Judgment — ECLI:EU:T:2003:100
Date: 2003-04-03
Language of the case: French
Court formation: Third Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices;Concentrations between undertakings;Concerted practices
Concepts: Applications by natural or legal persons;Intervention;Assessment criteria;Commitments
Procedure: Action for annulment - unfounded;Action for annulment - successful
Origin: France

summary of the pleas in law on which the application is based, in order to respect the rights of defence. 301. On this point it must be observed, first, that the application contains the express plea that the Commission authorised the concentration without commitments as to markets with serious competition problems. As the first subparagraph of Article 48(2) of the Rules of Procedure prohibits only the introduction of new pleas in law, the objection of inadmissibility must be dismissed. 302. With regard to the Italian markets, the Commission replied to the merits of this plea in its defence, without raising any objection as to admissibility. 303. However, in its replies to the Court's written questions, the Commission argued that, regarding Italy and, all the more, the other countries where the Commission did not impose commitments, the applicant has not criticized the Commission's reasoning that retailers would be able to penalise any attempt at anti-competitive conduct. 304. Although it must be admitted that the submissions in the application were brief, in particular concerning the British, Irish, Spanish, Finnish and Norwegian markets, regarding which the applicant merely stated that problematic situations had also been found there, nevertheless the applicant's arguments, in its replies to the Court's written questions asking for details of the nature of its complaints and during the hearing, cannot be deemed a new inadmissible plea, but only as matters capable of supporting the plea relied upon in the application. This finding applies also to the submissions concerning the Italian markets. 305. Second, the objection based on Article 44(1)(c) of the Rules of Procedure must also be dismissed because, in conformity with that provision, a summary of the plea in law is given in the application. Furthermore, the purpose of that provision is to secure respect for the rights of defence. It must be said that the Commission was fully enabled to reply to the applicant's complaints on that point. In particular, in its statement of defence the Commission had already set out its argument that it was unnecessary to impose commitments in respect of the Italian markets on the ground that any attempt at anti-competitive conduct by SEB-Moulinex would be penalised by smaller purchases of SEB-Moulinex products on the other markets in Italy. The Commission was also asked by the Court to give written replies to a number of questions on those complaints. Finally, at the hearing, the Commission was once again able to set out in detail the substance of its position on this point. 306. Third, in so far as the Commission complained that the Court itself raised a new plea, because it was not raised by the applicant, it is sufficient to observe that the plea concerning the lack of commitments in countries with competition problems was indeed formulated by the applicant in its application. It was only in response to the Commission's arguments in its defence that the Court found it necessary to ask a number of written questions, by way of measures of organisation of procedure provided for by Article 64 of the Rules of Procedure, in order to clarify the respective arguments of each of the parties. Furthermore, in that connection it must be observed that in Case C-252/96 P Parliament v Gutiérrez de Quijano y Lloréns [1998] ECR I-7421, paragraph 30, the Court of Justice held that from a straightforward reading of the first subparagraph of Article 48(2) of the Rules of Procedure in the context of Title 2, Chapter 1, of those Rules, which is entitled Written Procedure, it is clear that this is a rule which applies to the parties and not the Court of First Instance. 307. It follows that the plea concerning the lack of commitments in relation to markets with serious competition problems is admissible, also in so far as it relates to the Spanish, British, Irish, Finnish and Norwegian markets. 2. Substance 308. First of all, in the contested decision the Commission found that the concentration raised serious doubts with regard to certain product markets in Portugal, Greece, Belgium, the Netherlands, Germany, Austria, Denmark, Sweden and Norway (paragraph 128 of the contested decision). Consequently the Commission required commitments in those countries. 309. Second, according to the contested decision, the Commission found that the geographical markets in question are national (paragraph 30) and took the view that each of the 13 product categories is a distinct market (paragraphs 17 to 25 of the contested decision). It follows that the competition situation must, at least initially, be examined in relation to each market separately, both in geographical terms and in terms of products. However, the exclusive licences for the Moulinex trade mark provided for by the commitments in each of those nine Member States still cover all 13 product markets, although serious doubts were expressed only in respect of one or two product markets. The Commission rightly found, in paragraph 141 of the contested decision, that the extension of the exclusive licence commitments to all small electrical household products and thus to products in respect of which the Commission has no serious doubts is necessary to ensure the efficiency and viability of the remedies provided for by the commitments, because the same mark cannot be held simultaneously on the same geographical market by two different undertakings. 310. It follows that the finding that the concentration raised serious doubts on a single product market of one country was sufficient to require a commitment for all the product markets of the country in question. Accordingly, paragraphs 113, 114 and 128 of the contested decision show that commitments were imposed in Sweden although the Commission considered that the concentration raised serious doubts only on the deep friers market in Sweden. 311. On the other hand, regarding the markets in Italy, Spain, the United Kingdom, Ireland and Finland, the Commission found that the concentration changes competition conditions only marginally and therefore it did not require commitments covering those countries. 312. The applicant contends, in essence, that serious competition problems arose on certain markets in Norway, Italy, Spain, the United Kingdom, Ireland and Finland and that, in conformity with the investigation of the competition situation which it had carried out in the Member States affected by the commitments, the Commission ought also to have imposed commitments concerning those markets. 313. In reply to the Court's written questions, the Commission explained that it had carried out its investigation taking account of four factors flowing from the identification of the competition conditions peculiar to the concentration in question, namely: - in which markets does the new entity have market shares of more than 40%; - is there a significant overlap between the parties on the relevant product market; - what is the position of the merged entity in relation to its competitors; - what is the size of the relevant product market by comparison with the total sales of the combined entity and, correspondingly, to what extent are distributors able to apply counter pressure (the range effect)? 314. Before considering whether this four-stage examination serves to rule out any serious doubts in respect of each of the geographical markets for which it did not impose commitments, it is necessary to ascertain whether the Commission actually used such an examination in the decision in order to assess the effects of the concentration on the different markets. (a) The four stages of the examination - The dominance threshold of 40% 315. It is clear from the contested decision, in particular paragraphs 44, 48, 55, 56, 63, 72 and 83, that, in conformity with the first stage mentioned by the Commission in its replies to the Court's questions, the entire examination of the competition situation in the decision is based on the consideration that a market share of 40% was a sign of dominance. Where the combined entity SEB-Moulinex attained or exceeded the 40% market share threshold in a product market, it had to be concluded that, subject to examination of the three other factors, it had a dominant position and that commitments would be required. The Commission, as it stated in its replies to the Court's questions, even found that a dominant position existed in the food mixer market in Greece although SEB-Moulinex had a market share of only 39%. Furthermore, it appears from paragraphs 55, 58, 62 and 128 of the contested decision, that the Commission considered that the concentration raised serious doubts on the toaster market in Belgium although the parties only had a market share of 20-30% and had to face competition from Philips, which had a market share of 25-35%. - No significant overlap 316. According to the explanation given by the Commission in its reply to the Court's written questions, the Commission then considered whether, for the markets where the new entity's market share was more than 40%, there was a significant overlap between the parties on the relevant product markets. The Commission observed that, when it found that there was no overlap or only a minimal overlap, it ruled out serious doubts for the relevant product market on the ground that the concentration caused no perceptible change in the competition situation. 317. As it stated in its reply to the Court's written questions, the absence of a significant overlap led the Commission to rule out serious doubts for a number of product markets where the overlap was minimal [(see, in particular, the portable ovens market in Finland (paragraph 87 of the contested decision), the informal meals market in Germany (paragraph 88 of the contested decision), the espresso machines market in Norway and Sweden (paragraph 90 of the contested decision)]. 318. The absence of any significant overlap between the parties is, as the Commission correctly points out, such as to rule out serious doubts even for the product markets in which the entity has a market share of more than 40% because, in that case, the dominant position is not being created or strengthened by the concentration, but is already in existence. 319. However, two qualifications are called for. 320. First, even where the overlap is slight, the concentration entails strengthening of the dominant position and therefore serious doubts can be ruled out only where the overlap is really insignificant. 321. On this point, the decision merely indicates the market shares within a 10% bracket. Although it may be true that there is no significant overlap where a market share is close to 0%, the same cannot be true where it is close to 10% and in that case it would have to be found that a dominant position is being created or strengthened. Consequently the decision does not enable the Court to review the legality of that decision. Furthermore, although the Court, in its written questions, expressly requested the Commission to state the exact market share of SEB-Moulinex in the markets for kettles and informal meals in Italy, the Commission confined itself, in its replies, to reproducing the figures within a 10% bracket given in the decision. 322. The impossibility of carrying out an effective review of the decision follows from the findings of the decision itself because the facts it contains are too vague. The fact that one of the parties to the concentration had a market share of 0-10% is taken by the Commission as a basis for finding sometimes that there are no serious doubts on the ground that there is no significant overlap, and sometimes for finding that there are such doubts. 323. This applies, in particular, to the food mixer market in Greece, where the new entity had a combined market share slightly below the dominance threshold (39%, see paragraph 72 of the contested decision and the reply to the Court's questions). The Commission did not rule out serious doubts in spite of an overlap varying between 0 and 10%, Moulinex's market share for the products in question being 30-40% and that of SEB only 0-10% (see the table annexed to the contested decision). 324. Likewise the Commission found that there were serious doubts in relation to the irons market in the Netherlands, where the parties to the concentration had a combined market share of 40-50% with an overlap of 0-10% for Moulinex. 325. On other product markets where the combined entity had a market share of 40-50%, the Commission also found that the concentration raised serious doubts in spite of the fact that one of the parties held a market share of only 0-10%. This applies, in particular, to the barbecues market in Germany (paragraph 97), where the parties will also face major competitors, including Severin, with a market share of 25-35%, the markets for irons and ironing stations in Belgium (paragraphs 55, 56 and 59 of the contested decision), and the markets for deep friers, toasters and electric coffee machines in Portugal (paragraphs 48, 49 and 54 of the contested decision). 326. On the other hand, while the absence of significant overlap is a valid reason for ruling out serious doubts when the Commission is at first examining competition in an individual product market, there are no grounds for taking that factor into account when carrying out a more general examination of all the product markets of a particular country. 327. Moreover on several occasions the Commission relied on the fact that one of the parties to a concentration held strong positions in markets where the other party was weak, and vice-versa, to conclude that the concentration raised serious doubts. For example, with regard to Greece, the Commission observes as follows in paragraph 73 of the contested decision: The parties had very large market shares (30-40% and 20-30%) simultaneously only in the market for sandwich and waffle makers. Therefore the effect of the concentration is to add to Moulinex's position in espresso machines significant dominating positions in the markets for deep friers, kettles, sandwich makers and food mixers. - The position of the merged entity in relation to competitors 328. The Commission states that it went on to take account of the joint position of the parties to the concentration in relation to their competitors and so concluded that the concentration raised no serious doubts. 329. In this connection it must be observed, first, that as the dominance threshold used by the decision is 40%, the mere finding that the combined entity would face competitors on a product market does not mean that the concentration does not raise doubts in relation to that market. The presence of competitors is likely to modify, or even eliminate, the combined entity's dominant position only if those competitors hold a strong position which acts as a genuine counterweight. 330. Secondly, the markets in question are markets with a rather oligopolistic structure and several undertakings have both an extensive product range and a pan-European presence. They are, as mentioned in paragraph 32 of the contested decision, essentially companies such as SEB, Moulinex, Philips, Bosch, Braun and De'Longhi. Therefore the presence in a given market of one or other of those competitors does not appear of itself to justify the conclusion that the concentration raises no doubts in relation to that market. The same applies to undertakings which either have a wide product range but are present only in some countries (Taurus in Spain and Morphy in the United Kingdom), or have a limited number of products (Saeco for espresso machines). 331. It is also clear from the contested decision that, in almost all the markets where the Commission found that the concentration raised serious doubts, it nevertheless noted the presence of one or more of those competitors. 332. It follows that the presence of one or other of those competitors in markets where the combined entity held a market share of 40% or more was not, of itself, such as to rule out serious doubts and it could have had that effect only if the competitors had sufficiently large market shares to constitute a genuine counterweight to the position of SEB-Moulinex and thus eliminate those doubts. 333. On this point the Commission also found that there were serious doubts in relation to several markets where the competitors of the parties to the concentration held significant market shares. 334. Accordingly in the deep friers market in Greece, the Commission did not rule out serious doubts as to the compatibility of the concentration although the main competitor of the parties to the concentration, De'Longhi, held a market share of 35-45%, which was not only a very large share, but even equal to that of SEB-Moulinex (paragraph 72 of the contested decision). 335. Likewise the Commission found that there were serious doubts in relation to the market for irons and ironing stations in the Netherlands although SEB-Moulinex, which held a market share of 40-50% (paragraph 63 of the contested decision) was faced with competition from Philips with a share of 35-45% (paragraph 67). 336. The Commission also refused to rule out serious doubts in spite of the presence of competitors with large shares of the markets for kettles and irons in Belgium. In the former market, the new entity held a share of 35-45% (paragraph 55 of the contested decision), and the main competitor, Braun, had 20-30% (paragraph 58). In the latter, the new entity's share was 40-50% (paragraph 55) and the main competitor, Philips, held 25-35% (paragraph 59). 337. Finally, in the toasters market in Belgium, where the main competitor, Philips, held a 25-35% share (paragraph 58 of the contested decision), the Commission did not rule out serious doubts concerning the compatibility of the concentration although the new entity itself held a market share of only 20-30% (paragraph 55), namely a share not only considerably below the dominance threshold fixed by the Commission, but also less than that of its main competitor. 338. It follows that, according to the Commission's analysis in the contested decision, the presence of competitors, even where they held quite substantial market shares, was not considered in principle to rule out a finding that the concentration raised serious doubts. - The range effect 339. First of all, it must be observed that each product market constitutes a distinct market. It follows that the competition conditions in each product market in each Member State must, in principle, be appraised independently of the conditions in each or all of the other markets. With regard to the nine Member States covered by the commitments, although the Commission sometimes fleshed out its assessment with observations concerning the global situation in all the product markets of a given geographical market, it always began by finding serious doubts as to certain product markets by appraising each product market separately. 340. Accordingly, in the case of Portugal, Greece, the Netherlands and Belgium, the Commission, after finding serious doubts as to a number of product markets, added that, in view of the combination of significant positions of dominance, the parties to the concentration would be able to extend their strong market position to all the other product markets (paragraphs 54, 62, 71 and 82 of the contested decision). 341. According to paragraph 83 of the contested decision, the risk of creating market power over the entire product range can be ruled out where the product markets in which the combined entity has a market share exceeding 40% do not represent more than 35% of the parties' aggregate turnover. However, this distinction between countries where the combined entity would be able to extend its market power to all the product markets and those countries where the concentration raises serious doubts in relation to only some product markets, or even only one (as in the case of Sweden), appears in actual fact to be irrelevant because, as stated above, the same commitments were required in both cases. 342. It is, however, not an absolute rule that different product markets constitute distinct markets and it may be found necessary to modify the assessment of a particular product market in the light of the competition situation in all other product markets of the Member State concerned. 343. In the present case there was all the more justification for taking the overall competition situation into account because it is common ground that the brand is the most important competition factor in the markets concerned and the reputation of the brand is to the advantage of all the products carrying it. Likewise, in order to assess an undertaking's competition position, the Commission may have to take into account its portfolio of brands or the fact that it has large market shares in numerous product markets (the portfolio effect). 344. In the present case the Commission took the portfolio effect into account. Throughout the contested decision, except in the discussion concerning the countries not covered by the commitments, the Commission pointed out that the strength of the combined entity was accentuated by a unique portfolio of brands (whereas its competitors had only a single brand), by a strong presence on numerous markets and by the juxtaposition of the respective positions of SEB and Moulinex. 345. Accordingly, paragraph 52 of the contested decision reads as follows: in view of the importance, discussed above, of brands in this type of market, the weight of the parties in almost all the markets in question and the new entity's product range and brand portfolio, it is unlikely that competitors will be able to challenge the parties' positions and bring to bear sufficient competition pressure on the new entity. 346. It must be observed that the portfolio effect operates not only in relation to consumers and competitors, but also, and above all, retailers. The Commission explains, in paragraph 53 of the contested decision, that the same applies to retailers who, in spite of their theoretical negotiating strength (using the threat of de-listing, for example), will not be able to discipline the parties' conduct in response to a price rise; that the brand portfolio and the uniformly strong presence of the new entity in all the relevant product markets will be such that the new entity will be able to deter retailers from resisting a price rise, for example, by the threat of de-listing brands of the new entity; that the combined entity could, for example, offer combined discounts or as a threshold and that likewise, the predominant position of the SEB and Moulinex brands will make it difficult for a retailer to dispense with them on its shelves. These observations, which arose in the examination of Portuguese markets, are also reproduced in connection with the markets in Belgium (paragraphs 60 and 61 of the contested decision), the Netherlands (paragraphs 69 and 70) and Greece (paragraphs 80 and 81). Furthermore, as the Commission was led to conclude, because of the portfolio effect, that the new entity SEB-Moulinex would be able to extend its market power to all the product markets of those four countries, even though it had market shares below the 40% threshold, the portfolio effect is all the more likely to confirm that the concentration raises serious doubts in respect of markets where the new entity has shares exceeding 40%. 347. In its past decisions, the Commission had already pointed out the need to take the portfolio effect into account to determine the true market strength of an undertaking. For example, in the Guinness/Grand Metropolitan decision cited above, the Commission had explained that the holder of a portfolio of dominant brands may have a number of advantages and that, in particular, he has a stronger position vis-à-vis his customers because he can offer them a range of products which represents a higher proportion of their turnover. 348. In its observations addressed to the Commission (Annex 2 to the letter of 3 December 2001), De'Longhi drew the Commission's attention to the risks arising from the concentration, within the same industrial group, of all the main brands and a complete range of products. It stated as follows: The aspect which causes most concern to De'Longhi is the relationship which will exist, after the concentration, between SEB-Moulinex and the major distributors, taking into account the increased negotiating strength which the buyer will have in markets where it will hold a dominant position. That strength will be all the greater thanks to the complete range of products and brands which it will have as a result of the concentration ... There is no doubt that SEB-Moulinex will considerably extend its portfolio of products in such way that it will be able, in some cases, to provide a complete range, which will create detrimental effects, particularly with regard to distribution channels. 349. In its replies to the Court's written questions, the Commission stated that the presence of the same brands and the same intermediate customers in all the product markets of one and the same country necessarily entailed taking account of range effects when examining competition. According to the Commission, where the concentration helps to give the parties strong positions in product markets which in total represent a marginal part of their turnover, the entity resulting from the concentration will not be induced to make use of its strength in those markets because the retaliation which it must expect in other product markets, where it does not have a position of strength, represents lost profits considerably greater than the gains which it could expect in the markets where it has a strong position. Where the sales of the combined entity in the dominated markets represented less than 10% of the entity's total sales in the same country, the Commission stated, in its pleadings before the Court and in the course of the hearing, that it considered that the retailers' capacity for retaliation was not affected by the concentration and was at a sufficient level to cause the range effect to operate in their favour. By that the Commission means that any attempt at anti-competitive conduct by SEB-Moulinex on the markets where the combined entity holds a dominant position would be penalised by smaller purchases by retailers of SEB and Moulinex products on the other markets. 350. According to the Commission, the range effect rules out serious doubts only if the turnover of the parties to the concentration in the dominated product markets represents only a marginal portion of their total turnover in the same country. The Commission fixed at a maximum of 10% the marginal portion of turnover in the dominated markets above which the range effect can no longer operate. The 10% figure is not disputed. Accordingly in paragraph 123 of the contested decision the Commission explained that any attempt at anti-competitive conduct in the kettles and informal meals markets in Italy, where the parties hold combined market shares of 65-75% and 40-50% respectively, would be penalised by smaller purchases of SEB and Moulinex products on the other markets in Italy where the combined entity obtains 90-100% of its turnover, which means that the dominated markets account for only 0-10% of their turnover. Regarding Spain and Finland, the Commission found, in paragraphs 116 and 119 of the contested decision respectively, that the entity obtained 85-95% of its turnover in the non-dominated markets, which means that the dominated markets account for 5-15% of their turnover, or slightly more than 10%. However, in its replies to the Court's written questions, the Commission expressly confirmed that where the ratio between sales on the dominated markets and total sales in the same country was low, namely less than 10%, it considered that retailers could use their capacity for retaliation. At the hearing the Commission once again confirmed the maximum limit of 10% up to which, in its opinion, the range effect could operate. 351. The abovementioned 10% of turnover which permits the range effect to operate must not be confused with the portion under 35% mentioned in paragraph 83 of the contested decision, which relates to the different question of the level above which the portion of turnover obtained on the dominated markets is of such an amount that the parties would be able to extend their market power to all the other markets of the country concerned. In paragraph 83, the Commission found that, where the relative shares of the parties' combined turnover on the dominated markets was below 35%, it was possible to rule out serious doubts as to the creation of a market power over the entire product range for those countries and therefore all that remained was to examine individual product markets. Apart from the fact that, as mentioned above, this question does not appear to be relevant in the present case, because the same commitments were imposed independently, whether the parties have market power in a single product market or in all the product markets of the country concerned, it must not be confused with the question whether retailers are able to penalise the parties to the concentration if they attempt to abuse their dominant position on certain markets. Whereas the 35% figure is the limit above which the Commission considered that there was a risk of extending the dominant position to all the product markets of a country, the 10% figure is the limit below which the parties' dominance on a product market is, according to the Commission, jeopardised by the possibility of retaliation by retailers. 352. The range effect, as applied by the Commission in the present case, calls for the following observations. 353. To begin with, as the Commission considered that each product market constitutes a distinct market, the competition situation must in principle be examined market by market. Therefore although, as indicated above, it may be necessary to refine the examination of competition in one product market by means of data relating to other product markets or even other countries, the fact remains that the principle is that each market is to be assessed independently and any exception to or modification of that principle must be based on specific and consistent evidence showing the existence of such interactions. 354. First, whereas the concept of portfolio effect aims to assess the true competition situation of an entity resulting from the concentration and, as the case may be, to conclude that it has a dominant position in spite of a market share which does not in itself give rise to a dominant position, by taking into account not only the aggregate market shares of the parties, but also the additional market strength arising from the fact that the new entity owns a large number of brands and is present in numerous markets, the range effect as used by the Commission to justify the absence of serious doubts in the countries not covered by the commitments seeks, on the contrary, to put into perspective the strength of the entity resulting from the concentration and thus to rule out a finding of a dominant position to which the aggregation of market shares leads. 355. It is common ground that the two parties to the concentration each had strong positions in numerous markets and owned several well-known brands. In addition to resulting in the aggregation of market shares, the concentration had the effect of enlarging the brand portfolio and the number of markets where SEB and Moulinex were present, thus enhancing their market power, particularly in relation to retailers. The Commission observed in several passages of the contested decision that the strong positions they already held before the concentration in numerous product markets were strengthened further by the contribution of market shares and brands in several other markets (paragraphs 46, 47, 50 to 52, 56, 60, 69, 73, et seq.). 356. Second, the Commission has not established to the requisite legal standard the allegation that any attempt at anti-competitive conduct in the dominated markets would be penalised by smaller purchases of SEB-Moulinex products in the other markets. 357. As De'Longhi contended at the hearing, the situation envisaged by the Commission of a conflict between SEB-Moulinex and the retailers is no more plausible than that of an agreement between them to maximise their respective interests. 358. Moreover, the Commission has not even shown how its underlying assumption, namely a price increase by SEB-Moulinex, necessarily affects the retailers' interests and thereby induces them to penalise SEB-Moulinex. 359. When questioned by the Court on the economic principles underlying the range effect factor, the Commission admitted that it had no economic study available to it on the subject. Apart from a reference to the Guinness/Grand Metropolitan decision which, as stated above, applies the very different concept of the portfolio effect, the Commission in reality merely pointed out that this argument had been put forward by the parties to the concentration in their notification. 360. In addition, the Commission considered only the possibility of a price rise by SEB-Moulinex. However, the latter is capable of other types of anti-competitive behaviour. In particular, the concentration will enable SEB-Moulinex to make economies of scale and implement various rationalisation measures, thus generating a reduction in costs of which it could take advantage to reduce prices or allow retailers a bigger margin in order to increase its market share. Likewise SEB-Moulinex could induce retailers to de-list its competitors. 361. Moreover, the assertion that retailers can penalise SEB-Moulinex in the event of a price rise is based on the unproven assumption that the retailers determine the choice of ultimate consumers. As the retailers' function is to resell to consumers the products which they buy, the possibility of their penalising SEB-Moulinex by reducing their purchases of SEB-Moulinex products in other markets must be qualified, particularly as the brand is the primary factor of choice in competition in the markets in question. 362. Third, the range effect as defined by the Commission, in so far as it consists in the assumption that retailers will be able to penalise any anti-competitive conduct by the new entity, amounts rather to saying that retailers will be able to prevent SEB-Moulinex from abusing its position, than to proving that the combined entity will not have a dominant position. Regulation No 4064/89 aims to prohibit the creation or strengthening of a dominant position, not the abuse of one. 363. It follows that the Commission has not established to the requisite legal standard the correctness of its theory of the range effect, which it has used to justify the absence of serious doubts in countries not covered by the commitments. 364. However, even assuming that the Commission was able to use the theory as a basis for finding that there were no serious doubts in certain markets notwithstanding the entity's strong position in those markets, on the ground that they represented only a small proportion of all the markets concerned, account ought to have been taken in any case of all the markets where the parties held a dominant position, in particular those where SEB-Moulinex had a market share exceeding 40% but in relation to which the Commission ruled out serious doubts on the ground that there was no significant overlap in the parties' market shares. 365. Even if the concentration does not create or perceptibly strengthen the dominant position held by one of the parties before the concentration, the new entity nevertheless has a dominant position in those markets. The absence of overlap does not dispose of the dominant position. Therefore it cannot be concluded that a retailer will be able to penalise the entity created by the merger of two undertakings, each with a monopoly over one half of the relevant markets. (b) The countries not covered by the commitments 366. It is now necessary to consider whether, in the light of the foregoing observations, the Commission's reasons are capable of justifying its finding that the concentration did not raise serious doubts regarding the relevant product markets in Italy, Spain, Finland, the United Kingdom and Ireland or whether, as the applicant contends, the Commission should not have approved the concentration without imposing commitments in relation to those geographical markets. 367. As stated in paragraph 315 above, the existence, in a distinct geographical market, of a single relevant product market in which the concentration raised serious doubts was sufficient, according to the contested decision, to entail the automatic imposition of commitments in relation to all the relevant product markets in that geographical market. - Norway 368. The applicant's complaint is based on a misunderstanding of the contested decision because that decision concludes precisely that there are serious doubts on certain product markets concerned in Norway and therefore provides that the commitments are to cover Norway also (paragraph 137 of the contested decision). 369. On this point, therefore, the plea is manifestly unfounded in fact and must be dismissed. - Spain 370. According to paragraph 115 of the contested decision, the combined market shares of the parties to the concentration in Spain are 40-50% (SEB 5 to 15%) for kettles and 75-85% (SEB 0 to 10%) for portable ovens. 371. However, in paragraph 116 of the contested decision, the Commission concluded that these very strong positions would not enable the new entity to engage in anti-competitive conduct. That conclusion is based solely on the ground that, as competitors such as De'Longhi, Taurus, Bosch and Philips have significant positions in numerous product markets, including the two relevant product markets ... the retailers have alternative trade marks with a strong reputation which are used for the entire range of small electrical household appliances in place of those of the parties, so that any attempt at anti-competitive conduct on those markets would therefore be penalised by reduced purchases of SEB and Moulinex products on the other markets where the merged entity achieves 85-95% of its turnover. 372. It follows that, in this geographical market, the Commission ruled out any serious doubts on the basis of two factors, namely the position of the merged entity in relation to its competitors and, secondly, the range effect. 373. First, regarding the position of the merged entity in relation to its competitors, contrary to the Commission's assertion, on the kettles market many competitors, such as De'Longhi, Taurus, Bosch and Philips, cannot have significant positions because SEB-Moulinex has market shares of 75-85%. Consequently the competitive pressure on SEB-Moulinex arises from either only one competitor with a market share of 20% at the most, which is almost one quarter of that of the parties to the concentration, or from several competitors whose market shares must be very small and, in any case, of minimal significance in comparison with those of the parties. Therefore in no product market, not even in the countries covered by the commitments, does the new entity have a position as strong as its position in the portable ovens market in Spain. 374. In the present case, therefore, the Commission has not shown any particular reason why, in spite of the parties having market shares of 40-50% (SEB 5-15%) for kettles and 75-85% (SEB 0-10%) for portable ovens, the concentration did not give rise to serious doubts. 375. Secondly, for the reasons given in paragraphs 364 and 365 above, the range effect did not justify ruling out serious doubts. 376. In any case, even if it is accepted, as the Commission argues in paragraph 116 of the contested decision and in its replies to the Court's written questions, that the range effect justified ruling out serious doubts where, in a given geographical market, the turnover of SEB-Moulinex on the relevant product markets where the combined entity had a market share above 40% was below 10% of its total turnover on all the relevant product markets in that geographical market, the Commission did not show, either in the contested decision or before the Court, that that was the case in Spain. 377. Admittedly, it is clear from paragraph 116 of the contested decision that the kettles and portable ovens markets in Spain accounted for not more than 5-15% of the combined entity's total turnover on all the relevant product markets in Spain. However, according to paragraphs 88 and 92 of the contested decision, the new entity also had a share of more than 40% of the informal meals and food mixers markets. Table no. 2, compiled by the Commission in reply to the Court's questions, shows that the markets where SEB-Moulinex had a share above 40%, including the informal meals and food mixers markets, accounted for 25-35% of their total sales in Spain. Consequently, for the reasons given in paragraphs 364 and 365 above, the Commission ought to have taken account of those markets to assess the possibility of penalisation by retailers. 378. Furthermore, SEB-Moulinex has a market share exceeding 40% in no less than four relevant product markets in Spain. In paragraph 43 of the contested decision, the Commission stated that the concentration's effects on competition could be listed in four categories, namely France, where the concentration had been referred to the national authorities, the countries where the concentration would change competition conditions only marginally, the countries where it raised serious doubts in only some product markets and, finally, the four countries (Portugal, Greece, Belgium and the Netherlands) where it led to a combination of market shares at sometimes high levels in respect of many of the product categories in question, so that the parties would be able to extend their market power to all the other relevant markets. However, SEB-Moulinex has a market share exceeding 40% in no less than four product markets in Spain, that is to say, as many product markets as in Greece, which however is one of the countries in respect of which the Commission considered that the concentration raised serious doubts in a large number of markets. 379. Finally, as De'Longhi and the applicant correctly observed at the hearing, the Commission refrained from examining the portfolio effect induced by the concentration and, in particular, the fact that the concentration enabled the strong positions of SEB on the kettle, informal meals and iron markets to build onto those of Moulinex on the toaster, coffee machine, portable oven and food mixer markets. Likewise, the contested decision does not explain why the fact that the new entity will hold, because of the concentration, an array of four brands is not such as to strengthen its market power whereas the Commission took care on numerous occasions to point out, with regard to the geographical markets covered by the commitments, that SEB-Moulinex has two brands whereas its competitors have only one. 380. It follows that the factors found in paragraphs 115 and 116 of the contested decision did not justify the Commission in ruling out serious doubts as to the kettle and portable oven markets in Spain. - Finland 381. According to paragraph 118 of the contested decision, the combined market share of the parties to the concentration is 45-55% of the Finnish toaster market. Although this is above the 40% threshold, the Commission considered that the concentration raised no serious doubts in that country because, in view of the presence of competitors such as Philips and Bosch, any attempt at anti-competitive conduct on that market would be likely to be penalized by smaller purchases of SEB-Moulinex products on the other markets where the combined entity achieves 85-95% of its turnover. 382. It follows that, in that geographical market, it is only by applying the range effect that the Commission found that the concentration raised no serious doubts in respect of the toaster market in Finland. However, for the reasons given in paragraphs 364 and 365 above, the range effect did not justify ruling out serious doubts. 383. In any case, even if it is accepted, as the Commission argues in paragraph 119 of the contested decision and in its replies to the Court's written questions, that the range effect justified ruling out serious doubts where, in a given geographical market, the turnover of SEB-Moulinex on the relevant product markets where the combined entity had a market share above 40% was below 10% of its total turnover on all the relevant product markets in that geographical market, the Commission did not show, either in the contested decision or before the Court, that that was the case in Finland. 384. Although, according to paragraph 119 of the contested decision, the toaster market accounted for only 5-15% of the new entity's turnover on all the relevant product markets in Finland, it nevertheless also had a share of over 40% in the Finnish markets for espresso machines (40-50%), portable ovens (35-45%) and barbecues (40-50%) (paragraphs 87, 90 and 91 of the contested decision). Table no. 2, compiled by the Commission in reply to the Court's questions, shows that the markets where SEB-Moulinex had a share above 40%, including the espresso machine, portable oven and barbecue markets, accounted for 10-20% of their total sales in Finland. Consequently, for the reasons given in paragraphs 364 and 365 above, the Commission ought to have taken account of those markets to assess the possibility of penalisation by retailers. 385. Moreover, SEB-Moulinex has a market share exceeding 40% in no less than four relevant product markets in Finland, that is to say, as many product markets as in Greece, which is one of the countries in respect of which the Commission considered that the concentration raised serious doubts in a large number of markets. 386. Finally, as De'Longhi and the applicant correctly observed at the hearing, the Commission refrained from examining the portfolio effect induced by the concentration and, in particular, the fact that the concentration enabled the strong positions of SEB on the barbecue and toaster markets to build onto those of Moulinex on the toaster, coffee machine, espresso machine, portable oven and food mixer markets. Likewise, the decision does not explain why the fact that the new entity will hold, because of the concentration, an array of four brands is not such as to strengthen its market position, whereas the Commission took care on numerous occasions to point out, with regard to the geographical markets covered by the commitments, that SEB-Moulinex has two brands whereas its competitors have only one. 387. It follows that the factors specified in paragraphs 87, 90, 91 and 118 to 120 of the contested decision did not justify the Commission in ruling out serious doubts in respect of the portable oven, espresso machine, barbecue and toaster markets in Finland. - Italy 388. According to paragraphs 121 to 124 of the contested decision, in Italy the new entity will have a market share exceeding 40% in three product markets, namely food mixers, informal meals and kettles. 389. With regard to, first, the food mixer market, the Commission found, in paragraph 121 of the contested decision, that the parties' combined market shares were 40-50% (SEB 0-10%), that there would be competition from Braun (10-20%), Philips (0-10%) and De'Longhi (0-10%) and concluded that the concentration would have little impact on competition in eliminating the fourth largest undertaking from the market. 390. It follows that only one of the factors referred to by the Commission led it to rule out serious doubts in Italy, namely, the merged entity's market position in relation to competitors. 391. However, for the reasons given in paragraph 329 above, unless it is shown that those competitors held such a strong position as to create a genuine counterweight to SEB-Moulinex, the fact that the latter was confronted by three competitors was in itself irrelevant in a market where the leader had a market share of 40-50%. 392. In the present case, two of the three competitors mentioned in the food mixer market, namely Philips and De'Longhi, held only marginal positions of 0-10%. The third, Braun, had a more representative market share of 10-20%, but this was between one quarter and one half of the share of the new entity. In contrast, regarding the new entity's position in Portugal, the Commission found, in paragraph 51 of the contested decision, that serious doubts were raised by the fact that the parties to the concentration were market leaders with shares at least twice the size of that of their nearest competitor. 393. Likewise, the assertion that the concentration would have little effect on competition in eliminating the fourth largest undertaking from the market does not appear convincing. In actual fact, SEB had only a small market share (0-10%), like two of Moulinex's other competitors, Philips and De'Longhi. Only Braun had a larger, although modest, market share. Therefore the elimination of the fourth competitor does not have substantially different effects from those which would have resulted from the elimination of the second or third competitor. 394. Therefore the factor specified in paragraph 121 of the contested decision did not justify the Commission in ruling out serious doubts in relation to the food mixer market in Italy. 395. Secondly, regarding the informal meals market, in paragraph 122 of the contested decision the Commission found that the combined share of the parties to the concentration was 40-50% (Moulinex 0-10%), while Philips, the only competitor identified by the parties, had 0-10%. With regard to the kettle market, in the same paragraph the Commission found that the combined share of the parties to the concentration was 65-75% (Moulinex 15-25%), while De'Longhi, Philips and Braun all had 0-10%. However, in paragraph 123 of the contested decision, the Commission found that, as the kettle and informal meals markets each represented only 0-5% of the value of the whole kitchen range of small electrical household appliances, retailers would be able to penalise any attempted anti-competitive conduct on those markets by reducing their purchases of SEB-Moulinex products on the other markets where the joint entity realised 90-100% of its turnover. According to the Commission, that possibility would render unprofitable any price increase by the parties on the two relevant markets. Consequently, the Commission concluded that the concentration raised no serious doubts in relation to those markets. 396. It follows that, on that market, the Commission ruled out serious doubts solely on the basis of the range effect. It is true that, in paragraph 122 of the contested decision, the Commission mentioned the position of the merged entity in relation to its competitors. However, that consideration did not lead the Commission to rule out serious doubts in respect of the markets concerned. Moreover, the Commission was not justified in relying on that factor. Regarding the informal meals market, in contrast to the food mixers market, the Commission identified only one competitor, not three. Furthermore, on the basis of the figures in the contested decision, the possibility cannot be ruled out that the concentration brings together the two leading undertakings in the market because Moulinex and Philips both had a share of 0-10%. Regarding the kettles market, the factors mentioned in the contested decision do not appear to justify the absence of serious doubts in so far as, although there are three competitors, the concentration brings together the two leading undertakings in the market, which will have a market share of 65-75%, namely almost three quarters of the market. 397. With regard to the range effect, the reasons why it prevented the Commission from ruling out serious doubts are given in paragraphs 364 and 365 above. In that connection the fact, emphasised by the Commission, that in Italy De'Longhi was the leader in four other relevant product markets and that Saeco held 60-70% of the espresso machine market is irrelevant. By definition, the fact that SEB-Moulinex did not have a market share exceeding 40% outside the food mixer, informal meals and kettle markets must mean that other manufacturers were likely to have strong positions in those markets. 398. In any case, even if it is accepted, as the Commission argues in paragraph 123 of the contested decision and in its replies to the Court's written questions, that the range effect justified ruling out serious doubts where, in a given geographical market, the turnover of SEB-Moulinex on the relevant product markets where the combined entity had a market share above 40% was below 10% of its total turnover on all the relevant product markets in that geographical market, the Commission did not show, either in the contested decision or before the Court, that that was the case in Italy. 399. Admittedly, it is clear from paragraph 123 of the contested decision that the informal meals and kettles markets in Italy accounted for not more than 0-10% of the combined entity's total turnover on all the relevant product markets in Italy. However, according to paragraph 121 of the contested decision, the new entity also had a share of more than 40% of the food mixer market. Table no. 2, compiled by the Commission in reply to the Court's questions, shows that the markets where SEB-Moulinex had a share above 40%, including the food mixer market, accounted for 25-35% (and even 30-40%, according to the Commission's reply to the Court's written question) of their total sales in Italy. Apart from the fact that, for the reasons given above, the Commission could not rule out serious doubts on that product market solely on the basis of the criterion referred to in paragraph 121 of the contested decision, it ought to have taken account of that market, as stated above, to assess the possibility of penalisation by retailers because the new entity had a share of that market exceeding 40%. 400. Finally, as De'Longhi and the applicant correctly observed at the hearing, the Commission refrained from examining the portfolio effect induced by the concentration and, in particular, the fact that the concentration enabled the strong positions of SEB on the kettles, informal meals, barbecues and irons markets to build onto those of Moulinex on the coffee machines, kettles, steamers and food mixer markets. Likewise, the decision does not explain why the fact that the new entity will hold, because of the concentration, an array of four brands is not such as to strengthen its market power whereas the Commission took care on numerous occasions to point out, with regard to the geographical markets covered by the commitments, that SEB-Moulinex has two brands whereas its competitors have only one. 401. For those reasons it must be concluded that the factor referred to in paragraph 123 of the contested decision did not justify the Commission in ruling out serious doubts in relation to the informal meals and kettles markets in Italy. 402. Therefore the plea is well founded so far as Italy is concerned. - United Kingdom and Ireland 403. In paragraphs 125 and 126 of the contested decision the Commission states that the parties to the concentration have a combined market share of 35-45% of the irons and ironing stations market in the United Kingdom and Ireland. Table No. 2, supplied by the Commission, shows that the said market share exceeds 40%. However, in the contested decision, the Commission concluded that the concentration raised no serious doubts in the United Kingdom and Ireland because, first, it changed only marginally the competition conditions with a small addition of market share (additional 0-5%) and, second, the parties to the concentration will be faced by Philips in particular (market share 15-25%). 404. It follows that, in that geographical market, the Commission ruled out serious doubts by reason of two factors, namely, first, the absence of significant overlap and, second, the merged entity's position in relation to its competitors. 405. Regarding first, the absence of significant overlap, because the figures are vague the Court cannot verify whether this factor justified ruling out serious doubts. However, although the additional market share is small, it is nevertheless sufficient to result in a market share exceeding the dominance threshold of 40% used in the decision. 406. Secondly, as to the merged entity's position in relation to its competitors, Philips is one of four manufacturers named in paragraph 32 of the contested decision as having both a broad range of products in the small electrical household appliances sector and a pan-European presence, and therefore its presence in the market in question is not of particular significance. Similarly, as stated above, it is inconceivable that a producer with a market share of approximately 40% would not have competitors. 407. In addition, although the Commission stressed the small additional market share for irons and ironing stations, it did not, as the applicant correctly points out, examine the impact on competition of the significant combined shares of SEB-Moulinex in numerous other markets, in particular the deep friers market (where SEB's share rises from 15-25% to 30-40%), the steamers market (where SEB's share rises from 25-35% to 35-40%), the informal meals market (where SEB's share rises from 15-25% to 25-35%) and the espresso machines market (where SEB's share rises from 0-10% to 20-30%). Although the new entity does not attain the dominance threshold in any of these markets, which therefore do not give rise to serious doubts, this significant strength in several markets is capable, having regard to the portfolio effect described above, of reinforcing the dominance which the entity already has on the irons and ironing stations market. 408. Finally, as the applicant correctly observes, the Commission did not apply to the relevant geographical market the relative turnover criterion which it used in its examination of the competition situation in the other geographical markets at the stage of applying the range effect. Whereas the Commission (wrongly) ruled out serious doubts in relation to the relevant product markets in Italy, Spain and Finland, on the ground that those markets where SEB-Moulinex held a dominant position accounted for less than 10% of their total turnover in all the product markets concerned in those geographical markets, the Commission drew no conclusion from the fact that the irons and ironing stations market accounted for 35-40% of their total turnover in the relevant product markets in the United Kingdom and Ireland. 409. Finally, as De'Longhi and the applicant correctly observed at the hearing, the Commission refrained from examining the portfolio effect induced by the concentration and, in particular, the fact that the concentration enabled the strong positions of SEB on the deep frier, portable oven, informal meals, steamer and irons markets to be built onto those of Moulinex on the deep frier, espresso machine and food mixer markets. Likewise, the contested decision does not explain why the fact that the new entity will own, because of the concentration, an array of five brands is not such as to strengthen its market power whereas the Commission took care on numerous occasions to point out, with regard to the geographical markets covered by the commitments, that SEB-Moulinex has two brands whereas its competitors have only one. 410. For those reasons, it must be concluded that the factors set out in paragraphs 125 and 126 of the contested decision did not justify the Commission in ruling out serious doubts as to the irons and ironing stations market in the United Kingdom and Ireland. (c) Conclusion 411. Therefore the contested decision must be annulled in relation to the markets in Italy, Spain, Finland, the United Kingdom and Ireland. The plea that the commitments bring about a sharing of the market for the Moulinex trade mark A - Arguments of the parties 412. At the hearing De'Longhi claimed, for the first time, that the commitments accepted in the contested decision result in a sharing of the market with regard to the Moulinex trade mark. The market sharing is said to be strengthened by the last subparagraph of Section 1(c) of the commitments, which prohibits licensees from exporting products which they market under the Moulinex trade mark in the territories of the other licensees and in those of SEB. 413. According to De'Longhi, such market sharing is not covered by Commission Regulation (EC) No 240/96 of 31 January 1996 on the application of Article 85(3) of the Treaty to certain categories of technology transfer agreements (OJ 1996 L 31, p. 2) and consequently it is prohibited by Article 81(1). 414. As De'Longhi drew the Commission's attention to this problem in the course of the administrative procedure, it considers that the Commission ought to have ascertained whether the commitments gave rise to doubts in that connection. 415. The Commission, supported by France and SEB, contends that De'Longhi's submissions should be dismissed. B - Findings of the Court 416. In contending that the commitments result in sharing of the market with regard to the Moulinex trade mark, De'Longhi is raising a plea which was not raised by the applicant. 417. Whilst the third paragraph of Article 40 of the EC Statute of the Court of Justice and Article 116(3) of the Rules of Procedure do not preclude the intervener from advancing arguments which are new or which differ from those of the party he supports, lest his intervention be limited to restating the arguments advanced in the application, it cannot be held that those provisions permit him to alter or distort the context of the dispute defined in the application by raising new pleas in law (see, to that effect, Case 30/59 De Gezamenlijke Steenkolenmijnen in Limburg v High Authority [1961] ECR 1, 37; Case C-313/90 CIRFS and Others v Commission [1993] ECR I-1125, paragraph 22; Case C-245/92 P Chemie Linz v Commission [1999] ECR I-4643, paragraph 32; Case T-459/93 Siemens v Commission [1995] ECR II-1675, paragraph 21; Joined Cases T-371/94 and T-394/94 British Airways and Others v Commission [1998] ECR II-2405, paragraph 75; Joined Cases T-125/96 and T-152/96 Boehringer v Council and Commission [1999] ECR II-3427, paragraph 183, and Case T-395/94 Atlantic Container Line and Others v Commission [2002] ECR II-875, paragraph 382). 418. Therefore, since an intervener must, under Article 116(3) of the Rules of Procedure, accept the case as he finds it at the time of his intervention and since, under the fourth paragraph of Article 40 of the EC Statute of the Court of Justice, the submissions made in an application to intervene are to be limited to supporting the submissions of one of the main parties, De'Longhi, as an intervener, does not have standing to raise the present plea alleging that the commitments lead to market sharing. Consequently, the present plea raised by De'Longhi must be dismissed as inadmissible. 419. In any event, even if it were admissible (quod non), the plea raised by De'Longhi would be unfounded. 420. It is clear from Article 2(1) of Regulation No 4064/89 that when, in the course of examining the compatibility of a concentration with the common market, the Commission is appraising whether the concentration creates or strengthens a dominant position within the meaning of Article 2(2), it must take into account the need to maintain and develop effective competition within the common market in view of, among other things, the structure of the markets concerned and the actual or potential competition from undertakings located either within or outwith the Community. 421. It is therefore correct that, as De'Longhi submits, the Commission cannot, when applying Regulation No 4064/89, approve commitments which are contrary to the competition rules laid down in the Treaty inasmuch as they impair the preservation or development of effective competition in the common market. In that context, the Commission must appraise the compatibility of those commitments in particular according to the criteria of Article 81(1) and (3) EC (which, in reference to Article 83 EC, constitutes one of the legal bases for Regulation No 4064/89, see Case T-251/00 Lagardère and Canal + v Commission [2002] ECR I-4825, paragraph 85). 422. However, in the present case, it must be observed, first, that the last subparagraph of Section 1(c) of the commitments provides that the licensee or licensees shall undertake to market products bearing the Moulinex trade mark only in the territory or territories licensed to them and for which the products are intended. Contrary to what De'Longhi claims, it does not follow from the terms of that clause that the commitments expressly impose on the licensees of the Moulinex trade mark a ban on exports to the other Member States. The clause can be interpreted as merely obliging the licensees to market products bearing the Moulinex trade mark in the territory licensed to them. A clause obliging a licensee to concentrate the sale of the products covered by the licence on his territory does not, in principle, have as its object or effect the restriction of competition within the meaning of Article 81(1). 423. Second, it should be noted that, even if, as De'Longhi maintains, the clause at issue had to be interpreted as prohibiting the licensees from exporting products bearing the Moulinex trade mark to other Member States, De'Longhi has not shown how, in the present case, that clause would be contrary to Article 81(1). De'Longhi does not explain how, having regard to the national dimension of the relevant product markets and the absence of significant parallel imports between the Member States, the clause at issue might appreciably restrict competition on the relevant market in the Community or significantly affect trade between the Member States within the meaning of Article 81(1). It is settled case-law that even an agreement imposing absolute territorial protection may escape the prohibition laid down in Article 81(1) if it affects the market only insignificantly (Case 5/69 Völk [1969] ECR 295, paragraph 7; Joined Cases 100/80 to 103/80 Musique Diffusion française and Others v Commission [1983] ECR 1825, paragraph 85, and Case C-306/96 Javico [1998] ECR I-1983, paragraph 17). 424. Moreover, De'Longhi does not establish that a licensee of the Moulinex trade mark who is not protected against, at least, active competition from the other licensees in respect of the territory licensed to him would be prepared to accept the risk of marketing products bearing that trade mark together with his own trade mark by way of co-branding. The purpose of the commitments is to enable the licensees, over a transitional period during which they will be entitled to use their own trade mark together with the Moulinex trade mark, to ensure the migration of customers of products with the Moulinex trade mark to their own trade marks, so that the licensees' marks can compete effectively with the Moulinex trade mark after the transitional period, when SEB will again be entitled to use the Moulinex trade mark in the nine Member States concerned. It must be held that, in such a context, the absence of any protection of the licensees against, at least active, competition from the other licensees could undermine the strengthening of the trade marks competing with the Moulinex trade mark and thus adversely affect competition on the relevant market in the territory of the Community. Consequently, in so far as they prohibit active sales, the provisions of the clause at issue cannot be regarded as necessarily restricting competition within the meaning of Article 81(1) (see, to that effect, Case 258/78 Nungesser and Eisele v Commission [1982] ECR 2015, paragraph 57, and Case 262/81 Coditel [1982] ECR 3381, paragraph 15). 425. It follows that De'Longhi's complaint that the commitments result in market sharing is inadmissible and, in any case, unfounded. IV - Fourth plea in law: the Commission erred in law in failing to consider whether the nominal price paid by SEB for the acquisition of Moulinex and the financial aid provided by the French State were not such as to strengthen SEB's position in the markets concerned, to the detriment of competitors Arguments of the parties 426. The applicant submits that the Commission erred in law in failing to consider whether the nominal price paid by SEB for the acquisition of Moulinex and the financial aid provided by the French State were not such as to strengthen SEB's position in the markets concerned, to the detriment of competitors. 427. The applicant states that, in the contested decision, the Commission merely observed, without giving details, that it did not appear, from a preliminary examination of the scheme provided for by the French authorities, that the government assistance envisaged in connection with the court-supervised reorganisation proceedings was a measure which would benefit SEB. In the applicant's opinion, the nominal price paid by SEB was manifestly such as to permit the strengthening of the new entity's position on completion of the transaction. 428. In this connection the applicant observes that, in the judgment in Case T-156/98 RJB Mining v Commission [2001] ECR II-337, the Court annulled the Commission's decision because the Commission failed to consider whether, and to what extent, the new entity's market power could be increased by the nominal acquisition price. Therefore it was incumbent on the Commission to determine whether the acquisition price was such as to strengthen the new entity's position on completion of the transaction, regardless of whether the financial arrangements could be described as aid within the meaning of the Treaty. 429. In the present case, the applicant contends, first, that the Commission was fully informed of the financial conditions of SEB's acquisition plan. In particular, it knew of the obvious disproportion between Moulinex's acquisition price (EUR 15 million) and the true value of the assets acquired (estimated at more than EUR 850 million). The Commission was also aware of the reason for the disproportion, in particular the fact that the French Government had agreed to accept responsibility for redundancy payments, thus reducing Moulinex's debts and enabling SEB, first, to acquire the company at a price which in no way reflected its true value and, second, to have additional funds available for strengthening its market position further. 430. By way of comparison, the applicant notes that: - it originally made an acquisition offer of EUR 100 million for the assets of Krups alone (namely, an amount almost seven times more than that offered by SEB for the whole of the Krups and Moulinex businesses; - by letter of 29 November 2001, it submitted to the Commission an offer which included taking over all Moulinex employees, adding that, if the desired objective of profitability could not be attained, it might reduce the workforce. In the negotiations it transpired that the redundancy of the 3 600 employees not taken over by SEB was likely to entail a total charge of approximately EUR 175 million; - it submitted to the administrators of Moulinex an offer to purchase for EUR 150 000 the assets of Moulinex not acquired by SEB. 431. The applicant considers that the particularly advantageous financial conditions for the acquisition of Moulinex by SEB enabled the latter to benefit from synergies arising from an external expansion without the associated costs. The measures taken by the French authorities clearly benefited SEB in so far as they enabled it to use for its business activity the financial resources which it would normally have had to allocate to the acquisition of Moulinex. 432. Therefore the applicant considers that it was incumbent on the Commission to determine whether the financial conditions for acquiring Moulinex were in themselves, directly or indirectly, capable of strengthening the market position of the new entity SEB-Moulinex, and it was not even necessary to establish whether the financial contribution by the government constituted State aid within the meaning of the Treaty. 433. According to the applicant, it follows that the Commission erred in law in confining itself to a preliminary examination of the impact of the financial measures taken by the French Government and in concluding, on the basis of a superficial study, that the government assistance envisaged in connection with the court-supervised reorganisation proceedings had not benefited SEB. 434. The Commission contends that the plea is manifestly totally unfounded. Findings of the Court 435. In substance, the applicant raises two objections. It complains that the Commission did not consider whether SEB had strengthened its position, first, by paying only a nominal acquisition price and, second, because the French Government had agreed to accept responsibility for redundancy payments. 436. First of all, it must be observed that the price paid by SEB was assessed by the Tribunal de Commerce, Nanterre, in the context of the court-supervised reorganisation proceedings and cannot be challenged. On the basis of the criteria of French law, it took the view that SEB's offer was in the best interest of the creditors. 437. Secondly, the applicant has in no way shown that the price paid by SEB was nominal. At the most, the applicant points to the balance sheet value of Moulinex's assets in 2000 which were acquired by SEB, and the applicant's own offers. 438. However, first, to determine the true value of an undertaking is a complex calculation which also entails subjective appraisals, and the value shown in the balance sheet is not necessarily the true value or the acquisition value. In particular, Moulinex's acquisition value at the end of 2001,when it was faced with liquidation, cannot be considered to be the same as the acquisition value indicated by the consolidated accounts published by Moulinex almost two years earlier. 439. Secondly, the applicant's offers do not at all show that the price offered by SEB was nominal. The applicant offered prices of EUR 100 million, EUR 1 and EUR 150 000. The first offer was for the Krups trade mark rights alone and expressly excluded all liabilities. Therefore it cannot be taken into account for appraising SEB's acquisition offer. Furthermore, the amounts vary considerably according to what was included in the offer and the applicant does not even specify which of the offers relates to the same assets as those acquired by SEB, nor how the applicant's offers can determine the value of the Moulinex assets acquired by SEB. Therefore no appraisal could be made of the price of EUR 15 million paid by SEB to acquire Moulinex. 440. Regarding the complaint that the French Government's acceptance of responsibility for redundancy payments enabled SEB to acquire Moulinex without having to meet all its debts, it must be observed, first, that, contrary to the situation in the case of RJB Mining v Commission, cited above, upon which the applicant relies, the Commission asked the French authorities, by letters of 27 September and 9 November 2001, for information concerning any action by the French Republic in connection with the petition for voluntary liquidation and the acquisition of the Moulinex group. Second, the French Republic replied, by a note of 16 November 2001, that no State assistance to the Moulinex group was being considered and that only redeployment measures of direct benefit to employees were envisaged. Moreover, the file does not show that the French Government made redundancy payments and the applicant has produced no evidence that the French Republic paid debts for which SEB was liable. The Commission observed (and it was not denied) that it would have been absurd for the French Republic to make redundancy payments because in France all undertakings are required by law to take out insurance against the risk of non-payment of sums payable under contracts of employment in the event of a court-supervised reconstruction so that, in the case of insolvency, redundancy payments would have had to be made by the insurers and not the French Republic. In any case, according to the Commission and the French Republic, any potential State assistance does not relate to the assets acquired by SEB and therefore has no effect at all on their value. This is not denied by the applicant. 441. Finally, the Commission cannot be required to conduct a State aid procedure in connection with every concentration procedure, which must be completed within strict time-limits. Although the Court annulled the Commission's decision in the judgment in RJB Mining v Commission, cited above, on the ground that the Commission had not considered whether the level of the purchase price was such as to strengthen the new entity's position, this was by reason of the particular circumstances of that case, where the purchase price itself had been notified as aid by the German authorities. That situation cannot be compared with a concentration of two private companies, such as that in the present case. 442. It follows that this plea in law is unfounded. Costs 443. Under Article 87(3) of the Rules of Procedure, where each party succeeds on some and fails on other heads, or where the circumstances are exceptional, the Court may order that the costs be shared or that each party bear its own costs. In the present case, as both the applicant and the Commission have failed on several heads, each must be ordered to bear its own costs. 444. SEB and De'Longhi, interveners, are ordered to bear their own costs pursuant to the third subparagraph of Article 87(4). On those grounds, THE COURT OF FIRST INSTANCE (Third Chamber) hereby: 1. Annuls, in relation to the markets in Italy, Spain, Finland, the United Kingdom and Ireland, Commission Decision SG (2002) D/228078 of 8 January 2002 not to oppose the concentration between SEB and Moulinex and to declare it compatible with the common market and with the Agreement on the European Economic Area, subject to compliance with the proposed commitments (Case COMP/M.2621 - SEB/Moulinex); 2. Dismisses the remainder of the application; 3. Orders the applicant and the Commission to bear their own costs; 4. Orders SEB SA and De'Longhi SpA to bear their own costs. Lenaerts Azizi Jaeger Delivered in open court in Luxembourg on 3 April 2003. H. Jung K. Lenaerts Registrar President Table of contents Relevant legislation II - 2 Facts II - 4 I - The undertakings concerned II - 4 II - National proceedings II - 4 III - Procedure before the Commission II - 5 The contested decision II - 7 I - The relevant product markets II - 7 II - The relevant geographical markets II - 8 III - Importance of the trade marks II - 8 IV - Competition analysis II - 8 V - Commitments of the parties to the concentration II - 10 VI - State aid II - 14 Procedure and forms of order sought by the parties II - 14 Admissibility II - 16 I - Arguments of the parties II - 16 II - Findings of the Court II - 18 The substance of the case II - 24 I - First plea: breach of essential procedural requirements in that the Commission accepted the belated submission of commitments by SEB II - 25 Arguments of the parties II - 25 Findings of the Court II - 26 II - Second plea: the Commission erred in law in authorizing the concentration without opening phase II II - 31 Arguments of the parties II - 31 Findings of the Court II - 33 III - Third plea: manifest error of assessment in that the commitments were insufficient to overcome the competition problems II - 38 First limb: a commitment to grant a trade mark licence is not by nature capable of overcoming the competition problems caused by the concentration II - 39 A - Arguments of the parties II - 39 B - Findings of the Court II - 40 Second limb: manifest error of assessment by the Commission in accepting commitments of insufficient duration II - 41 A - Arguments of the parties II - 41 B - Findings of the Court II - 43 Third limb: the commitment to provide supplies on the German market and the conditions attached to the option for all licensees to obtain supplies will have the affect of strengthening the position of SEB-Moulinex II - 47 A - Arguments of the parties II - 47 B - Findings of the Court II - 48 Fourth limb: the fact that the Commission agreed that the Moulinex trade mark could be used by different undertakings in the European Union may give rise to collusion between SEB-Moulinex and the licensee or licensees II - 49 A - Arguments of the parties II - 50 B - Findings of the Court II - 50 Fifth limb: the Commission authorized the concentration without commitments relating to markets with serious competition problems II - 51 A - Arguments of the parties II - 51 B - Findings of the Court II - 60 1. Admissibility II - 60 2. Substance II - 61 a) The four stages of the examination II - 63 - The dominance threshold of 40% II - 63 - No significant overlap II - 63 - The position of the merged entity in relation to competitors II - 65 - The range effect II - 67 b) The countries not covered by the commitments II - 73 - Norway II - 73 - Spain II - 73 - Finland II - 75 - Italy II - 77 - United Kingdom and Ireland II - 79 c) Conclusion II - 81 The plea that the commitments bring about a sharing of the market for the Moulinex trade mark II - 81 A - Arguments of the parties II - 81 B - Findings of the Court II - 82 IV. Fourth plea in law: the Commission erred in law in failing to consider whether the nominal price paid by SEB for the acquisition of Moulinex and the financial aid provided by the French State were not such as to strengthen SEB's position in the markets concerned, to the detriment of competitors II - 84 Arguments of the parties II - 84 Findings of the Court II - 86 Costs II - 87 1: Language of the case: French.