# C_2020247EN.01003801.xml

| 27.7.2020 | EN | Official Journal of the European Union | C 247/38 |
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27.7.2020

EN

Official Journal of the European Union

C 247/38

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Action brought on 27 May 2020 — Mainova v Commission

(Case T-320/20)

(2020/C 247/52)

Language of the case: German

Parties

Applicant: Mainova AG (Frankfurt am Main, Germany) (represented by: C. Schalast, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | annul the defendant's decision of 26 February 2019 (Case M.8871); |
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annul the defendant's decision of 26 February 2019 (Case M.8871);

| — | join the proceedings within the meaning of Article 68(5) of the Rules of Procedure of the Court with actions concerning the same order M.8871, which, because of the substantive connections, are cumulative and form a single decision terminating the proceedings; |
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join the proceedings within the meaning of Article 68(5) of the Rules of Procedure of the Court with actions concerning the same order M.8871, which, because of the substantive connections, are cumulative and form a single decision terminating the proceedings;

| — | order the defendant to pay the costs. |
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order the defendant to pay the costs.

Pleas in law and main arguments

In support of the action, the applicant relies on two pleas in law.

| 1. | First plea in law, alleging a breach of essential procedural requirements
  The first plea alleges that the defendant infringed essential procedural requirements in the contested decision. These included all procedural rules which had to be observed when the legal act in question was concluded. In particular, the defendant infringed general principles of Union law by frustrating the applicant's participation rights. In particular, the defendant infringed the applicant's right to legal protection and unlawfully denied it any access to the procedural documents. |
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1.

First plea in law, alleging a breach of essential procedural requirements

The first plea alleges that the defendant infringed essential procedural requirements in the contested decision. These included all procedural rules which had to be observed when the legal act in question was concluded. In particular, the defendant infringed general principles of Union law by frustrating the applicant's participation rights. In particular, the defendant infringed the applicant's right to legal protection and unlawfully denied it any access to the procedural documents.

| 2. | Second plea in law, alleging an infringement of the provisions of Council Regulation (EC) No 139/2004 (1)

  The second plea alleges that, by artificially separating the proposed concentration, the defendant infringed the Treaties of the European Union and the provisions of the Merger Regulation. In particular, it disregarded procedural rules relating to mergers and thereby failed to take account, or did not take account correctly, of circumstances relevant to the decision. These included in particular the failure to take into account the legal, economic and factual link between the entire merger project, the incorrect classification of the transaction as an asset swap, the failure to take into account the competitive effects of the consideration of RWE AG’s 16,67 % share in E.ON SE and the incorrect assessment of the competitive effects of the transaction;
  In particular, the defendant failed to properly define the market. In addition, the defendant had based its assessment of the effects of the transaction on an incorrect scope of assessment and had incorrectly assessed RWE’s incentives created by the transaction to deliberately withhold generation capacities. In this respect, the defendant came to the incorrect conclusion that the merger could be examined separately and that it had no adverse effects on Community-wide competition. |
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2.

Second plea in law, alleging an infringement of the provisions of Council Regulation (EC) No 139/2004 (1)

The second plea alleges that, by artificially separating the proposed concentration, the defendant infringed the Treaties of the European Union and the provisions of the Merger Regulation. In particular, it disregarded procedural rules relating to mergers and thereby failed to take account, or did not take account correctly, of circumstances relevant to the decision. These included in particular the failure to take into account the legal, economic and factual link between the entire merger project, the incorrect classification of the transaction as an asset swap, the failure to take into account the competitive effects of the consideration of RWE AG’s 16,67 % share in E.ON SE and the incorrect assessment of the competitive effects of the transaction;

In particular, the defendant failed to properly define the market. In addition, the defendant had based its assessment of the effects of the transaction on an incorrect scope of assessment and had incorrectly assessed RWE’s incentives created by the transaction to deliberately withhold generation capacities. In this respect, the defendant came to the incorrect conclusion that the merger could be examined separately and that it had no adverse effects on Community-wide competition.

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(1)  Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (OJ 2004 L 24, p. 1).

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