the Commission – Assessment of the compatibility with the internal market – Compliance with the Guidelines adopted by the Commission – Consideration of the elements of assessment mentioned in those guidelines – Discretion of the Commission – Examination of the market share levels – Judicial review (Council Regulation No 139/2004, Art. 2; Commission Notice 2004/C 31/03, points 14, 16, 19 to 21 and 27) (see paragraphs 271, 349, 350) |
13. |
Concentrations between undertakings – Examination by the Commission – Account taken of data provided by the parties to the concentration – Manifest error of assessment – Burden of proof (Council Regulation No 139/2004) (see paragraphs 277-280) |
14. |
Concentrations between undertakings – Assessment of the compatibility with the internal market – Creation or reinforcement of a dominant position significantly hindering effective competition in the internal market – Assessment of the anticompetitive effects of the transaction – Evidence – High market share (Council Regulation No 139/2004, Art. 2(3); Commission Notice 2004/C 31/03, point 17) (see paragraphs 282-284) |
15. |
Concentrations between undertakings – Assessment of the compatibility with the internal market – Creation or reinforcement of a dominant position significantly hindering effective competition in the internal market – Assessment of the anticompetitive effects of the transaction – Acquisition of a competitor’s minority shareholding – Criteria for assessment – Common shareholding (Council Regulation No 139/2004, Arts 2(3) and 3(2)) (see paragraphs 367-388) |
16. |
Concentrations between undertakings – Examination by the Commission – Economic assessments – Discretion – Duty of diligence – Scope (Council Regulation No 139/2004) (see paragraphs 400-405) |
Operative part
The Court:
1. |
Dismisses the action; |
2. |
Orders TEAG Thüringer Energie AG to bear its own costs and to pay those incurred by the European Commission, E.ON SE and RWE AG; |
3. |
Orders the Federal Republic of Germany to bear its own costs. |
( 1 ) OJ C 247, 27.7.2020.