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

An action may be initiated against Commission decisions which are not mere preparatory instruments (decision to initiate proceedings, statement of objections...) but actions for annulment against decisions not producing any binding legal effects are inadmissible (decisions confirming compatibility and finding the existence of a dominant position and commitments upon which the compatibility of the  …

Remedies

An action may be initiated against Commission decisions which are not mere preparatory instruments (decision to initiate proceedings, statement of objections...) but actions for annulment against decisions not producing any binding legal effects are inadmissible (decisions confirming compatibility and finding the existence of a dominant position and commitments upon which the compatibility of the concentration were not conditional) . The review of a decision is in theory brought before the Court of Justice which has unlimited jurisdiction (Regulation No 139/2004, Article 16). In fact, pursuant to the Council decision of 24 October 1988 instituting a Court of First Instance of the European Communities (now the General Court), the General Court (as a component of the Court of Justice having jurisdiction to rule on actions for annulment, for failure to act or for damages brought by natural or legal persons) has jurisdiction to rule on any actions that undertakings initiate against Commission decisions under the supervision of the Court of Justice. The General Court also has jurisdiction to order the suspension of the operation of the contested act or to order interim measures. An expedited procedure was set up before the Court of Justice and the General Court in 2001 .

An action may be brought against any contested decision by the undertakings taking part in a concentration or by any third party concerned which demonstrates a violation of a legitimate interest . In addition to competitors of the participating undertakings  and persons whose interests are concerned by the commitments , it seems that all entities which are not parties to the proceedings but whose legal position is modified by the decision and, in particular, by the conditions and obligations attached to that decision, should also be included. This is the case of certain indirect competitors  or employees' representative organizations  - provided that the decision has an effect on their status or on the exercise of their prerogatives and duties  - or candidates for their purchase . By contrast, minority shareholders of one of the notifying parties to whom the act is not addressed, do not have a direct and individual interest in bringing proceedings . The interest in bringing proceedings is assessed on the date on which the action is commenced .

An action for annulment is in principle only open against a measure whereby the institution concerned definitively lays down its position following an administrative procedure, and provisional acts, the purpose of which is to pave the way for the final decision, as well as confirmatory acts or purely implementing acts cannot therefore be regarded as challengeable acts . In other words, any measure producing legal effects which is binding on, and capable of affecting the interests of the applicant by bringing about a distinct change in his legal position is an act which may be challenged within the meaning of Article 263 TFEU . Although, in principle, a compatibility decision does not have an adverse effect on the notifying parties , the EU court is nonetheless not dispensed from examining whether the contested findings have binding legal effects such as to affect their  interests . Likewise, the decision by which the Commission changes, against the applicants' interests, its assessment on the ancillary restrictions related to a transaction previously approved , or the adoption of an incompatibility decision where the notifying parties had declared that they would withdraw their notification before its adoption , is an act which may be challenged. On the other hand, the decision to close a procedure opened pursuant to Article 21(4) of Regulation No 139/2004, does not constitute a challengeable act where it is the result of the parties abandoning the merger . Where the Commission finds that the concentration which has been notified is covered by Regulation No 139/2004 and raises serious doubts as to its compatibility with the internal market and where it decides to initiate Phase II pursuant to Article 6(1)(c) thereof, this is a preparatory step whose sole aim is to initiate inquiries intended to identify the matters which will allow it to rule, by means of a final decision, on the compatibility of the transaction with the internal market and is therefore incapable of being the subject of an action for annulment . This also applies to e-mails from the Commission interpreting the scope of final commitments which do not constitute a final decision subject to an action for annulment, but are  merely legally non-binding statements that it is authorized to make in the context of ex-post supervision of the correct implementation of its decisions relating to the control of concentrations. And finally, contrary to what is provided for in Article 7 of Regulation No 773/2004 relating to the conduct of proceedings by the Commission pursuant to Articles 101 and 102 TFEU and Article 12 of Regulation No 2015/1589 laying down rules for the application of Article 108 TFEU, there is no obligation imposed on the Commission to respond to possible complaints put forward for failure to respect merger decisions by a decision against which an action for annulment could be brought . 

The action may be brought by any person able to justify that one of its legitimate interests has been affected . Such is not the case for an applicant having been put into liquidation, which, as it no longer operates commercially, cannot be regarded as a competitor of the parties to the concentration . A consumer association can bring an action for annulment of a decision authorizing a merger only to the extent to which its purpose is to ensure protection of the procedural guarantees which that applicant is recognized as having during the administrative procedure, such as the right to be heard . On the other hand, an undertaking included on a shortlist of five potential purchasers of the assets to be sold in connection with a concentration shows an interest in having the Commission decision approving another one of those five undertakings annulled because that decision could inevitably affect its commercial situation, irrespective of whether, in the case of the annulment of the contested decision, it might be approved as purchaser of the assets in question . In such a case, the annulment of the first decision does not call into question the legality of the decision declaring the concentration compatible with the internal market, subject to commitments .  If the right to bring proceedings requires an infringement of a legitimate interest, the right to intervene requires “an interest in the outcome of a dispute” which, according to the General Court, is to be understood as a direct and present interest in the outcome of the conclusions themselves, and not as an interest in relation to the pleas in law or the arguments raised, the terms “outcome of the dispute ” referring to the final decision sought, as enshrined in the operative part of the judgment to be delivered. An interest in the outcome of the dispute justifying the right to intervene is considered to be sufficiently direct when the outcome is such as to modify the legal position of the intervening party .  Thus, the applicant in the intervention, who merely asserts that it is the operator identified in the commitment entered into by the new entity in application of a fix-it-first remedy and that an access contract was concluded between the interested parties in order to comply with that commitment, without showing that the access contract would be affected by an annulment of the contested decision, does not show that it has a direct and current interest in the outcome of the dispute . Similarly, participation in the administrative proceedings is insufficient to establish such an interest .

In the field of merger control, the review of Commission decisions by the EU judicature is limited to formal and procedural aspects. Therefore, the General Court cannot substitute its own assessment for that of the Commission .  The characterization of the nominee holding arrangement in respect of the target assets is of no relevance to the legality of the Commission decision declaring the concentration compatible with the internal market . The Commission's power of assessment entitles it to choose whether or not to take into consideration certain factors since the guidelines do not require an examination, in all cases, of the factors to which they refer . It thus makes an overall assessment of what is shown by the set of indicative factors used to evaluate the competitive situation without any need to establish a hierarchy between “non-technical evidence” and “technical evidence”, by prioritizing certain items of evidence while discounting others, before the carrying out of a review of legality by the General Court . The General Court applies a requirement of proof that does not derive from Regulation No 139/2004, when it considers that the Commission must demonstrate with a serious probability the existence of significant impediments to effective competition as a result of the merger in question .

However incomplete a Commission decision finding a concentration incompatible with the internal market may be, it cannot entail annulment of the decision if, and to the extent to which, all the other elements of the decision permit the Court to conclude that in any event implementation of the transaction will create or strengthen a dominant position as a result of which effective competition will be significantly impeded .

According to the general rules of Articles 278 TFEU and 279 TFEU, the EU judicature may order that the implementation of the contested act be suspended. It must be established, prima facie, that the application for suspension has legal basis and that there is a serious and irreparable harm. In assessing that harm, the judge hearing the application for interim measures must balance the interest of the proper administration of justice against the interests of the parties , including the Commission's interest in re-establishing effective competition, so as to avoid both the creation of an irreversible situation and the occurrence of serious and irreparable damage to one of the parties to the dispute or to the public interest . The urgent nature of the application for interim measures is only assessed afterwards . The applicant must not only demonstrate the existence of serious and irreparable harm , but that harm must also be certain , and be the undeniable result of the Commission decision . The risk of irreversible alteration of the current conditions of access to the market resulting from the Commission decision which imposes the parties' withdrawal from a joint venture justifies the adoption of a suspension of operation . By contrast, this is not the case of the risk of job losses which could result from a transfer of assets  or the loss of profit that would result from the exclusion from the divesting procedure .

To be admissible under Article 265 TFEU, an action for failure to act must be brought by a person having an interest to initiate proceedings. It assumes that the EU authority has an obligation and that it has failed to fulfill it, following a request to act . Therefore, the Commission cannot choose not to take account of complaints from undertakings which are not party to a concentration capable of having an EU dimension, and must undertake a diligent and impartial examination of the complaints . A letter from the Commission which states that it does not have jurisdiction due to lack of EU dimension in response to an operator's complaint of a violation of its obligation to take a decision on a concentration approved by a national authority, amounts to a defining of its position within the meaning of Article 265 TFEU .

The Commission may incur non-contractual liability following the annulment of an incompatibility decision on a concentration . Three cumulative conditions must be fulfilled to initiate an action for damages in order to be compensated for the loss suffered: the conduct attributed to the institution must be unlawful, actual damage must have been suffered and there must be a causal link between the conduct and the damage (Article 340(2) TFEU). The mere fact that the incompatibility decision taken by the Commission has been annulled by the General Court for errors of assessment does not per se demonstrate that there has been a sufficiently serious breach of a rule of law intended to confer rights on individuals, as such a rule would result in limiting the exercise of merger control . Likewise, the annulment of the Commission's incompatibility and divestiture decision does not incur its liability where the direct cause of the damage claimed is the notifying party's decision who could have refrained from going ahead with the transfer and chosen to participate in the investigation procedure .

Case T-125/97 Coca-Cola v Commission [2000] ECR II-1733, LawLex200500004262JBJ.

Rules of procedure of the Court of Justice, Article 62(a); Rules of procedure of the Court of First Instance, Article 76(a).

Case T-22/97 Kesko v Commission [1999] ECR II-3775, LawLex200500004261JBJ, pt. 55.

Case T-885/16 Mass Response Service, Judgment of 9 October 2018, not available in English and earlier Case T-902/16 HeidelbergCement AG, Judgment of 27 November 2017, LawLex201900000466JBJ, adding that the legal defects of the provisional measures intended to pave the way for the final decision could be raised in an action against that decision.

Case 60/81 IBM v Commission [1981] ECR 2639, LawLex200500003899JBJ; See also Case C-68/94 France and Société commerciale des potasses et de l'azote and Entreprise minière et chimique v Commission [1998] ECR I-1375, LawLex200500004280JBJ: the mere finding by the Commission of a commitment by one of the parties to the concentration to enter into negotiations with a third party player on the control of a joint venture cannot be the subject of an action for annulment from that third party insofar as its legal position cannot be affected except of its own volition.

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

Case T-310/00 MCI v Commission [2004] ECR II-3253, LawLex200500004276JBJ.

Case T-58/09 Schemaventotto SpA [2010:] ECR p. II-3863, LawLex201400000126JBJ.

Case T-902/16 HeidelbergCement AG, Judgment of 27 November 2017, LawLex201900000466JBJ.

Case T-43/16 1&1 Telecom, Judgment of 9 October 2018, LawLex201800001483JBJ; Case T-884/16 Multiconnect, and Case T-885/16 Mass Response Service, Judgments of 9 October 2018, not available in English, noting that without prejudice to the possibility for the Commission to find an infringement of the final commitments and to take the measures it deems appropriate by means of a decision adopted under Article 8(4) and (5) of Regulation No 139/2004, it is entirely permissible for third parties benefitting from the legal effects of those commitments to rely thereupon before the competent national courts, which must rule on such disputes or refer a question for a preliminary ruling to the Court of Justice on the validity or the interpretation of the final commitments or final decision. In addition, any dispute with the Commission as to the interpretation of the scope of the final commitments made binding by means of a decision clearing a merger does not constitute an excusable error capable of re-opening the possibility for a third party to lodge an application for the annulment of that decision beyond the period of two months from the publication of the decision, since the concept of excusable error must be interpreted restrictively and can only concern exceptional circumstances.

Case T-22/97 Kesko v Commission [1999] ECR II-3775, LawLex200500004261JBJ.

Case T-269/03 Socratec v Satellite Navigation Consulting [2009] ECR p. II-88, Summ.pub, not available in English.

Case T-224/10 [2011] Association belge des consommateurs test-achats ASBL, LawLex201200000111JBJ.    

Case T-471/11 Editions Odile Jacob, Judgment of 5 September 2014, LawLex201500000736JBJ.

Case C-514/14 P Éditions Odile Jacob (SAS), Judgment of 28 January 2016, not available in English.

Case T-58/20 NetCologne Gesellschaft für Telekommunikation mbH, Order of 23 September 2020, not available in English.

Case T-69/20 Tele Columbus AG, 23 September 2020, Order of 23 September 2020, not available in English.

Case T-64/20 Deutsche Telekom AG, 23 Septembre 2020, Order of 23 September 2020, LawLex202100000458JBJ.

Case T-342/00 Petrolessence and SG2R v Commission [2003] ECR II-1161, LawLex200500004272JBJ.

Case C-551/10 P Éditions Odile Jacob SAS v European Commission [2012], LawLex201200002288JBJ.

See Case T-119/02 Royal Philips Electronics v Commission [2003] ECR II-1433, LawLex200400003306JBJ.

Case T-405/08 Spar Österreichische Warenhandels, Judgment of 7 June 2013, not available in English.

Case T-175/12 Deutsche Börse AG, Judgment of 9 March 2015, LawLex201700000663JBJ.

The General Court does not overstep the bounds of judicial review in interpreting the concepts of “important competitive force” and “close competitors”, but makes an error of law when it considers that in order to classify an undertaking as a “major competitive force”, the Commission must demonstrate that the undertaking is engaged in particularly aggressive price competition, forcing other market players to align themselves on its prices, or that its pricing policy is likely to significantly amend the competitive dynamics on the market, whereas it is sufficient that the undertaking plays a more important role in competition than its market share or any other similar indicators would suggest -  see. Case C-376/20  Commission v CK Telecoms UK Investments Ltd Judgment of 13 July 2023, which also adds that the General Court cannot hold that the Commission should have included in its quantitative analysis of the effects of the proposed merger on prices, the standard efficiencies that accompany all mergers, since, while certain mergers may result in efficiencies that are specific to them, In any case, the onus is on the notifying parties to demonstrate such efficiencies so that the Commission can take them into account in its review. Therefore, in view of the scale, nature and scope of the errors made, the ruling  by which the General Court annulled the Commission's decision declaring the proposed merger incompatible with the internal market must be set aside. 

Case T-175/12 Deutsche Börse AG, cited above.

Case T-417/05 R Endesa v Commission [2006] ECR II-18: the harm to the legal order or the interests of the shareholders of an undertaking having been the addressee of a public takeover bid which may result from a decision to refer the assessment of a concentration to the national authorities, must be assessed not only in view of its urgency but after balancing the interests at issue for the admissibility of an application for suspension of operation and interim measures.

Case T-88/94 R Société commerciale des potasses et de l'azote and Entreprise minière et chimique v Commission [1994] ECR II-263, LawLex200500004248JBJ: the application for suspension of the operation of a compatibility decision which orders the withdrawal of the parties to the concentration from a joint venture is admissible where such a withdrawal creates a risk of irreversible alteration of the current conditions of access to the market, by causing the dissolution of the company.

Case T-417/05 R Endesa v Commission [2006] ECR II-18, the condition relating to urgency is not fulfilled where an undertaking having been the addressee of a bid applies for the suspension of the national proceedings.

Case T-417/05 R Endesa v Commission [2006] ECR II-18, the possible violation of the procedural rights of the addressee of a bid, which would be likely to result in a decision to refer the assessment of the concentration to the national authorities due to an absence of EU dimension, is not an irreparable harm justifying an interim application to suspend national proceedings while waiting for the outcome of the main proceedings on this matter.

Case T-322/94 R Union Carbide v Commission [1994] ECR II-1159, LawLex200500004250JBJ: an application for suspension of the operation of a decision authorizing a concentration is not admissible where the alleged weakening of the competitive position is not the necessary consequence of the decision and the damage which it might cause is entirely hypothetical and based on the unpredictable probability of future and uncertain events; Case T-417/05 R Endesa v Commission [2006] ECR II-18: where the claimed harm relating to a possible acquisition of control and dismantling is not sufficiently likely, as the success of the bid is not demonstrated and national remedies make it possible to avoid serious and irreparable harm, the application for suspension of the operation is inadmissible.

Case T-12/93 R CCE Vittel v Commission [1993] ECR II-785, LawLex200500004243JBJ: even if the loss conferred by a collective agreement appears certain, the employees of a company which is the subject-matter of a concentration may claim that such harm necessarily results from the compatibility decision to support an application for suspension of operation.

Case C-68/94 France and Société commerciale des potasses et de l'azote and Entreprise minière et chimique v Commission [1998] ECR I-1375, LawLex200500004280JBJ: persons whose position on the market may be appreciably affected by the commitments entered into by the parties to a concentration and who have taken part in the proceedings, are directly and individually concerned by the decision confirming compatibility having set those commitments.

Case T-88/94 R Société commerciale des potasses et de l'azote and Entreprise minière et chimique v Commission [1994] ECR II-263, LawLex200500004248JBJ: the application for suspension of the operation of a compatibility decision which imposes the withdrawal of the parties to the concentration from a joint venture is admissible where such a withdrawal creates a risk of irreversible alteration of the current conditions of access to the market, by entailing dissolution of the company; Case T-395/94 R Atlantic Container Line and others v Commission [1995] ECR II-595, LawLex200500004251JBJ.

Case T-96/92 R CCE de la Société générale des grandes sources and others v Commission [1992] ECR II-2579, LawLex200500004242JBJ: as a decision authorizing a concentration cannot, in principle, have repercussions on the rights of the employees, the application for suspension of operation based on the risk of job losses which could result from a transfer of assets is inadmissible; Case T-12/93 R CCE Vittel v Commission [1993] ECR II-785, LawLex200500004243JBJ: a decrease in the assets of an undertaking as a result of the transfer entailed by the concentration of a subsidiary is not liable to cause serious and irreparable damage regarding the maintenance of employment.

Case T-342/00 R Petrolessence and SG2R v Commission [2001] ECR II-67, LawLex200500004263JBJ: the expense occasioned by the participation in a divesting procedure as part of a concentration or the loss of profit resulting from the exclusion from that divesting procedure are damage of a pecuniary nature, easily reparable, which do not justify an application for suspension of operation of the decision having approved those commitments.

Thus, at the request of third-party undertakings, the Commission must formally declare with reasons whether a concentration which has not been notified to it and has been approved by a national authority, has a EU dimension or not: Case C-170/02 P Schlüsselverlag J.S. Moser and others v Commission [2003] ECR I-9889, LawLex200500004278JBJ.

Case C-170/02 P Schlüsselverlag J.S. Moser and others v Commission [2003] ECR I-9889, LawLex200500004278JBJ.

Case T-3/02, Schlüsselverlag J.S. Moser and others v Commission [2002] ECR II-1473, LawLex200500004264JBJ.

Case T-351/03 Schneider Electric v Commission [2007] ECR II-2237, LawLex200800000268JBJ.

Case T-212/03 MyTravel v Commission [2008] ECR II-1967, LawLex200900000160JBJ.

Case C-440/07 P Commission v Schneider Electric, LawLex200900003117JBJ.

Case T-158/00 ARD v Commission [2003] ECR II-3825, LawLex200400003308JBJ: a third party to a concentration, which is not a competitor of the parties but active on a neighboring market may exercise an action for annulment against the decision confirming compatibility as a result of a certain competition between those two markets and a future convergence due to technological progress, where its active participation in the proceedings does not establish an interest in bringing proceedings per se but is taken into consideration to assess the admissibility of its action; See by contrast: Case T-350/03 Wirtschaftskammer Kärnten and best connect Ampere Strompool v Commission [2006] ECR II-68: a third party to a concentration which only answers to a request for information and does not submit observations during the control procedure and who is only generally and abstractly concerned as a result of the factual consequences that the concentration produces in the market, does not have an individual interest in brining an action for annulment.

See, Case T-96/92 CCE de la Société générale des grandes sources and others v Commission [1995] ECR II-1213, LawLex200500004252JBJ: the employees' representative organizations of the undertakings concerned by a concentration are individually concerned by a decision confirming compatibility, within the meaning of Article 263 TFEU, whether or not they have participated in the administrative procedure.

Case T-12/93 CCE Vittel v Commission [1993] ECR II-449, LawLex200500004966JBJ.

Case T-114/02 BaByliss v Commission [2003] ECR II-1279, LawLex200400003303JBJ; Case T-342/00 Petrolessence and SG2R v Commission [2003] ECR II-1161, LawLex200500004272JBJ.

Case T-83/92 Zunis Holding and others v Commission [1993] ECR II-1169, LawLex200500004244JBJ.

European Competition Law

366. Remedies

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366. Remedies

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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