# C_2023321EN.01004101.xml

| 11.9.2023 | EN | Official Journal of the European Union | C 321/41 |
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11.9.2023

EN

Official Journal of the European Union

C 321/41

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Appeal brought on 21 July 2023 by eins energie in sachsen GmbH & Co. KG against the judgment of the General Court (Fourth Chamber, Extended Composition) delivered on 17 May 2023 in Case T-318/20, eins energie in sachsen GmbH & Co. KG v European Commission

(Case C-469/23 P)

(2023/C 321/45)

Language of the case: German

Parties

Appellant: eins energie in sachsen GmbH & Co. KG (represented by: I. Zenke, Rechtsanwältin, and T. Heymann, Rechtsanwalt)

Other parties to the proceedings: European Commission, Federal Republic of Germany, E.ON SE, RWE AG

Form of order sought

The appellant claims that the Court should:

| 1. | set aside the judgment of the General Court of the European Union of 17 May 2023, energie in sachsen v Commission (T-318/20), and annul the decision of the European Commission of 26 February 2019 on the merger of ‘RWE/E.ON Assets’ (Case M.8871, OJ 2000 C 111, p. 1);
  1a. in the alternative, and in any event, refer Case T-318/20 back to the General Court for it to make all necessary decisions; |
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1.

set aside the judgment of the General Court of the European Union of 17 May 2023, energie in sachsen v Commission (T-318/20), and annul the decision of the European Commission of 26 February 2019 on the merger of ‘RWE/E.ON Assets’ (Case M.8871, OJ 2000 C 111, p. 1);

1a. in the alternative, and in any event, refer Case T-318/20 back to the General Court for it to make all necessary decisions;

| 2. | order the Commission to pay the costs, including lawyers’ fees and travel expenses incurred by the appellant in proceedings T-318/20. |
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2.

order the Commission to pay the costs, including lawyers’ fees and travel expenses incurred by the appellant in proceedings T-318/20.

Grounds of appeal and main arguments

By its first ground of appeal, the appellant alleges a failure to state reasons, a distortion of the facts and an infringement of procedural rights.

First, inadequate reasons were given in the judgment under appeal because it is not apparent from it whether or how the General Court assessed the effect on the applicant’s market position (paragraphs 23 et seq. of the judgment under appeal).

Secondly, the General Court distorts the appellant’s arguments in stating that there are no specific circumstances relating to an effect on its market position (paragraph 31 of the judgment under appeal).

Thirdly, the General Court infringed the appellant’s procedural rights in not examining whether it is materially affected.

In the second ground of appeal, the General Court is alleged to have misapplied the fourth paragraph of Article 263 TFEU. The judgment errs in ruling that the appellant is not individually concerned under that provision.

First, the General Court incorrectly takes the view that formal participation in merger control proceedings M.8871 is a condition for establishing that the appellant is individually concerned.

Secondly, the General Court’s requirements relating to the existence of other specific circumstances in order for the view to be taken that the appellant is individually concerned are excessive.

By its third ground of appeal, the appellant complains that the General Court failed to examine its substantive pleas. Referring to the judgment in Case T-312/20, it submits that the General Court misinterpreted EU law — namely Article 101 TFEU and Article 21(1) of Regulation (EC) 139/2004. (1)

First, EU law was infringed on account of the failure to apply Article 101 TFEU because of an alleged blocking effect of Article 21 of the EC Merger Regulation (paragraphs 392 et seq. of the judgment in Case T-312/20).

Secondly, account was not taken of the evidence submitted by the appellant of a cartel agreement between RWE and E.ON for the purposes of Article 101 TFEU (paragraphs 392 et seq. of the judgment in Case T-312/20).

Thirdly, the failure to take account of the facts submitted by the appellant on formal grounds is regarded as an infringement of procedural rights (paragraphs 393, 394 and 406 et seq. of the judgment in Case T-312/20).

By its fourth ground of appeal, the appellant submits that the General Court erred in not regarding the merger control proceedings of the Commission in Cases M.8871 and M.8870 and the merger control proceedings of the Bundeskartellamt (Federal Cartel Office) in Case B8-28/19 as integral parts of a single concentration, which were to be examined in merger proceedings.

In that context, first, the General Court is criticised for having excluded RWE’s investment in E.ON of 16,67 % in Case B8-28/19 (paragraphs 65 et seq. of the judgment in Case T-312/20).

Secondly, the interpretation of the definition of a ‘single concentration’ under Article 3, read in conjunction with recital 20, of the EC Merger Regulation is criticised (paragraphs 74 et seq. of the judgment in Case T-312/20).

The fifth ground of appeal maintains that the General Court also infringed and incorrectly applied Article 2 of the EC Merger Regulation on account of an erroneous assessment of the market in Case M.8871.

First, the General Court erred in approving the fact that the Commission left open the definition of the market (paragraphs 220 et seq. of the judgment in Case T-312/20).

Secondly, the General Court failed to challenge the Commission’s inadequate forecast of market developments (paragraphs 229 et seq. of the judgment in Case T-312/20).

Thirdly, the appellant challenges the allegedly inadequate assessment of RWE’s increasing market power (paragraphs 260 et seq. of the judgment in Case T-312/20).

Fourthly, the General Court is alleged to have inadequately assessed the competitive relationship between RWE and E.ON and the elimination of E.ON (paragraphs 339 et seq. of the judgment in Case T-312/20).

Lastly, in the sixth ground of appeal, the appellant alleges that the General Court infringed the principles of the allocation of the burden of proof by applying an excessive standard of proof in the judgment in Case T-312/20 (paragraphs 273, 278 et seq., 328, 341, 344 and 382 of that judgment).

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

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