# C_2021138EN.01004101.xml

| 19.4.2021 | EN | Official Journal of the European Union | C 138/41 |
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19.4.2021

EN

Official Journal of the European Union

C 138/41

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Action brought on 29 January 2021 — Stadtwerke Frankfurt am Main v Commission

(Case T-63/21)

(2021/C 138/55)

Language of the case: German

Parties

Applicant: Stadtwerke Frankfurt am Main Holding GmbH (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 17 September 2019 (Case M.8870); |
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Annul the defendant’s decision of 17 September 2019 (Case M.8870);

| — | join the proceedings within the meaning of Article 68(5) of the Rules of Procedure of the General Court with the actions concerning the same decision M.8870, which, on account of the substantive connection between them, are cumulative and form a single decision closing the proceedings; |
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join the proceedings within the meaning of Article 68(5) of the Rules of Procedure of the General Court with the actions concerning the same decision M.8870, which, on account of the substantive connection between them, are cumulative and form a single decision closing the proceedings;

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

Pleas in law and main arguments

In support of its action against the Commission’s decision of 17 September 2019 declaring the E.ON/innogy concentration to be compatible with the internal market, (Case M.8870) (OJ 2020 C 379, p. 16), the applicant, in essence, relies on one plea in law, namely infringement of the provisions of Council Regulation (EC) No 139/2004 . (1) In doing so, it relies on the following arguments:

| 1. | Dividing the proposed concentration into three transactions.






  — | By artificially dividing 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 failed correctly to take account, 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 characterisation 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 effects of the transaction under competition law. |
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1.

Dividing the proposed concentration into three transactions.

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By artificially dividing 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 failed correctly to take account, 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 characterisation 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 effects of the transaction under competition law.

| 2. | Incorrect assessment of the proposed concentration and its effects on the European internal market.






  — | The defendant also failed properly to 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 the effects on competition. In so doing, it also relied on materially incorrect facts. In that 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.

Incorrect assessment of the proposed concentration and its effects on the European internal market.

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The defendant also failed properly to 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 the effects on competition. In so doing, it also relied on materially incorrect facts. In that 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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