Information;Judgment — ECLI:EU:T:2023:261
Date: 2023-05-17
Language of the case: German
Court formation: Fourth Chamber, Extended Composition
Subject matter: Competition;Concentrations between undertakings
Procedure: Action for annulment - unfounded
Origin: Germany

Judgment of the General Court (Fourth Chamber, Extended Composition) of 17 May 2023 – EnergieVerbund Dresden v Commission (Case T‑317/20) (1) (Competition – Concentrations – German electricity market – Decision declaring the concentration compatible with the internal market – Action for annulment – Standing to bring proceedings – Admissibility – Obligation to state reasons – Definition of ‘single concentration’ – Right to effective judicial protection – Right to be heard – Definition of the market – Analysis period – Analysis of market power – Decisive influence – Manifest errors of assessment – Duty of diligence) 1. Judicial proceedings – Intervention – Objection of inadmissibility not raised by the defendant – Inadmissibility – Plea in law based on the applicant’s lack of standing to bring proceedings – Absolute bar to proceeding – To be considered of the Court’s own motion (Statute of the Court of Justice, Arts 40, fourth para., and 53, first para.; Rules of Procedure of the General Court, Arts 129 and 142(3)) (see paragraphs 25, 26) 2. Action for annulment – Natural or legal persons – Measures of direct and individual concern to them – Direct concern – Criteria – Commission decision declaring a concentration compatible with the internal market – Action brought by an undertaking competing with the parties to the operation – Decision liable to bring about an immediate change in the state of the market concerned – Direct concern to the applicant (Art. 263, fourth para., TFEU) (see paragraph 29) 3. Action for annulment – Natural or legal persons – Measures of direct and individual concern to them – Individual concern – Criteria – Commission decision declaring a concentration compatible with the internal market – Action brought by an undertaking competing with the parties to the operation – Undertaking having participated actively in the administrative procedure and proved specific circumstances characterising the conditions affecting its market position – Admissibility (Art. 263, fourth para., TFEU) (see paragraphs 30, 31, 37, 41-45) 4. Concentrations between undertakings – Examination by the Commission – Adoption of a decision finding a concentration compatible with the internal market without opening Phase II – Condition – No serious doubts – Economic assessments – Discretion – Judicial review – Limits – Manifest error of assessment (Art. 263 TFEU; Council Regulation No 139/2004, Arts 2 and 6(1)) (see paragraphs 47-52, 198-201, 209, 350) 5. EU law – Definition – Interpretation – Taking account of a specific concept appearing only in the preamble to the act in question – Admissibility within the limits of the wording of the actual provisions of the act (Council Regulation No 139/2004, recital 20 and Art. 3(1)) (see paragraphs 74-78) 6. Concentrations between undertakings – Examination by the Commission – Single concentration – Definition – Conditions – Interdependent operations conferring on one or more undertakings direct or indirect economic control over the activities of one or more other undertakings – Acquisition by independent undertakings of the control of different targets in an asset swap – Not included – No functional link between the operations at issue (Council Regulation No 139/2004, recital 20 and Art. 3(1)) (see paragraphs 79-85, 89-93, 96-100) 7. Concentrations between undertakings – Assessment of the compatibility with the internal market – Creation or reinforcement of a dominant position significantly hindering effective competition in the internal market – Assessment of the anticompetitive effects of the transaction – Operations which are part of a complex asset swap with a relationship of interdependence making it possible to anticipate the likely effects on the market of each concentration – Application of the rule of priority – Not included – Overall assessment of all the evidence incumbent on the Commission (Council Regulation No 139/2004, Art. 2(3)) (see paragraphs 106-120) 8. Acts of the institutions – Statement of reasons – Obligation – Scope – Decision to apply rules on concentrations between undertakings – Decision authorising a concentration operation (Art. 296 TFEU; Council Regulation No 139/2004) (see paragraphs 124-128, 138, 139, 144) 9. Concentrations between undertakings – Administrative procedure – Obligations of the Commission towards qualified third parties – Right to be heard – Scope (Council Regulation No 139/2004, Art. 18(4); Commission Regulation No 802/2004, Arts 11(c) and 16(1)) (see paragraphs 153-164) 10. Concentrations between undertakings – Examination by the Commission – Commission decision declaring a concentration compatible with the internal market – Requirements arising from the principle of effective judicial protection – Adoption of any appropriate publicity necessary to enable interested third parties to the concentration to know the reasons behind it – Publication of a non-confidential version of that decision – Whether sufficient (Arts 15, 296 and 297(2), TFUE; Charter of Fundamental Rights of the European Union, Art. 47; Council Regulation No 139/2004, Art. 6(1)(b)) (see paragraphs 175-188) 11. Concentrations between undertakings – Assessment of the compatibility with the internal market – Creation or reinforcement of a dominant position significantly hindering effective competition in the internal market – Examination by the Commission – Prospective analysis – Definition of the period of analysis – Criteria (Council Regulation No 139/2004, Arts 2(2) and (3)) (see paragraphs 230-233) 12. Concentrations between undertakings – Examination by the Commission – Assessment of the compatibility with the internal market – Compliance with the Guidelines adopted by the Commission – Consideration of the elements of assessment mentioned in those guidelines – Discretion of the Commission – Examination of the market share levels – Judicial review (Council Regulation No 139/2004, Art. 2; Commission Notice 2004/C 31/03, points 14, 16, 19 to 21 and 27) (see paragraphs 270, 348, 349) 13. Concentrations between undertakings – Examination by the Commission – Account taken of data provided by the parties to the concentration – Manifest error of assessment – Burden of proof (Council Regulation No 139/2004) (see paragraphs 276-279) 14. Concentrations between undertakings – Assessment of the compatibility with the internal market – Creation or reinforcement of a dominant position significantly hindering effective competition in the internal market – Assessment of the anticompetitive effects of the transaction – Evidence – High market share (Council Regulation No 139/2004, Art. 2(3); Commission Notice 2004/C 31/03, point 17) (see paragraphs 281-283) 15. Concentrations between undertakings – Assessment of the compatibility with the internal market – Creation or reinforcement of a dominant position significantly hindering effective competition in the internal market – Assessment of the anticompetitive effects of the transaction – Acquisition of a competitor’s minority shareholding – Criteria for assessment – Common shareholding (Council Regulation No 139/2004, Art. 2(3) and 3(2)) (see paragraphs 366-387) 16. Concentrations between undertakings – Examination by the Commission – Economic assessments – Discretion – Duty of diligence – Scope (Council Regulation No 139/2004) (see paragraphs 399-404) Operative part The Court: 1. Dismisses the action; 2. Orders EnergieVerbund Dresden GmbH to bear its own costs and to pay those incurred by the European Commission, E.ON SE and RWE AG; 3. Orders the Federal Republic of Germany to bear its own costs. 1 OJ C 240, 20.7.2020.