Opinion of the Advocate General — ECLI:EU:C:2007:255
Date: 2007-04-26
Language of the case: English
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices;Dominant position
Procedure: Action for annulment;Appeal - unfounded
Origin: Netherlands

Summary of the Judgment 1. Competition – Concentrations – Competence of the Commission – Determination, for the whole duration of the proceedings, at a date closely related to the notification (Council Regulation No 4064/89, Arts 1(2) and 3, 5 and 8(2), second para.) 2. Competition – Concentrations – Examination by the Commission – Proportionality of conditions and obligations imposed on undertakings for the purposes of making the notified operation compatible with the common market (Council Regulation No 4064/89, Arts 2 and 8(2)) 3. Competition – Concentrations – Examination by the Commission – Duty to take account of decisions of the national authorities – None) (Council Regulation No 4064/89) 1. The competence of the Commission to make findings in relation to a concentration in the context of Regulation No 4064/89 on the control of concentrations between undertakings must be established, as regards the whole of the proceedings, at a fixed time. Having regard to the importance of the obligation of notification in the system of control put in place by the Community legislature, that time must necessarily be closely related to the notification of the concentration. Both the concern for legal certainty, which implies that the authority having competence to examine a concentration must be able to be identified in a way which is foreseeable, and the need for speed, which characterises the general scheme of Regulation No 4064/89 and which requires the Commission to comply with strict time-limits for the adoption of the final decision, failing which the operation is deemed compatible with the common market, require that, where the Commission has established, in relation to a particular concentration, its competence in the light of the criteria laid down under Articles 1(2) and (3) and 5 of Regulation No 4064/89, that competence cannot be challenged at any time or be in a state of constant flux. Thus, whilst it goes without saying that the Commission loses its competence to examine a concentration where the undertakings concerned completely abandon the proposed concentration, the position is otherwise where the parties do no more than propose partial amendments to the draft. Proposals of that kind cannot have the effect of requiring the Commission to re-examine its competence without allowing the undertakings concerned significantly to disturb the course of the proceedings and the effectiveness of the control which the legislature sought to put in place by obliging the Commission to verify its competence on a regular basis to the detriment of the examination of the substance of the case. That interpretation is supported by the wording of the second subparagraph of Article 8(2) of Regulation No 4064/89, which clearly shows that the commitments proposed or adopted by undertakings are not only matters which the Commission must take into account in its examination of the substantive question, that is to say, that of the compatibility or incompatibility of the concentration with the common market, but also, conversely, that those commitments cannot strip the Commission of its competence, since that is a matter which will have been determined in the first phase of the proceedings. (see paras 38-43) 2. The substantive rules of Regulation No 4064/89 on the control of concentrations between undertakings, and in particular Article 2 thereof, confer on the Commission a certain discretion, especially with respect to assessments of an economic nature. Consequently, review by the Community judicature of the exercise of that discretion, which is essential for defining the rules on concentrations, must take account of the discretionary margin implicit in the provisions of an economic nature which form part of the rules on concentrations. In particular, it is necessary, when reviewing the proportionality of conditions or obligations which the Commission may, by virtue of Article 8(2) of Regulation No 4064/89, impose on the parties to a concentration, not to determine whether the concentration still has a Community dimension after those conditions or obligations have been complied with, but to be satisfied that those conditions and those obligations are proportionate to and would entirely eliminate the competition problem that has been identified. (see paras 53-54) 3. Having regard to the clear division of powers on which Regulation No 4064/89 on the control of concentrations between undertakings is based, decisions taken by the national authorities cannot bind the Commission in proceedings for the control of concentrations. (see para. 56)