European Competition Law provides a wide-ranging review of the European rules relating to competition: restrictive agreements, abuse of a dominant position, impact of intellectual property rights, procedure, merger control, State aid.

European Competition Law

The right to be heard, at every stage of the merger control procedure, is also open to third parties, i.e. natural or legal persons who are incidentally affected by the decision, provided they demonstrate a sufficient interest (Regulation No 802/2004, Article 16). The status of third party has been admitted for competitors of the merging parties , institutions representing the staff of the underta …

Rights of third parties

The right to be heard, at every stage of the merger control procedure, is also open to third parties, i.e. natural or legal persons who are incidentally affected by the decision, provided they demonstrate a sufficient interest (Regulation No 802/2004, Article 16). The status of third party has been admitted for competitors of the merging parties , institutions representing the staff of the undertakings concerned , members of the administrative or management bodies of the undertakings concerned, or consumer associations, where the proposed merger concerns products or services used by final consumers (Regulation No 802/2004, Article 11) . However, third parties do not enjoy identical guarantees to those given to the interested parties. They must submit a request to be heard in writing. In response the Commission informs them in writing of the subject-matter and nature of the proceedings and fixes a time-limit to make known their views. Only the request for hearing, and not the request for information, creates an obligation of information imposed on the Commission .

The right to access to documents exchanged during merger control proceedings by third parties has given rise to differences of opinion between the General Court and the Court of Justice. The General Court, relying on Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents, granted third parties a right to access that the Merger Regulation did not. The EU judicature thus considers that as public access to documents of the institutions should not be impeded, the Commission cannot generally refuse access to documents submitted in the context of the notification of a concentration on the grounds that they are covered by the exception relating to the protection of commercial interests, without carrying out a specific, individual examination of each document. Further, the duty of professional secrecy is not so extensive as to justify any general, abstract refusal of access to documents sent in the context of the notification of a concentration. Lastly, acts of investigation must be accessible without waiting for the decision on compatibility and the approval decision adopted following the inspection to become final .

However, the Court of Justice considers that generalized access, on the basis of Regulation No 1049/2001, to the documents exchanged in such a merger control procedure between the Commission and the notifying parties or third parties, is likely to jeopardize the balance which the European Union legislature sought to ensure in the merger control regulation between the obligation on the undertakings concerned to send the Commission possibly sensitive commercial information and the guarantee of increased protection, by virtue of the requirement of professional secrecy and business secrecy, for the information so provided to the Commission. It also acknowledges that for the purposes of interpretation of the exceptions under the first and third indents of Article 4(2) of Regulation No 1049/2001, the existence of a general presumption that disclosure of documents exchanged between the Commission and undertakings during control proceedings of mergers between undertakings undermines, in principle, both protection of the objectives of investigation activities and that of the commercial interests of the undertakings involved in such a procedure . Therefore, according to the Court of Justice , Regulation No 1049/2001, interpreted in the light of the specific legislation on merger control, enables the Commission to refuse access to all the documents in dispute relating to the merger control procedures exchanged between the Commission and the notifying undertakings and third parties, without first carrying out a concrete, individual examination of these documents.

Third parties make known their views within the set time-period. If they so request, they may attend a formal hearing.

Case T-290/94 Kaysersberg v Commission [1995] ECR II-2247, LawLex200500004253JBJ.

Case T-12/93 CCE Vittel v Commission [1993] ECR II-449, LawLex200500004966JBJ; Case T-96/92 CCE de la Société générale des grandes sources and others v Commission [1995] ECR II-1213, LawLex200500004252JBJ.

Case T-224/10 Association belge des consommateurs test-achats ASBL [2011] ECR p. II-7177, LawLex201200000111JBJ, a consumer association must make its application to be heard by the Commission in writing.

Case T-96/92 CCE de la Société générale des grandes sources and others v Commission [1995] ECR II-1213, LawLex200500004252JBJ: specified third parties to the procedure showing a sufficient interest, such as employees' representative organizations, who did not apply to be heard but made a mere request for information, do not enjoy a right to be informed in writing of the nature and subject-matter of the case before making known their views.

Case T-237/05 Éditions Odile Jacob SAS [2010] ECR p. II-2245, LawLex201400000160JBJ. 

Case C-404/10 P Commission v Éditions Odile Jacob, Judgment of 28 June 2012, LawLex201200002005JBJ.

Case C-477/10 P Agrofert Holding, Judgment of 28 June 2012, LawLex201200002006JBJ.

European Competition Law

361. Rights of third parties

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

361. Rights of third parties

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise