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 Commission issues a favorable decision - either because it finds that the concentration is in principle compatible, or because the modifications brought by the undertakings concerned to the transaction may make it compatible - within not more than 90 working days of the date on which the proceedings are initiated (Regulation No 139/2004, Article 10(3)) Such a decision may include conditions an …

Commission decision

The Commission issues a favorable decision - either because it finds that the concentration is in principle compatible, or because the modifications brought by the undertakings concerned to the transaction may make it compatible - within not more than 90 working days of the date on which the proceedings are initiated (Regulation No 139/2004, Article 10(3)) Such a decision may include conditions and obligations (Regulation No 139/2004, Articles 8(1) and 8(2)). By contrast, its decision will be unfavorable if it finds that the concentration is incompatible or if the concentration has already been implemented although it is incompatible or has been implemented in contravention of a condition laid down in the decision (Regulation No 139/2004, Articles 8(3) and 8(4)): the dissolution or any other appropriate measures restoring the previous situation may in this case be ordered. The decision must take place within reasonable period .

In all cases, Article 296 TFEU subjects the Commission decisions to an obligation to state reasons. According to the Court of Justice , the statement of reasons must be adapted to the nature of the measure in question. In particular, it must disclose in a clear and unequivocal fashion the reasoning that has lead the Commission to take its decision in order for the parties concerned to claim their rights and for the EU Courts to carry out their review . The Commission has given sufficiently detailed reasons for its decision not to exclude either the pre-notification period or the extended Phase I investigation period for the purposes of determining the duration of the infringement of Article 7(1) of Regulation No 139/2004 - which consists in the completion of the transaction without prior notification or authorization - where it finds that there are serious doubts as to its compatibility with the internal market and where competitive harm could not be excluded, at least to some extent, after the completion of the operation and before its authorization . It is not necessary for the decision to indicate all facts and points of law. It is sufficient that the decision clearly sets out the reasons for which the concentration, in particular following modifications, does not raise serious doubts . On the other hand, when it imposes two penalties for the same gun-jumping behavior, for breach of the obligation to suspend and notify the transaction, considering that these two infringements, of identical nature and gravity, were different in terms of duration, one being an instantaneous infringement and the other a continuous infringement, the Commission must explain why, despite this difference, it imposed fines of identical amounts . The statement of reasons may thus be extremely brief when adopted in a context that is well known to the applicant and allows the reader to understand the findings on which it bases its reasoning .

The Commission final decisions are published in the Official Journal of the European Union (Regulation No 139/2004, Article 20). Where the decision is the subject of a summary published in the Official Journal mentioning its subsequent publication in full text on the Commission's website in the following terms: “A non-confidential version of the full text of the decision in the language of the proceedings may be found on the website of the Directorate-General for Competition at the following address: http://ec.europa.eu/comm/competition/index_en.html”, the relevant date for determining the deadline for appeal is the date of  publication of the non-confidential version on the Commission's website .

On the other hand, Regulation No 139/2004 does not require the publication in the Official Journal of Commission decisions adopted under its Article 6(1)(b)  even though in practice the Commission has taken upon itself the obligation to publish such decisions, with due regard for the confidentiality of information subject to professional secrecy or other exceptions of public policy, so that the publication of such a decision, after a considerable lapse of time, remains without influence on its validity .

Case T-251/00 Lagardère and Canal+ v Commission [2002] ECR II-4825, LawLex200500004271JBJ, ECLR 2003, 315-320.

Case C-170/02 P Schlüsselverlag J.S. Moser and others v Commission [2003] ECR I-9889, LawLex200500004278JBJ, declaring the nullity of a decision of partial withdrawal stating insufficient reasons.

Thus, the Commission, on request of third-party undertakings, has to give a formal and reasoned determination on the question of whether a concentration which has not been notified to it, and has been approved by a national authority, has a EU dimension: Case C-170/02 P Schlüsselverlag J.S. Moser and others v Commission [2003] ECR I-9889, LawLex200500004278JBJ. Likewise, the decision partly withdrawing a compatibility decision does not duly state reasons where it does not take account of the applicant's legitimate expectation, and does not show the manifestly unlawfulness of the decision in question: Case T-251/00 Lagardère and Canal+ v Commission [2002] ECR II-4825, LawLex200500004271JBJ.

Case T-704/14 Marine Harvest, Judgment of 26 October 2017, LawLex201700001735JBJ.

Case T-151/05 NVV and others v Commission [2009] ECR II-1219, LawLex201000000663JBJ.

Case C-746/21 P Altice Group Lux Sarl, Judgment of 9 November 2023, LawLex202300013342JBJ, adding that, consequently, the General Court could not dismiss the complaint alleging breach of the obligation to state reasons on the sole ground that, logically, a comparison cannot be made between the duration of a continuous infringement and an instantaneous infringement, since the latter has no duration.

Case C-42/01 Portugal v Commission [2004] ECR I-6079, LawLex200500004277JBJ.

Case T-884/16 Multiconnect and Case T-885/16 Mass Response Service, Judgments of 9 October 2018, not available in English.

Case T-312/20 EVH GmbH, Judgment of 17 May 2023, LawLex202500006731JBJ.

European Competition Law

363. Commission decision

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363. Commission decision

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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