Judgment — ECLI:EU:T:2000:84
Date: 2000-03-22
Language of the case: English
Court formation: First Chamber, Extended Composition
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices;Dominant position
Concepts: General;Relevant market
Procedure: Action for annulment - inadmissible

Summary of the Judgment 
1. Actions for annulment — Actionable measures — Measures producing binding legal 
effects — Assessment of those effects in the light of the substance of the measure — 
Commission decision declaring a notified operation compatible with the common 
market — Decision in principle without adverse effect — Obligation of the Court of 
First Instance to examine the possible binding legal effects of the grounds 
(EC Treaty, Art. 173 (now, after amendment, Art. 230 EC)) 
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SUMMARY — JOINED CASES T-125/97 AND T-127/97 
2. Actions for annulment — Actionable measures — Measures producing binding legal 
effects — Finding by the Commission of a dominant position — No such effects 
(EC Treaty, Art. 86 (now Art. 82 EC) and Art. 173 (now, after amendment, Art. 230 
EC)) 
3. Competition — Concentrations between undertakings —· Examination by the Com­
mission — Analysis of the definition of the relevant market and operators on it in a 
decision confirming compatibility — Whether permissible 
(Council Regulation No 4064/89, Art. 8(2) and (3)) 
4. Actions for annulment — Actionable measures — Measures producing binding legal 
effects — Commitment by an undertaking in competition proceedings to respect 
certain specific obligations — Requirement that it produce binding legal effects 
(EC Treaty, Arts 85 and 86 (now Arts 81 EC and 82 EC) and Art. 173 (now, after 
amendment, Art. 230 EC); Council Regulation No 4064/89, Art. 8(2)) 
1. Any measure which produces binding 
legal effects such as to affect the 
interests of an applicant by bringing 
about a distinct change in his legal 
position is an act or decision which 
may be the subject of an action under 
Article 173 of the Treaty (now, after 
amendment, Article 230 EC) for a 
declaration that it is void. To determine 
whether an act or decision produces 
such effects, it is necessary to look to its 
substance. It follows that the mere fact 
that a Commission decision declares a 
notified concentration operation com­
patible with the common market and 
thus, in principle, does not have an 
adverse effect on the applicants does 
not dispense the Court from examining 
whether the contested findings have 
binding legal effects such as to affect 
the applicants' interests. 
(see paras 77-79) 
2. A mere finding of a dominant position 
by the Commission, even if likely in 
practice to influence the policy and 
future commercial strategy of the 
undertaking concerned, does not have 
binding legal effects so that the appli­
cants' challenge to its merits is not 
admissible. 
It should first be observed in that 
regard that the obligations imposed 
on undertakings by Article 86 of the 
Treaty (now Article 82 EC) do not 
require a finding in a Commission 
decision that those undertakings are 
in a dominant position but derive 
directly from that Article. Where an 
undertaking is in a dominant position it 
is obliged, where appropriate, to mod­
ify its conduct accordingly so as not to 
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COCA-COLA V COMMISSION 
impair effective competition on the 
market regardless of whether the Com­
mission has adopted a decision to that 
effect. 
Second, such a finding is the outcome 
of an analysis of the structure of the 
market and of competition prevailing 
at the time the Commission adopts 
each decision. The conduct which the 
undertaking held to be in a dominant 
position subsequently comes to adopt 
in order to prevent a possible infringe­
ment of Article 86 of the Treaty is thus 
shaped by the parameters which reflect 
the conditions of competition on the 
market at a given time. Moreover, in 
the course of any decision applying 
Article 86 of the Treaty, the Commis­
sion must define the relevant market 
again and make a fresh analysis of the 
conditions of competition which will 
not necessarily be based on the same 
considerations as those underlying the 
previous finding of a dominant posi­
tion. 
The fact that, in the event of such a 
decision, the Commission may be influ­
enced by that finding does not mean 
that, for that reason alone, that finding 
has binding legal effects. The under­
taking concerned is not deprived of its 
right to bring an action for annulment 
before the Court of First Instance to 
challenge any Commission decision 
finding its conduct to be an abuse. 
As regards the risk that the undertaking 
concerned will have fines imposed on it 
for breach of competition rules, it 
should be borne in mind that it is not 
the mere finding of a dominant posi­
tion at a given time that may, possibly, 
give rise to that risk, but the under­
taking's resorting to conduct which 
constitutes an abuse of that position. 
As regards the effects which that find­
ing may have on the application of the 
competition rules by national courts, it 
must be borne in mind that, in any 
event, the possibility that a national 
court applying Article 86 of the Treaty 
directly in the light of the decision­
making practice of the Commission 
might reach the same finding of a 
dominant position does not mean that 
the contested finding has binding legal 
effects. A national court which has to 
assess action taken after a decision 
finding a dominant position is not 
bound by previous findings of the 
Commission. There is nothing to pre­
vent it from concluding that an under­
taking is no longer in a dominant 
position, contrary to the Commission's 
finding at the time when the contested 
decision was adopted. 
(see paras 80-85, 91-92) 
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SUMMARY — JOINED CASES T-125/97 AND T-127/97 
3. Where the Commission intends to 
declare a notified operation compatible 
with the common market it is bound, 
in the light of the particular character­
istics of each operation, to provide 
sufficient reasons for its decision in 
order to permit third parties, where 
necessary, to challenge the merits of its 
analysis in the Community courts. 
Whilst it is true that under the Com­
mission's decision-making practice it 
generally only makes a detailed analy­
sis of the definition of the relevant 
market and those operating on it if it 
intends to decide that an operation is 
incompatible pursuant to Article 8(3) 
of Regulation No 4064/89, there is 
nothing to prevent it, in view of the 
obligation to state reasons referred to 
above, from carrying out such an 
analysis when it adopts a decision that 
an operation is compatible, particularly 
if it is a decision taken under Arti­
cle 8(2) of that regulation. 
(see para. 90) 
4. An undertaking to respect certain spe­
cific obligations, taken by an under­
taking in the course of proceedings 
initiated by the Commission on the 
basis of Articles 85 and 86 of the 
Treaty (now Articles 81 EC and 82 
EC), can be the subject of an action for 
annulment if it is clear from an analysis 
of its substance that it seeks to produce 
binding legal effects. The argument 
that the applicants' challenge to the 
legality of the undertaking is not 
admissible on the ground that it was 
not the subject of a formal condition 
within the meaning of Article 8(2) of 
Regulation No 4064/89 must be 
rejected. 
In order to determine whether the 
undertaking in question produces bind­
ing legal effects, it is necessary to 
consider whether the declaration that 
the notified operation is compatible 
was affected by it in the sense that, in 
the event of breach of its terms, the 
Commission could revoke its decision. 
(see paras 4, 96-97) 
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