GC, 8th chamber, September 2, 2010, No T-58/09

THE GENERAL COURT (Eighth Chamber),

Legal context

1 Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (OJ 2004 L 24, p. 1) provides for a system for the control by the European Commission of concentrations with a Community dimension, as defined in Articles 1 and 3 of that regulation. Such concentrations must be notified to the Commission prior to implementation (Article 4 of Regulation No 139/2004). The Commission must determine whether or not they are compatible with the common market (Article 2 of Regulation No 139/2004).

2 Article 21 of Regulation No 139/2004 provides as follows:

'Application of the Regulation and jurisdiction

1. This Regulation alone shall apply to concentrations as defined in Article 3, and Council Regulations (EC) No 1/2003, (EEC) No 1017/68, (EEC) No 4056/86 and (EEC) No 3975/87 shall not apply, except in relation to joint ventures that do not have a Community dimension and which have as their object or effect the coordination of the competitive behaviour of undertakings that remain independent.

2. Subject to review by the Court of Justice, the Commission shall have sole jurisdiction to take the decisions provided for in this Regulation.

3. No Member State shall apply its national legislation on competition to any concentration that has a Community dimension.

The first subparagraph shall be without prejudice to any Member State's power to carry out any enquiries necessary for the application of Articles 4(4), 9(2) or after referral, pursuant to Article 9(3), first subparagraph, indent (b), or Article 9(5), to take the measures strictly necessary for the application of Article 9(8).

4. Notwithstanding paragraphs 2 and 3, Member States may take appropriate measures to protect legitimate interests other than those taken into consideration by this Regulation and compatible with the general principles and other provisions of Community law.

Public security, plurality of the media and prudential rules shall be regarded as legitimate interests within the meaning of the first subparagraph.

Any other public interest must be communicated to the Commission by the Member State concerned and shall be recognised by the Commission after an assessment of its compatibility with the general principles and other provisions of Community law before the measures referred to above may be taken. The Commission shall inform the Member State concerned of its decision within 25 working days of that communication.'

Background of the dispute

3 The applicant, Schemaventotto SpA, is an Italian company. It controls Atlantia SpA, formerly Autostrade SpA, which in turn controls Autostrade per l'Italia SpA (ASPI), which holds the concession for the construction and management of toll motorways in Italy. The intervener, Abertis Infraestructuras, SA, is a Spanish company whose main activity is the management of toll motorways.

4 On 23 April 2006 the boards of directors of Autostrade and the intervener approved the 'Abertis/Autostrade concentration', a proposed amalgamation entailing the merger by incorporation of Autostrade into the intervener and the formation of a new company with its registered office in Spain. The concentration was then approved by the general meetings of the shareholders of Autostrade and the intervener.

5 By binding notice of 4 August 2006, the Italian Minister for Infrastructures, the Italian Minister for the Economy and Finance and, by decision of 5 August 2006, the Azienda nazionale autonoma delle Strade (ANAS, a public body responsible for the award of motorway concessions in Italy) refused the application to authorise the merger between the intervener and Autostrade which the latter had submitted. According to the ANAS, the merger was subject to prior authorisation by the Government because it would give rise to a change of concession holder.

6 On 18 August 2006 Autostrade and the intervener notified the Commission of the proposed concentration in accordance with Regulation No 139/2004. By decision of 22 September 2006 the Commission found that the concentration had a Community dimension and that the transaction did not have the effect of significantly impeding effective competition in the common market or in a substantial part of it. The Commission therefore decided not to oppose the notified concentration and declared it compatible with the common market.

7 Although the Commission approved the concentration, Autostrade and the intervener suspended its implementation because of the refusal of ANAS to authorise it. They feared that, if the transaction were carried out without authorisation, the Italian authorities would withdraw the motorway concession in Italy, which was Autostrade's main activity.

8 On 29 September 2006 the Italian Government adopted Decreto-Legge No 262 (su) disposizioni urgenti in materia tributaria e finanziaria (Decree-Law No 262 'Urgent regulation on taxation and financial matters', GURI No 230, 3 October 2006, 'Decree-Law No 262') which, on 24 November 2006, was converted into law, after amendment, by Legge No 286 (Law No 286, Ordinary Supplement to GURI No 277, 28 November 2006).

9 Decree-Law No 262 brought in a single model agreement by providing that all motorway concession agreements concluded after it came into force would be drawn up in accordance with the same model and would follow the same principles. The single agreement would replace all existing motorway agreements on the first periodic revision after Decree-Law No 262 came into force and any existing agreement would be automatically revoked if the concession holder did not accept the new conditions.

10 By letter of 18 October 2006 the Commission, noting the abovementioned measures, informed the Italian authorities of its preliminary finding that the Italian Republic had violated Article 21 of Regulation No 139/2004 by creating an unjustified obstacle to the merger.

11 After receiving the Commission's preliminary assessment, the Italian authorities decided to annul the binding notice of 4 August 2006 issued jointly by the Italian Minister for Infrastructures and the Italian Minister for the Economy and Finance, as well as the ANAS decision of 5 August 2006.

12 On 14 November 2006 the Commission instituted infringement proceedings against Italy under Article 226 EC concerning a possible violation of Articles 43 and 56 EC in relation to the reform of the Italian system of motorway operation concessions and the proposed merger of Autostrade and the intervener.

13 On 13 December 2006 Autostrade and the intervener decided to refrain from completing the merger as it was impossible to do so by the deadline of 31 December 2006 laid down by the merger proposal which the shareholders of both companies had approved. Among the reasons for the decision, the press release issued by the two companies on 13 December 2006 mentioned, in addition to the entry into force of Decree-Law No 262, the difficulty of obtaining authorisation from the ANAS under the new rules.

14 On 31 January 2007 Commission sent the Italian authorities a further preliminary assessment under Article 21 of Regulation No 139/2004. It reached the preliminary conclusion that the fact that the Italian authorities had not determined sufficiently clearly in advance the public interest criteria used in applying the authorisation procedure and the fact that they had not adopted the authorisation decision requested by Autostrade and ASPI were measures within the meaning of Article 21 of Regulation No 139/2004 which had contributed to preventing de facto or to compromising seriously the completion of a concentration which had a Community dimension. The implementation of such measures without prior notification and without the Commission's consent constituted a violation by the Italian authorities of the obligation of communication and the obligation to take no action laid down by Article 21 of Regulation No 139/2004. The measures in question were incompatible with the principle of legal certainty and appeared, on the basis of the information available, to restrict without justification the free movement of capital and the freedom of establishment (Articles 43 and 56 EC). The Commission added that, if that preliminary assessment were confirmed, it could adopt a decision declaring that the Italian Republic had violated Article 21 of Regulation No 139/2004.

15 On 18 July 2007, after discussions with the Italian authorities, the Commission published a press release in which it stated that it approved of the proposed joint ministerial directive submitted by the Italian authorities which was intended to clarify the legal framework for authorisations to transfer motorway concessions in Italy. The Commission stated that, when the directive and its implementing provisions came into force, it could terminate the procedure which it had initiated against Italy pursuant to Article 21 of Regulation No 139/2004.

16 On 30 July 2007 the Italian Minister for Infrastructures, in consultation with the Italian Minister for the Economy and Finance, adopted the Direttiva (su) criteri di autorizzazione alle modificazioni del concessionario autostradale derivanti da concentrazione comunitaria (Directive on criteria for the authorisation of changes in the motorway concession-holder as a result of a Community concentration, GURI No 224, 26 September 2007). The implementing decree was adopted on 29 February 2008 (GURI No 52, 3 March 2008).

17 By letter of 19 March 2008, the applicant requested the Commission to conclude the procedure concerning the Italian Republic with regard to the concentration with a decision declaring that it had infringed Article 21 of Regulation No 139/2004.

18 On 22 May 2008 the Commission's Directorate-General (DG) for Competition informed the applicant of its intention to propose the adoption of a decision to take no further action in the procedure initiated under Article 21 of Regulation No 139/2004 and requested the applicant to submit its observations on that point. The applicant replied by letter of 5 June 2008.

19 On 13 August 2008 the Commission sent the Italian authorities the letter which is the subject of the present action.

20 In the letter the Commission informed the Italian authorities that it took a favourable view of the recent developments and stated in particular that it considered that the publication of the directive of 30 July 2007 and the adoption and publication of the implementing decree of 29 February 2008 ensured that the concerns expressed in its preliminary assessments adopted under Article 21 of Regulation No 139/2004 on 18 October 2006 and 31 January 2007 respectively would not arise in future. On that basis the Commission stated that it had decided to discontinue the procedure in the Abertis/Autostrade case under Article 21 of Regulation No 139/2004 concerning possible infringements identified in the course of the preliminary examination of 31 January 2007.

21 In the letter the Commission added that, although it considered that it was not appropriate to continue the procedure under Article 21 of Regulation No 139/2004, the regulatory framework of the authorisation procedure for the transfer of concessions should in any case fulfil the general requirements laid down by the internal market rules. The Commission pointed out that it reserved its position in that respect.

22 The Commission went on to observe that in any case it would continue to monitor any specific measure taken under the new regulatory framework applicable to any future concentrations with a Community dimension.

23 Finally, the Commission's letter made it clear that it was without prejudice to any other investigation, present or future, in particular, specific procedures initiated by the Directorate-General for the Internal Market or that for Energy and Transport.

24 By letters of 4 September 2008 the Commission informed the applicant and the intervener of its letter of 13 August 2008.

25 By letter of 15 October 2008 the applicant requested the Commission to send it a copy of the letter of 13 August 2008.

26 On 16 October 2008 the Commission also terminated the infringement proceedings it had instituted against Italy on 14 November 2006 under Article 226 EC, concerning the restrictions on the free movement of capital and the freedom of establishment in relation to the reform of the Italian system of motorway operation concessions and the proposed merger of Autostrade and the intervener.

27 By letter of 1 December 2008 the Commission sent the applicant a copy of its letter of 13 August 2008.

Procedure and forms of order sought by the parties

28 By application lodged at the Registry of the Court on 11 February 2009, the applicant brought the present action.

29 By separate document, lodged at the Registry of the Court on 4 May 2009, the Commission raised an objection of inadmissibility pursuant to Article 114(1) of the Rules of Procedure of the General Court.

30 By letter lodged at the Registry of the Court on 25 May 2009, the intervener sought leave to intervene in the present action in support of the form of order sought by the applicant. Leave was granted by order of the President of the Eighth Chamber of the Court of 23 July 2009.

31 The applicant lodged its observations on the objection of inadmissibility on 15 June 2009.

32 The intervener lodged its statement in intervention, limited to the question of the admissibility of the action, on 29 September 2009. By separate document lodged at the Registry of the Court on 23 November 2009, the applicant presented its observations on that statement. The Commission presented no observations.

33 In the application the applicant claims that the Court should:

- annul the decision or decisions in the Commission's letter of 13 August 2008 concerning the procedure initiated uner Article 21 of Regulation No 139/2004 in relation to the concentration between the intervener and Autostrade;

- order the Commission to pay the costs;

- order any other measure, including a preparatory inquiry, which it deems appropriate.

34 The Commission contends that the Court should:

- dismiss the application as manifestly inadmissible, without considering the merits of the case;

- alternatively, dismiss the action as inadmissible;

- order the applicant to pay the costs.

35 In its observations on the objection of inadmissibility, the applicant submits that the action is admissible and confirms the form of order sought in the application.

36 In its statement in intervention, the intervener submits that the action is admissible.

Law

37 By virtue of Article 114(1) and (4) of the Rules of Procedure, the Court may, if a party so requests, rule on the question of admissibility without considering the merits of the case. Under Article 114(3) of those rules, unless the Court otherwise decides, the remainder of the proceedings is to be oral. In the present case, the Court considers that the information in the documents before it is sufficient for there to be no need to proceed to the oral stage of the proceedings.

38 In support of its submissions, the Commission raises a plea of inadmissibility owing to the nature of the disputed act.

Arguments of the parties

39 The Commission claims that its letter of 13 August 2008 does not have the content attributed to it by the applicant.

40 The letter does not contain an express approval of the regulatory measures adopted by the Italian authorities in July 2007 and February 2008 nor an implied assessment as to the compatibility with Community law of the national measures which had been the subject of the procedure under Article 21 of Regulation No 139/2004. The letter refers only to the decision not to continue the procedure previously initiated under that article.

41 With regard to the nature and function of decisions adopted pursuant to the third paragraph of Article 21(4) of Regulation No 139/2004, the Commission submits that it may adopt a decision as to whether public interests protected by a Member State other than those expressly recognised as legitimate in the second subparagraph of Article 21(4) are compatible with the general principles and with other provisions of Community law, even without notification of those interests by the Member State concerned.

42 According to the Commission, Article 21 of Regulation No 139/2004 aims to safeguard the division between the powers of the national authorities and of the Community authorities. The legislature intended to confer upon the Commission sole jurisdiction to control concentrations with a Community dimension and to ensure that that could be done expeditiously.

43 That has two consequences. First, where a Member State adopts measures which are not justified for the purpose of the second subparagraph of Article 21(4) of Regulation No 139/2004, the decision which the Commission may adopt under the third subparagraph fulfils a function similar to that of a procedure pursuant to Article 226 EC. Second, that decision is an instrument particularly suited for meeting the specific requirements of speed inherent in the control of concentrations as it is intended to obtain a Community decision within the short time limits laid down by Regulation No 139/2004 and to avoid the risk that a decision of that kind may be adopted only after the national measures have finally jeopardised the concentration with a Community dimension.

44 The Commission asserts that its decision not to pursue a procedure under the third subparagraph of Article 21(4) of Regulation No 139/2004 is not a challengeable act.

45 On that point, the Commission observes that, according to settled case-law, an application for the annulment of a Commission decision not to bring infringement proceedings against a Member State is inadmissible. It is clear from the general scheme of Article 226 EC that the Commission is not bound to bring proceedings within the meaning of that provision, but it has a discretionary power precluding any right of individuals to require it to adopt a particular position or to bring an action for annulment against its refusal to take action.

46 The same principle has been upheld in relation to actions against the Commission's refusal to adopt a decision addressed to a Member State under Article 86(3) EC.

47 According to the Commission, as in the case of a refusal to institute or to continue infringement proceedings pursuant to Article 226 EC or to adopt a decision under Article 86(3) EC, a refusal to adopt a decision under the third subparagraph of Article 21(4) of Regulation No 139/2004 or, at least, to initiate or to continue the procedure, does not produce binding legal effects and cannot be the subject of an action for annulment brought by an individual.

48 The Commission's decision pursuant to the third subparagraph of Article 21(4) of Regulation No 139/2004 entails the exercise of a very broad discretion. It is for the Commission to determine whether, how and when it should initiate or continue the procedure in question, as in the similar situations of a presumed infringement of Community law by a Member State which may be the subject of infringement proceedings under Article 226 EC or a decision pursuant to Article 86(3) EC. That reasoning applies with stronger reason where no notification is given by the Member State.

49 The Commission submits that the situation at issue in the present case is not comparable with that of complaints concerning State aid. The case-law which establishes the Commission's obligation to adopt a decision addressed to the Member State following such a complaint and which allows the admissibility of actions for annulment brought by the complainants against those decisions is based on the decisive finding that the Commission has exclusive competence to decide that an aid is incompatible with the common market.

50 The Commission does not have exclusive competence to assess the compatibility of measures adopted by a Member State with Article 21 of Regulation No 139/2004 or with other rules of Community law. Article 21 of Regulation No 139/2004 is a provision of a regulation which, by virtue of the second paragraph of Article 249 EC, is binding in its entirety and directly applicable in all Member States. Any national court may apply it.

51 The Commission adds that the provisions that may be infringed by national measures, the compatibility of which the Commission may be called upon to verify by way of a decision under Article 21 of Regulation No 139/2004, have direct effect. They are provisions of the EC Treaty relating to fundamental freedoms, in particular Articles 43 and 56 EC.

52 Even if the Commission had not adopted a decision pursuant to the third subparagraph of Article 21(4) of Regulation No 139/2004, the individuals concerned could have brought an action before a national court for a finding that either Article 21 or the EC Treaty provisions relating to the free movement of capital and the freedom of establishment had been infringed. The Commission points out that this is where the fundamental difference lies between the procedure at issue in the present case and that applying to State aid. In the latter case, the national court plays only a subordinate part in the examination of compatibility reserved for the Commission.

53 It follows that judicial protection is guaranteed without the need to seek a decision by the Commission or to bring the matter before the Community Courts.

54 Finally, the Commission observes that the action is also inadmissible in particular because the companies concerned did not proceed with the merger. The Commission took the decision not to continue the procedure under Article 21(4) third subparagraph of Regulation No 139/2004 after the parties to the merger decided not to implement it.

55 The Commission is not required to adopt a decision where the merger which was to be the subject of the decision is abandoned and where, after the decision is adopted, it would no longer be possible for the Member State to comply with it. It must be conceded that the Commission has a discretion to discontinue the procedure, particularly where, as in the present case, the national regulatory framework has been changed in a positive way in the meantime.

56 The applicant replies that the Commission's letter of 13 August 2008 contains a 'complex decision' or even two separate decisions.

57 The first, which is formulated in express terms, consists in the Commission's approval of the regulatory measures relating to the authorisation procedures for the transfer of motorway concessions, introduced into the Italian legal system in July 2007 and February 2008. The second, which is implicit, concerns an assessment of the compatibility with Community law of the national measures which were the subject of the procedure initiated under Article 21 of Regulation No 139/2004.

58 The implicit decision is inferred from the termination of the procedure in question, of which Italy was informed by the letter of 13 August 2008. The termination of the procedure logically rules out the finding of an infringement of Community law which the Commission initially envisaged in its preliminary assessment of 31 January 2007 pursuant to Article 21 of Regulation No 139/2004. If, however, the Commission had considered that there was an infringement it ought to have formally found an infringement by a formal decision, instead of terminating the procedure. The applicant adds that, if the letter of 13 August 2008 does not contain the implicit decision, that would mean that the Commission had not yet taken a view regarding the infringement of Community law initially envisaged in the preliminary assessment, which would have rendered the express decision arbitrary and illogical.

59 According to the applicant, that assessment in the letter of 13 August 2008 is evident from a comparison of that letter with the preliminary assessments of 18 October 2006 and 31 January 2007. On those dates the Commission considered that the measures taken by Italy were illegal. Following the change in the Italian legal system in July 2007 and February 2008, those measures would no longer have been an obstacle to the termination of the procedure. The letter of 13 August 2008 is therefore the result of a fresh, and different, assessment of those measures.

60 The applicant adds that its interpretation of the letter of 13 August 2008 is confirmed by the Commission's observations in the letter of 16 March 2009 to the intervener (see also paragraphs 74 and 75 below).

61 The applicant observes that the infringement proceedings instituted on 14 November 2006 pursuant to Article 226 EC, concerning a possible infringement of Articles 43 and 56 EC, were terminated on 16 October 2008. That deprived of any legal effect whatever the reservation in the letter of 13 August 2008 concerning the compatibility with the rules of the internal market of the Italian regulatory framework relating to the authorisation procedure for the transfer of motorway concessions.

62 According to the applicant, the procedure initiated pursuant to Article 21(4) of Regulation No 139/2004 cannot be treated in entirely the same way as a procedure initiated under Article 226 EC. The Commission's powers in relation to verification pursuant to Article 21(4) of Regulation No 139/2004 are strictly tied to the assessment of a specific concentration with a Community dimension to which the disputed national measures relate. It follows that a decision must be adopted as soon as possible, so far as is consistent with the commercial interests of the parties to the transaction. Infringement proceedings under Article 226 EC cannot meet that requirement. Furthermore, the procedure under Article 21 of Regulation No 139/2004 leads to the adoption by the Commission of a decision which is legally binding on a Member State and against which the latter may bring an action for annulment, which cannot be done in the case of proceedings under Article 226 EC.

63 According to the applicant, the Commission has no power to determine whether to carry out an examination of national measures for blocking a transaction based on interests differing from those mentioned in the second subparagraph of Article 21(4) of Regulation No 139/2004, nor can the Commission decide on a suitable time for instituting proceedings. The Commission should act immediately, before any action becomes too late and futile because the parties abandon the merger, which they would be compelled to do by the obstacle imposed by the Member State concerned, notwithstanding the actual authorisation of the transaction by the Commission. Furthermore, logically the Commission has likewise no power not to continue to examine the matter once the procedure has been initiated pursuant to Article 21(4) of Regulation No 139/2004.

64 The applicant also draws attention to the differences between the procedure laid down by Article 21(4) of Regulation No 139/2004 and that provided for by Article 86(3) EC. The former, unlike the latter, is intended to safeguard the principle of the Commission's sole jurisdiction in relation to the control of concentrations with a Community dimension. In addition, the Commission's broad discretion under Article 86(3) EC must be coupled with its obligation under Article 86(2) EC to take account of the requirements inherent in the particular role of the undertakings concerned and of the fact that, in certain cases, the authorities of the Member States have a discretion which is just as wide to regulate certain matters which may form part of the sector of activity of those undertakings. That principle is not applicable to the Commission's powers under Article 21 of Regulation No 139/2004.

65 Contrary to the Commission's allegation, a decision to terminate an examination procedure under Article 21(4) of Regulation No 139/2004 has binding legal effects for the parties to the merger, particularly if it is authorised. As the Commission has sole jurisdiction to apply Article 21(4), such a decision has the binding legal effect of rendering 'final and irremovable', save by way of legal action, the obstacle to the completion of the transaction which gives rise to the national blocking measure. A Commission decision to terminate an examination procedure under Article 21(4) of Regulation No 139/2004 could be compared to a decision not to authorise a concentration which, after examination, is considered incompatible with the common market pursuant to Article 8(3) of that Regulation, the later decision manifestly being considered to have binding legal effects.

66 The applicant also claims that, by virtue of Article 21(2), the Commission has sole jurisdiction to determine the legitimacy of interests other than those expressly described as legitimate in the second subparagraph of Article 21(4) of Regulation No 139/2004 and to determine whether the measures which the Member State intends to adopt are compatible with Community law. Consequently, if the action were declared inadmissible, the applicant would lose the right to effective judicial protection. Furthermore, in the light of the obligation of notification and the obligation for the Member State concerned not to take any measures, as laid down in Article 21(4) of Regulation No 139/2004, the procedure closely resembles that for the control of State aid.

67 Contrary to the Commission's assertion, the national courts do not have concurrent competence with that of the Commission to apply Article 21(4) of Regulation No 139/2004. The Regulation is based on the principle of a strict division of powers between the national and the Community control authorities. The Commission alone is competent to take all decisions relating to concentrations with a Community dimension. Recital 17 of the preamble to Regulation No 139/2004 makes it clear that the regulation gives the Commission exclusive competence to apply it, subject to review by the Court of Justice.

68 On that point, the applicant adds that in practice it is not possible to apply a presumption that the national court has concurrent competence since there is no clearly applicable criterion of coordination.

69 The national court to which the parties put their case would have to decline jurisdiction since, according to Article 21(2) of Regulation No 139/2004, the Commission has sole jurisdiction to assess the compatibility of the interests mentioned in the third subparagraph of Article 21(4) of the Regulation and whether they are adequate, proportionate and non-discriminatory. It would not be possible for the applicant to obtain from a national court protection for its rights which are based on Community law and being damaged by national blocking measures, especially as the decision to terminate the procedure in the case is implicitly based on an assessment of the compatibility of the national measures which were the subject of the procedure initiated pursuant to Article 21 of Regulation No 139/2004. The question would then arise of why the national court should take a different approach to that already adopted by the Commission.

70 In order to avoid a refusal of judicial protection, the Court should apply to the present case the case-law to the effect that an individual who is directly and individually affected by a decision and has an interest in obtaining its annulment may apply to the Court for that purpose in the case of a Commission decision not to initiate the Article 88 EC procedure in relation to a Member State. The Commission's decision not to continue the procedure under Article 21(4) of Regulation No 139/2004 would then be a challengeable act.

71 With regard to the Commission's argument that the action is inadmissible because the merger decided upon by the Autostrade and the intervener on 13 December 2006 was abandoned, the applicant submits that, even if that argument were relevant, the fact that the Commission notified the Italian authorities of its second preliminary assessment on 31 January 2007 must be regarded as contrary to the principle of sound administration.

72 The applicant's genuine and present interest is also connected with its intention to sue the Italian Republic for infringing Community law by bringing a civil action in the national courts for damages for the loss incurred as a result of the forced abandonment of the merger.

73 The case-law relied upon by the Commission, to the effect that infringement proceedings must be considered redundant if the abandonment of a merger by the parties took place before the deadline for the 'withdrawal of the infringement' laid down by the Commission in a reasoned notice adopted pursuant to Article 226 EC, is not relevant in the present case. The Commission did not exercise the powers conferred on it by Article 226 EC.

74 The intervener supports the applicant's arguments. The intervener adds that the Commission informed it of the content of the letter of 13 August 2008 by letter of 4 September 2008. Since the letter of 4 September 2008 was unclear, the intervener sent the Commission a letter of 9 March 2009 requesting clarification, which was received on 16 March 2009.

75 The Commission's letter of 16 March 2009 confirms the applicant's interpretation that the Commission adopted an express decision to approve the regulatory measures adopted by the Italian authorities in July 2007 and February 2008. In the letter the Commission states that it decided not to continue the infringement procedure under Article 21 of Regulation No 139/2004 because it considered that the regulatory framework set up by the Italian authorities clarified the procedure for the transfer of motorway concessions and disposed of the doubts expressed by the Commission in the preliminary assessment sent to Italy on 31 January 2007.

76 In addition, according to the intervener, the Commission's interpretation of the letter of 13 August 2008 is not consistent with the wording of the third subparagraph of Article 21(4) of Regulation No 139/2004 because, by virtue of that same article, the Commission must examine the compatibility of the national measures with the general principles and other provisions of Community law before recognising the public interest in question.

77 With regard to the alleged analogy between, on the one hand, the procedures of Article 226 EC and Article 86(3) EC and, on the other, the procedure under Article 21 of Regulation No 139/2004, the intervener submits that the object and purpose of Article 21 of the Regulation differ from those of Article 226 EC and Article 86(3) EC.

78 In that connection the intervener observes that Article 21 of Regulation No 139/2004, which aims to safeguard the Commission's exclusive competence, must be interpreted in its context and in relation to the objectives of the Regulation. As the Regulation governs transactions between private persons, the Article 21 procedure cannot be separated from the rights and expectations of the parties concerned in the merger at issue, particularly where those rights have been infringed by State action which Article 21 of Regulation No 139/2004 aims to prevent. These considerations are inconsistent with the 'catch-all objective' of Article 226 EC, which does not concern transactions between private persons, and with the requirement to safeguard an exclusive competence.

79 Furthermore, according to the intervener, Article 21 of Regulation No 139/2004 is lex specialis in relation to Article 226 EC.

80 The intervener submits that the considerations precluding an analogy between Article 226 EC and Article 21 of Regulation No 139/2004 justify, mutatis mutandis, rejecting any analogy between the latter and Article 86(3) EC.

81 In addition, as the Commission has exclusive competence to take all decisions relating to concentrations with a Community dimension, the applicant would be deprived of the right to effective judicial protection if the action were inadmissible.

82 With regard to the analogy between the procedure under Article 21 of Regulation No 139/2004 and that provided for by Article 88 EC, the intervener adds that the Commission has power to declare that concentrations with a Community dimension are compatible with the common market, as well as to assess the compatibility of State aid with the rules of the common market. Furthermore, both procedures provide for obligations of prior notification and to refrain from acting, and they meet the need for rapidity. In addition, just as in the case of Article 88(3) EC, the last sentence of which has direct effect, a national court may, by virtue of Article 21 of Regulation No 139/2004, prevent the adoption of State measures encroaching upon the Commission's exclusive competence.

83 In any case, the national court cannot allow a claim for damages based on non-compliance with the obligation not to take action referred to in Article 21 of Regulation No 139/2004 if the claim is based on the blocking of the proposed merger. The national court would not be able to show the existence of a causal connection between the damage caused and non-compliance with the obligation not to take action. It is for the Commission to find that obligations laid down by Article 21 have not been fulfilled. The Commission would therefore have to give a ruling on non-compliance so that the national court could give a decision on damages. The Commission's decision not to continue the procedure under Article 21 deprived the applicant and the intervener of the right to compensation from the State, arising from a decision which could have been adopted only by the Commission under that same provision.

84 Moreover, according to the intervener, unlike the procedure under Article 88(3) EC, which enables the Member State concerned to recover the aid paid, the procedure under Article 21 of Regulation No 139/2004 does not enable the parties to the merger to restore the situation originally approved by the Commission once they have had to withdraw from the proposed transaction. Therefore it would be necessary for the Commission to adopt a compatibility decision under Article 21.

85 With regard to the Commission's argument concerning the abandonment of the merger in question, the intervener observes that the interests of the parties to the merger can be protected only if the Commission adopts a decision pursuant to Article 21 of Regulation No 139/2004. The Commission is the only institution competent to adopt such a decision. Furthermore, the Commission's interpretation would render the Article 21 procedure pointless in so far as, if the Commission is not required to make a decision once the procedure is initiated, any State wishing to block a merger could do so by adopting measures to prevent the implementation of a merger approved by the Commission.

Findings of the Court

86 According to settled case-law, any measure the legal effects of which are binding on, and capable of affecting the interests of, the applicant by bringing about a distinct change in his legal position is an act or decision which may be the subject of an action for annulment. In order to ascertain whether a contested measure produces such effects, it is necessary to look to the substance of the measure. The form in which acts or decisions are cast is, in principle, immaterial as regards the question whether they are open to challenge by an action for annulment (Case 60/81 IBM v Commission [1981] ECR 2639, paragraph 9, and order of 22 February 2008 in Case T-295/06 Base v Commission, not published in the ECR, paragraph 56, and cases cited).

87 The present action relates to the decision or decisions in the Commission's letter of 13 August 2008 informing the Italian Republic of its decision to discontinue the procedure initiated in the Abertis/Autostrade case pursuant to Article 21 of Regulation No 139/2004 concerning possible infringements identified in the course of the preliminary examination of 31 January 2007.

88 According to the applicant, the letter contains an express decision by the Commission approving the legislative measures relating to the authorisation procedures for the transfer of motorway concessions adopted by the Italian authorities, namely the directive of 30 July 2007 and the implementing decree of 29 February 2008 (see paragraph 16 above). The letter also contains an implicit decision assessing the compatibility with Community law of the Italian authorities' measures which were the subject of the procedure initiated pursuant to Article 21 of Regulation No 139/2004, namely the fact that the Italian authorities had not determined sufficiently clearly in advance the public interest criteria used in applying the authorisation procedure and the failure to adopt the authorisation decision requested by Autostrade and ASPI (see paragraph 14 above).

89 First of all, regarding the allegedly express decision concerning the Italian legislative measures, it must be observed that the wording of the letter of 13 August 2008 does not support the applicant's interpretation. In relation to the directive of 30 July 2007 and the implementing decree of 29 February 2008, the Commission stated that it took a favourable view of those measures and that it considered that they ensured that the concerns expressed in its preliminary assessments of 18 October 2006 and 31 January 2007 would not arise in the future. The Commission explained in the letter that, taking those considerations into account, it had decided to discontinue the procedure in the Abertis/Autostrade case pursuant to Article 21 of Regulation No 139/2004 concerning possible infringements identified in the course of the preliminary examination of 31 January 2007 (see paragraph 20 above). In that respect, therefore, the letter is of a strictly procedural nature. Furthermore, in the letter a distinction is clearly made between the Commission's assessment concerning the legislative measures at issue and its decision concerning the continuation of the procedure under Article 21 of Regulation No 139/2004.

90 It is clear from the structure of the letter that the considerations concerning the legislative measures at issue are intended only to explain and to state the reasons for the Commission's decision to discontinue the procedure under Article 21 of Regulation No 139/2004 in the Abertis/Autostrade case.

91 That interpretation is confirmed by the Commission's statement in the letter that, although it considered that it was not appropriate to continue the procedure under Article 21, the regulatory framework of the authorisation procedure for the transfer of concessions must in any case fulfil the general requirements laid down by the internal market rules. Accordingly the Commission pointed out that it reserved its position in that respect (see paragraph 21 above).

92 It must also be borne in mind that, by separate document of 14 November 2006, the Commission had instituted infringement proceedings against the Italian Republic under Article 226 EC concerning a possible violation of Articles 43 and 56 EC in relation to the reform of the Italian system of motorway operation concessions and the proposed merger of Autostrade and the intervener. Those proceedings had been terminated on 16 October 2008 (see paragraphs 12 and 26 above). Consequently, at the date of termination of the procedure under Article 21 of Regulation No 139/2004, the examination of the regulatory framework applying to the transfer of motorway concession had not been concluded.

93 With regard to the applicant's and the intervener's argument relating to the wording of the Commission's letter of 16 March 2009, it must be observed that the Commission enclosed with it the letter of 13 August 2008, allegedly containing an express decision. On that point it must be said, in view of the unambiguous terms of the letter of 13 August 2008 concerning the question whether the Commission adopted an express decision (see paragraphs 89 to 91 above), that argument cannot be accepted.

94 It follows that, contrary to what the applicant alleges, the letter of 13 August 2008 does not contain an express decision by the Commission approving the directive of 30 July 2007 and the implementing decree of 29 February 2008.

95 Secondly, with regard to the allegedly implicit decision concerning the Italian authorities' measures relating to the proposed merger, the applicant bases its argument essentially on a comparison of the letter of 13 August 2008 with the preliminary assessments of 18 October 2006 and 31 January 2007. The applicant asserts that, given that the Italian authorities' measures which were the subject of the preliminary assessments no longer constituted an obstacle to the termination of the procedure in question, the letter in question implicitly contains a fresh, and different, assessment of those measures.

96 There is no support for that interpretation in the wording of the letter of 13 August 2008.

97 It is true that, according to the preliminary assessments of 18 October 2006 and 31 January 2007, the Commission considered, regarding the concentration proposed between Autostrade and the intervener, that the Italian Republic had infringed Article 21 of Regulation No 139/2004 and that the measures taken by the Italian authorities were incompatible with the principle of legal certainty and appeared to restrict without justification the free movement of capital and the freedom of establishment (see paragraphs 10 and 14 above).

98 However, it is apparent from the letter of 13 August 2008 that the decision to terminate the procedure under Article 21(4) of Regulation No 139/2004 was taken in view of the legislative changes in Italy after the Commission's adoption of the preliminary assessment of 31 January 2007. That reason for terminating the procedure in question is also apparent from the press release of 18 July 2007, in which the Commission stated that it approved of the joint ministerial directive proposed by the Italian authorities which was intended to clarify the legal framework for authorisations to transfer motorway concessions in Italy. The Commission stated that, when the directive and its implementing provisions came into force, it would be able to terminate the procedure which it had initiated against the Italian Republic pursuant to Article 21 of Regulation No 139/2004 (see paragraph 15 above). Consequently the procedure was closed independently of the Commission's assessment of the compatibility with Community law of the Italian authorities' measures which were the subject of that procedure.

99 In addition, it is clear from the Commission's preliminary assessment of 31 January 2007 that it considered that it had a discretion with regard to the continuation of a procedure initiated pursuant to Article 21(4) of Regulation No 139/2004. After finding in that assessment that the Italian Republic had infringed Article 21(4) and that the measures taken by the Italian authorities were incompatible with Community law, the Commission stated that, if its preliminary assessment were confirmed, it could adopt a decision declaring that the Italian Republic had infringed Article 21 of that regulation (see paragraph 14 above). Therefore the Commission considered that it had an option, but not an obligation, to adopt such a decision. The Italian Republic, as the recipient of the letter of 13 August 2008, should therefore have realised that the Commission merely wished to exercise its stated discretion to discontinue the procedure initiated pursuant to Article 21(4) of Regulation No 139/2004.

100 The applicant was also informed of the fact that the Commission considered that it had a discretion in that respect. In the letter of 22 May 2008 to the applicant (see paragraph 18 above), the Commission informed it of its intention to terminate the procedure initiated under Article 21 of Regulation No 139/2004. In that connection it added that it had a discretion to initiate and to continue such a procedure and that it could decide not to do so if, in its opinion, the benefit deriving from cooperation on the part of the national authorities counterbalanced the need to sanction any past failures in respect of their obligations.

101 Consequently the Commission's decision to terminate the procedure initiated under Article 21 of Regulation No 139/2004 did not imply the adoption of a new assessment of the national measures at issue.

102 With regard to the applicant's and the intervener's argument that the letter of 13 August 2008 must contain the allegedly implicit decision because of the wording of Article 21(4) of Regulation No 139/2004, it must be observed that this does not take into account the discretion referred to by the Commission (see paragraphs 99 and 100 above). Instead of taking a decision concerning the compatibility of the national measures in question with the general principles and other provisions of Community law, the Commission expressly stated in that letter that it had decided not to continue the procedure pursuant to Article 21(4) of Regulation No 139/2004. That decision was based on the discretion which the Commission stated it had in that respect. Contrary to the allegation of the applicant and the intervener, such a decision is not equivalent to a decision on the compatibility of the Italian authorities' measures relating to the proposed merger.

103 Consequently the letter of 13 August 2008 does not contain the implicit decision alleged by the applicant.

104 In the decision, therefore, the Commission only states its decision to discontinue the procedure in the Abertis/Autostrade case which was initiated pursuant to Article 21 of Regulation No 139/2004 in relation to possible infringements identified in the preliminary assessment of 31 January 2007.

105 Therefore is it necessary to ascertain whether that measure constitutes a challengeable act within the meaning of the case-law cited in paragraph 86 above.

106 The measure in question concerns a procedure initiated pursuant to Article 21(4) of Regulation No 139/2004.

107 In that connection it must be observed, first, that Article 21 of Regulation No 139/2004 relates to the application of that regulation and the division of powers between the Commission and the Member States. Concentrations not covered by the regulation come in principle within the jurisdiction of the Member States. Conversely, the Commission has sole jurisdiction to take all the decisions relating to concentrations with a Community dimension (see, to that effect, and by analogy, Case C-170/02 P Schlüsselverlag J.S. Moser and Others v Commission [2003] ECR I-9889, paragraph 32, and Case C-42/01 Portugal v Commission [2004] ECR I-6079, paragraph 50).

108 It is clear from the first subparagraph of Article 21(4) of Regulation No 139/2004 that the sole jurisdiction of the Commission, as laid down in Article 21(2), concerns the protection only of the interests to which the regulation refers, namely interests relating to the protection of competition. In relation to those interests, the Commission has power to take a decision declaring a concentration compatible with the common market pursuant to Article 8(1) to (3) of Regulation No 139/2004.

109 On the other hand, that exclusive competence of the Commission does not prevent the Member States from taking appropriate measures to protect legitimate interests other than those pursued by Regulation No 139/2004, as stated by recital 19 of the preamble to the regulation. However, in that respect the Commission has, under the third subparagraph of Article 21(4) of Regulation No 139/2004, power to monitor compliance by the Member State with the general principles and other provisions of Community law in order to ensure that its decision under Article 8 of the regulation is effective.

110 Secondly, it must be observed that Regulation No 139/2004 concerns only the monitoring of actual concentrations between undertakings. Under the first subparagraph of Article 4(1) of the regulation, concentrations with a Community dimension defined in the regulation must be notified to the Commission prior to their implementation and following the conclusion of the agreement, the announcement of the public bid, or the acquisition of a controlling interest. In addition, under Article 8(1) to (3) of the regulation, the Commission has power to take a decision relating to the notified concentration, declaring it compatible or incompatible with the common market.

111 It follows that the procedure laid down in Article 21(4) of Regulation No 139/2004 relates to the monitoring of actual concentrations by the Commission under the regulation. With regard to interests relating to the protection of competition, referred to by the regulation, the Commission has exclusive competence to take a decision declaring a concentration compatible or incompatible with the common market under Article 8 of the regulation. With regard to legitimate interests other than those taken into account by the regulation, their monitoring by the Commission, provided for in the third subparagraph of Article 21(4) of the regulation, ensures the effectiveness of the Commission's decision taken under Article 8.

112 Where a Member State gives notice of a public interest, other than those taken into consideration in Regulation No 139/2004, which it wishes to protect, the Commission initiates the procedure provided for in the third subparagraph of Article 21(4). The Commission must then examine the compatibility of that interest with the general principles and other provisions of Community law before notifying the Member State concerned of its decision within 25 working days of such notification, avoiding so far as possible the risk that its decision is taken only after national measures have already irretrievably prejudiced the proposed concentration (see, by analogy, Portugal v Commission, cited at paragraph 107 above, paragraph 55). In such a case the Commission must therefore, in order to ensure that its decision under Article 8 of Regulation No 139/2004 is effective, adopt a decision addressed to the Member State concerned, consisting either in the recognition of the interest at issue in view of its compatibility with the general principles and other provisions of Community law or in the non-recognition of the interest by reason of its incompatibility with those principles and provisions.

113 The same considerations arise where, as in the present case, the procedure under Article 21(4) was not initiated by a communication from the Member State, but by the Commission on its own initiative, as the Court of Justice found in Portugal v Commission, cited at paragraph 107 above (paragraph 60), since the nature of the procedure was not otherwise changed.

114 In the present case it must be observed that the proposed merger between Autostrade and the intervener was abandoned on 13 December 2006. Their decision not to proceed with the proposal was published by them in a press release of the same date (see paragraph 13 above).

115 On that point it must be observed, first, that, as shown in paragraphs 107 to 111 above, the procedure under Article 21(4) of Regulation No 139/2004 refers to the monitoring of specific concentration transactions by the Commission. The monitoring by the Commission of the interests referred to in the third subparagraph of Article 21(4) aims to ensure that the Commission's decisions under Article 8 of the same regulation are effective.

116 Secondly, the Commission's competence to adopt a decision under Article 8 of Regulation No 139/2004 depends, as made clear by the first subparagraph of Article 4(1) of the regulation, on 'the conclusion of the [merger] agreement'. In the same way as the Commission does not have the power to adopt a decision pursuant to Regulation No 139/2004 before such an agreement has been concluded, it ceases to have that power as soon as the agreement comes to be terminated, even if the undertakings concerned continue negotiations with a view to concluding an agreement 'in a modified form' (see, by analogy, Case T-310/00 MCI v Commission [2004] ECR II-3253, paragraph 89).

117 Consequently, as the proposed merger was abandoned by Autostrade and the intervener on 13 December 2006 and as the scrutiny of the interests referred to in Article 21(4) of Regulation No 139/2004 aims to ensure the effectiveness of Commission decisions under Article 8 of Regulation No 139/2004, the Commission was no longer competent to terminate the procedure pursuant to Article 21(4) by a decision relating to the recognition of a public interest protected by the national measures at issue.

118 That conclusion is not called into question by the fact that the procedure under Article 21(4) has not only an objective function, but also a subjective function, namely to protect the interests of the undertakings concerned relating to the proposed merger from the viewpoint of ensuring the legal certainty and the speed of that procedure. On that point it must be observed that, because the proposed merger was abandoned by the undertakings concerned, the subjective function had ceased to be relevant. As the proposed merger had been abandoned, it was no longer necessary to protect the interests of the undertakings concerned in relation to it.

119 Also by reason of the abandonment of the proposed merger the Commission's termination of the procedure in question cannot be equivalent to a Commission decision declaring a concentration incompatible with the common market by virtue of Article 8(3) of Regulation No 139/2004, which concerns only cases where the proposed merger is not abandoned by the undertakings concerned (see paragraph 116 above).

120 It must therefore be concluded that the Commission was no longer competent to terminate the procedure initiated pursuant to Article 21(4) of Regulation No 139/2004 by a decision relating to the recognition of a public interest protected by the national measures at issue. In that respect, it must be observed that there is nothing to indicate that in the present case the Commission took a decision exceeding its powers. The decision of 13 August 2008 therefore produced no binding legal effects capable of affecting the applicant's interests by bringing about a distinct change in its legal position. The Commission could only take the formal decision to take no further action in the procedure. The decision of 13 August 2008 to discontinue the procedure had no other effect and therefore it cannot constitute a challengeable act.

121 The applicant's argument that there is at least still some point in the action for annulment as a basis for a possible action for damages against Italy cannot make up for the fact that, as the proposed merger was abandoned on 13 December 2006, the decision of 13 August 2008 has no binding legal effect for the applicant.

122 That conclusion is borne out by the fact that, after the proposed merger was abandoned, the procedure actually initiated by the Commission under Article 21(4) of Regulation No 139/2004 acquired the character of an infringement action against Italy.

123 The Commission's findings from its preliminary assessment of 31 January 2007 begin by describing the measures taken by the Italian authorities within the meaning of Article 21 of Regulation No 139/2004 before finding that, by implementing those measures, Italy infringed Article 21(4) of the regulation and that they were incompatible with the common market. The Commission then stated that, if its preliminary assessment were confirmed, it could adopt a decision declaring that Italy had infringed Article 21.

124 By continuing the Article 21(4) procedure after the abandonment of the proposed merger, the Commission therefore no longer envisaged taking a decision on the recognition of a public interest protected by the national measures in question, but rather a decision declaring that Italy had infringed Article 21. In doing so, therefore, the Commission in effect left the framework of the Article 21(4) procedure by continuing it as an infringement action such as that provided for by Article 226 EC or Article 86(3) EC.

125 The Commission has a discretion to bring an action for failure to fulfil Treaty obligations under Article 226 EC (Case 247/87 Star Fruit v Commission [1989] ECR 291, paragraph 11; Case C-87/89 Sonito and Others v Commission [1990] ECR I-1981, paragraph 6; order of 10 July 2007, Case C-461/06 P AEPI v Commission, not published in the ECR, paragraph 24) and under Article 86(3) EC (Case C-141/02 P Commission v max-mobil [2005] ECR I-1283, paragraph 69).

126 Consequently, the decision contained in the letter of 13 August 2008 does not constitute a challengeable act by reason also of the fact that, after the proposed merger was abandoned, the procedure actually initiated by the Commission under Article 21(4) of Regulation No 139/2004 acquired the character of an infringement action.

127 The finding that the Commission's decision of 13 August 2008 to discontinue the examination of the Abertis/Autostrade case under Article 21(4) of Regulation No 139/2004 does not constitute a challengeable act is not affected by the other arguments of the applicant and the intervener.

128 Regarding the applicant's argument that the Commission disregarded the principle of sound administration on the ground that it adopted its preliminary assessment of 31 January 2007, after the proposed merger was abandoned on 13 December 2006, it must be observed that, even assuming that the adoption of the assessment constituted a breach of the principle of sound administration, it could not have the effect either of conferring upon the Commission competence to take a decision on the recognition of a public interest protected by the national measures in question, or of making the decision to discontinue the Article 21(4) procedure a challengeable act.

129 With regard to the argument of the applicant and the intervener that, if the action is inadmissible, the applicant would be deprived of the right to effective judicial protection, it must be observed that the provisions which may be infringed by the national measures in question, namely Articles 43 EC and 56 EC, have direct effect and individuals may bring an action on the ground of their infringement before a national court.

130 Finally, the applicant and the intervener rely on the case-law which states that an action brought by a competitor of a recipient of State aid, seeking a declaration that the Commission failed to make a decision in the preliminary investigation procedure relating to State aid under Article 88(3) EC, is admissible (Case T-95/96 Gestevisión Telecinco v Commission [1998] ECR II-3407, paragraphs 49 to 70).

131 In that connection it must be noted that, whereas in the present case the proposed merger was abandoned by the undertakings concerned, the grants in question in Gestevisión Telecinco v Commission, paragraph 130 above, had not been recovered.

132 Furthermore, whereas the Commission has exclusive jurisdiction to determine whether State aid is incompatible with the common market (see Gestevisión Telecinco v Commission, paragraph 130 above, paragraph 54), in the present case the national court may give a ruling on the compatibility of the national measures in question with Articles 43 EC and 56 EC, so that the applicant is not deprived of the right to effective judicial protection (see paragraph 129 above).

133 In view of those differences, the case-law cited at paragraph 130 above cannot be applied to the present case.

134 Consequently it must be found that the Commission's decision to discontinue the procedure initiated in the Abertis/Autostrade case pursuant to Article 21(4) of Regulation No 139/2004 does not constitute a challengeable act which can be the subject of an action for annulment.

135 Therefore the action must be dismissed as inadmissible.

Costs

136 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission.

137 Under Article 87(4) of the Rules of Procedure, the Court may order an intervener to bear his own costs. In the present case the intervener will bear its own costs.

On those grounds,

THE GENERAL COURT (Eighth Chamber)

hereby:

1. Dismisses the application as inadmissible;

2. Orders Schemaventotto SpA to bear its own costs and those of the European Commission;

3. Orders Abertis Infraestructuras, SA to bear its own costs.