GC, 8th chamber, November 27, 2017, No T-902/16

THE GENERAL COURT (Eighth Chamber),

1 The applicant, HeidelbergCement AG, and Schwenk Zement KG ('Schwenk') are companies active in the production of building materials, in particular in the area of cement. They jointly control the full-function joint venture Duna-Dráva Cement Kft. ('DDC').

2 During 2015, Cemex SAB de CV initiated a process for the sale of various subsidiaries, including Cemex Hrvatska d.d. (Cemex Croatia) and Cemex Hungária Építoanyagok Kft. (Cemex Hungary), which DDC acquired through various share purchase agreements.

3 On 5 September 2016, the applicant and Schwenk notified that concentration to the European Commission.

4 On 10 October 2016, the Commission adopted Decision C(2016) 6591 final, pursuant to Article 6(1)(c) of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (OJ 2004 L 24, p. 1) ('the contested decision'). By that decision, the Commission initiated the procedure aimed at assessing the compatibility with the internal market of the notified concentration. In the words of that decision, the Commission characterized the applicant and Schwenk as 'undertakings concerned' in so far as those two companies were 'the real drivers behind the operation' as they were 'involved significantly in the initiation, organization and financing of the transaction of the operation'. DDC constituted 'a mere vehicle for an acquisition by the parent companies. The Commission therefore found that the notified concentration had a Community dimension within the meaning of Article 1 of Regulation No 139/2004 ('the Community dimension').

Procedure and forms of order sought

5 By application lodged at the Court Registry on 21 December 2016, the applicant brought the present action.

6 By separate document lodged at the Court Registry on 2 March 2017, the Commission raised an objection of inadmissibility under Article 130(1) of the Rules of Procedure of the General Court.

7 The applicant submitted its observations on the objection of inadmissibility by document lodged at the Court Registry on 13 April 2017.

8 The applicant claims that the Court should:

- dismiss the objection of inadmissibility;

- annul the contested decision;

- order the Commission to pay the costs.

9 The Commission contends that the Court should:

- dismiss the action as inadmissible;

- order the applicant to pay the costs.

Law

10 Under Article 130(1) and (7) of its Rules of Procedure, the Court may rule on inadmissibility or lack of competence without going to the substance of the case, if the defendant so requests. In the present case, as the Commission has applied for a decision on inadmissibility, the Court, finding that it has sufficient information from the documents in the case file, has decided to rule on that application without taking further steps in the proceedings.

11 In support of the objection of inadmissibility, the Commission contends, first, that the contested decision is incapable of being the subject of an action for annulment and, second, that the applicant does not have a legal interest in bringing proceedings.

12 The applicant claims that the objection of inadmissibility should be dismissed as unfounded.

13 The applicant claims, in essence, that the contested decision is a challengeable act in so far as it is at the end of the preliminary examination phase of the review procedure ('Phase I') that the Commission reaches a final position on its jurisdiction or the Community dimension of the notified concentration.

14 As a preliminary point, it should be borne in mind that, according to settled case-law, a natural or legal person may challenge, pursuant to the fourth paragraph of Article 263 TFEU, only measures the legal effects of which are binding on, and capable of affecting the interests of, that person by bringing about a distinct change in his legal position (judgment of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 9; orders of 30 April 2003, Schmitz-Gotha Fahrzeugwerke v Commission, T-167/01, EU:T:2003:121, paragraph 46, and of 31 January 2006, Schneider Electric v Commission, T-48/03, EU:T:2006:34, paragraph 44).

15 In the case of acts adopted by a procedure involving several stages of an internal procedure, in principle an act is open to review only if it is a measure which definitively lays down the position of the institution on the conclusion of that procedure, and not a provisional measure intended to pave the way for the final decision (judgments of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 10; of 27 June 1995, Guérin automobiles v Commission, T-186/94, EU:T:1995:114, paragraph 39) and whose legal defects could reasonably be raised in an action against it (order of 31 January 2006, Schneider Electric v Commission, T-48/03, EU:T:2006:34, paragraph 45).

16 It would be otherwise only if acts or decisions adopted in the course of the preparatory proceedings were themselves the culmination of a special procedure distinct from that intended to permit the institution to take a decision on the substance of the case (judgment of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 11, and order of 9 June 2004, Camós Grau v Commission, T-96/03, EU:T:2004:172, paragraph 30).

17 Moreover, an intermediate measure is incapable of forming the subject matter of an action if it is established that the illegality attaching to that measure can be relied on in support of an action against the final decision for which it represents a preparatory step. In such circumstances, the action brought against the decision terminating the procedure provides sufficient judicial protection (judgment of 13 October 2011, Deutsche Post and Germany v Commission, C-463/10 P and C-475/10 P, EU:C:2011:656, paragraph 53; see also, to that effect, judgments of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 12, and of 24 June 1986, AKZO Chemie and AKZO Chemie UK v Commission, 53/85, EU:C:1986:256, paragraph 19).

18 It should be borne in mind in that regard that the procedure for control of concentrations between undertakings, as conceived in Regulation No 139/2004, consists of two phases. Phase I of the procedure ends with a decision adopted on the basis of points (a), (b) or (c) respectively of Article 6(1) of Regulation No 139/2004, depending on the conclusions which the Commission has reached at the end of that phase. It is only if the Commission finds that the concentration which has been notified is covered by that regulation and raises serious doubts as to its compatibility with the internal market that the Commission initiates the in-depth phase of the procedure ('Phase II'), which, pursuant to the second sentence of Article 6(1)(c) of Regulation No 139/2004, 'shall be closed by means of a decision as provided for in Article 8(1) to (4), unless the undertakings concerned have demonstrated to the satisfaction of the Commission that they have abandoned the concentration' (judgment of 7 May 2009, NVV and Others v Commission, T-151/05, EU:T:2009:144, paragraph 66).

19 Article 6(1)(c) of Regulation No 139/2004 does not confer on the Commission any discretion as regards the initiation of Phase II where it encounters serious doubts with respect to the compatibility of a concentration with the internal market. Indeed, where the Commission has serious doubts as to the compatibility with the internal market of a concentration, it is obliged to initiate Phase II (judgment of 11 December 2013, Cisco Systems and Messagenet v Commission, T-79/12, EU:T:2013:635, paragraph 49).

20 According to Article 8(1) to (3) of Regulation No 139/2004, the Commission has power to take a decision relating to the notified concentration, declaring it compatible or incompatible with the common market (order of 2 September 2010, Schemaventotto v Commission, T-58/09, EU:T:2010:342, paragraph 110). A compatibility decision may be accompanied by conditions and obligations (Article 8(2) of Regulation No 139/2004) or may not be (Article 8(1) of Regulation No 139/2004). Under Article 8(4) of Regulation No 139/2004, the Commission also has power to take a decision requiring the dissolution of the concentration.

21 It is thus apparent from Article 6 of Regulation No 139/2004, read in conjunction with Article 8 thereof, that a decision adopted on the basis of Article 6(1)(c) of Regulation No 139/2004 does not constitute the culmination of the review procedure in so far as such a decision entails the adoption of a decision under Article 8(1) to (4) of that regulation, except where the undertakings concerned have abandoned the concentration (Article 6(1)(c) of Regulation No 139/2004). Moreover, such a decision does not prejudge the final decision, since the Commission is able to find, under Article 8 of that regulation, whether the concentration is compatible or incompatible.

22 Accordingly, a decision adopted on the basis of Article 6(1)(c) of Regulation No 139/2004 appears to be a preparatory step whose sole aim is to initiate enquiries intended to identify the matters which will allow the Commission 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 (see, to that effect, order of 31 January 2006, Schneider Electric v Commission, T-48/03, EU:T:2006:34, paragraph 79, and judgment of 13 September 2010, Éditions Odile Jacob v Commission, T-279/04, not published, EU:T:2010:384, paragraph 89).

23 It must also be stated that an action against the final decision of the review procedure, adopted on the basis of Article 8 of Regulation No 139/2004, at the end of Phase II, is capable of ensuring effective judicial protection.

24 The parties which have notified a concentration are entitled to bring an action against the decision closing the review procedure, be that a decision declaring a concentration incompatible with the internal market, adopted on the basis of Article 8(3) of Regulation No 139/2004, as was the situation in the cases leading to the judgments of 6 June 2002, Airtours v Commission (T-342/99, EU:T:2002:146), and of 9 March 2015, Deutsche Börse v Commission (T-175/12, not published, EU:T:2015:148), a decision requiring the dissolution of the concentration, adopted on the basis of Article 8(4) of Regulation No 139/2004, as was the situation in the case which led to the judgment of 22 October 2002, Schneider Electric v Commission (T-77/02, EU:T:2002:255), or a decision declaring a concentration compatible with the internal market to which obligations are attached, adopted on the basis of Article 8(2) of Regulation No 139/2004, as was the situation in the case which led to the judgment of 18 December 2007, Cementbouw Handel & Industrie v Commission (C-202/06 P, EU:C:2007:814). In addition, it cannot be ruled out that a decision declaring a concentration compatible, on the basis of Article 8(1) of Regulation No 139/2004, is also an act challengeable by the parties which notified the concentration. In order to determine whether an act is challengeable under Article 263 TFEU, it is necessary to look to its substance. Accordingly, the mere fact that a decision declares a notified operation compatible with the internal market, which thus in principle does not have an adverse effect on the parties which notified the concentration, does not dispense the Court from examining whether the contested findings have binding legal effects such as to affect the parties' interests (judgment of 22 March 2000, Coca-Cola v Commission, T-125/97 and T-127/97, EU:T:2000:84, paragraphs 77 to 79).

25 It follows from the foregoing that a decision to initiate Phase II, adopted on the basis of Article 6(1)(c) of Regulation No 139/2004, is a preparatory step whose legal defects may be relied upon in support of an action against the final decision.

26 Accordingly, and contrary to the applicant's arguments that the contested decision presupposes a final assessment by its author on its jurisdiction or on the Community dimension of the notified concentration, the contested decision is not a challengeable act for the purposes of Article 263 TFEU.

27 That conclusion is not called into question by the applicant's other arguments.

28 First, the applicant cannot derive any useful argument from the judgment of 18 December 2007, Cementbouw Handel & Industrie v Commission (C-202/06 P, EU:C:2007:814), or from the Opinion of Advocate General Kokott in Cementbouw Handel & Industrie v Commission (C-202/06 P, EU:C:2007:255) in order to demonstrate the challengeable nature of the contested decision.

29 Although paragraph 43 of the judgment of 18 December 2007, Cementbouw Handel & Industrie v Commission (C-202/06 P, EU:C:2007:814), cited in paragraph 28 above, states that the competence of the Commission to make findings in relation to a concentration must be established, as regards the whole of the proceedings, at a time which must necessarily be closely related to the notification of that concentration, that is not in order to provide a basis for the admissibility of an action for annulment of a decision initiating Phase II adopted on the basis of Article 6(1)(c) of Regulation No 139/2004, but solely to resolve the question whether the Commission was competent to adopt, on the basis of Article 8 of Regulation No 139/2004, the contested decision which closed the review procedure.

30 Second and in view of paragraph 29 above, the applicant cannot dispute the relevance, in the present case, of the order of 31 January 2006, Schneider Electric v Commission (T-48/03, EU:T:2006:34), and, in particular, of paragraph 79 thereof (see paragraph 22 above) which the Commission relies on in support of the objection of inadmissibility. In that regard, the applicant cannot, in particular, find any support in the fact that that order predates the judgment of 18 December 2007, Cementbouw Handel & Industrie v Commission (C-202/06 P, EU:C:2007:814).

31 Third, nor can the applicant dispute the relevance, in the present case, of the judgment of 13 September 2010, Éditions Odile Jacob v Commission (T-279/04, not published, EU:T:2010:384), and, in particular, of paragraph 89 thereof (see paragraph 22 above) which the Commission relies on in support of the objection of inadmissibility.

32 The applicant cannot, inter alia, find any support in the fact that the contested act was, in the case which led to the judgment of 13 September 2010, Éditions Odile Jacob v Commission (T-279/04, not published, EU:T:2010:384), a decision adopted, at the end of Phase II, on the basis of Article 8(2) of Regulation No 139/2004, and that the plea raised was different. Those circumstances are insufficient to preclude the relevance of the approach set out in paragraph 89 of that judgment and which relates to decisions adopted on the basis of Article 6(1)(c) of that regulation.

33 In the light of the foregoing, the action must be dismissed as inadmissible in its entirety, without it being necessary to deal with the issue whether the applicant may claim a legal interest in bringing proceedings.

Costs

34 Under Article 134(1) 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.

On those grounds,

THE GENERAL COURT (Eighth Chamber)

hereby:

1. Dismisses the action as inadmissible;

2. Orders HeidelbergCement AG to bear its own costs and to pay those incurred by the European Commission.