Opinion of the Advocate General — ECLI:EU:C:2024:264
Date: 2024-03-21
Language of the case: English
Subject matter: Competition;Concentrations between undertakings
Procedure: Action for annulment - unfounded;Action for annulment - successful;Action for annulment - inadmissible;Appeal - successful

summary’) and paragraphs 72 to 88 of the 2001 Green Paper. 53 Paragraph 53 (emphasis added). 54 This point is further stressed by the reference in the 2001 Green Paper to the lack of definition of ‘making a concentration known to a Member State’ but that ‘it appears natural to use the date of a national notification as the triggering date in Member States where a notification requirement exists’. Again, the Commission is clearly concerned with cases that come to the attention of the national authorities because they are subject to their national merger control systems. 55 See, in particular, paragraphs 93, 95 and 99 of the 2001 Green Paper. 56 Emphasis added. 57 See paragraph 138 of the 2009 Staff Working Paper: ‘on the issue of whether or not a Member State should be able to make or join a referral without having jurisdiction in the case, five thought that it should be allowed while nine thought that it should not. This does raise the question of whether or not a Member State should be able to refer a case when its jurisdiction is not triggered but where the activity of the parties does have an effect in that Member State’ (emphasis added). 58 See paragraphs 133, 140 to 142 and 144 of the 2009 Staff Working Paper (emphasis added). See, similarly, paragraph 86 of the 2001 Green Paper. 59 See, in particular, Council reports of 7 November 1988 (9114/88), 10 November 1988 (9265/88) and 8 December 1988 (10054/88). 60 Draft minutes of the 1 339th Council meeting on 18 July 1989 (8016/89 PV/ CONS 47), p. 2. 61 In primis, EEC Council Regulation No 17 of 6 February 1962: First Regulation implementing Articles 85 and 86 of the [EEC] Treaty (OJ, English Special Edition 1959-1962 (I), p. 87). 62 Commission Amended proposal for a Council Regulation (EEC) on the control of concentrations between undertakings (COM(88) 97 final) (OJ 1988 C 130, p. 4). Article 22 of that proposal, entitled ‘Exclusive application of this Regulation’, read as follows: ‘Regulations No 17, (EEC) No 1017/68, (EEC) No 4056/86 and (EEC) No 3975/87 shall not apply to concentrations falling within the scope of this Regulation’. 63 See Council, Note de la Présidence au Conseil, 7 April 1989 (5857/89 (RC 9)), annex, p. 4; reports of 12 April 1989 (6267/89, RC 12); draft minutes of the 1 339th Council meeting on 18 July 1989 (8016/89 PV/ CONS 47), p. 13; reports of 9 November 1989, (9672/89 (RC 41)), p. 3. See, also, letter of Sir Leon Brittan to the Council (SG (89) D/5429) of 24 April 1989, p. 2. 64 See Report from the Commission to the Council on the implementation of the Merger Regulation of 28 July 1993 (COM(93) final, p. 14) (‘the 1993 Report’); Commission, Note from G. Drauz to the Legal Service (COMP/HT.60), Council Working Group, 6 June 2003 (11430), paragraph 4. 65 See Sir Leon Brittan, Competition Policy and Merger Control in the Single European Market, Grotius, 1991, pp. 33 and 49. Similarly, Jones, C., ‘Procedures and Enforcement under EEC Merger Regulation, in Hawk, B. (ed.), Annual Proceedings of the Fordham Corporate Law Institute, 1990, p. 476. 66 See Commission, the 1993 Report, p. 7. See, also, Communication from the Commission to the Council and to the European Parliament regarding the revision of the Merger Regulation (COM(96) 313 final, p. 5). See, also, Levy, N., Rimsa, A. and Buzatu, B., ‘The jurisdictional reach of EC merger control: Striking the right balance’, in Kokkoris, I. and Levy, N., Research Handbook on Global Merger Control, Edward Elgar Publishing, 2023, p. 219: ‘No workable system of merger control can capture every transaction capable of affecting competition in a given jurisdiction’. 67 See Council, Résultats des travaux du Groupe des questions économiques (contrôle des concentrations), 8 March 1989 (5770/89 RC 8) p. 4. See, also, letter of Sir Leon Brittan to the Council, 30 March 1989 (SG (89) D/4008), p. 2. 68 See Council, Report to the Committee of Permanent Representatives, 9 December 1988, (10189/89 RC 36), p. 8; and avis du service juridique, 11 July 1989 (7896/89 JUR 98 RC 24), p. 10. See also Commission, the 1993 Report, p. 14. 69 See Sir Leon Brittan, footnote 65, op. cit., pp. 39, 48 and 53. 70 See Council, avis du service juridique, 11 July 1989 (7896/89 JUR 98 RC 24), p. 4. 71 See points 201 and 208 of this Opinion. 72 That number reflects all of the EU Member States (with the exception of Luxembourg) and the EEA/EFTA States (Iceland and Norway) that currently have a national merger control regime. 73 On the contrary, the adoption of the EUMR was intended to enhance the assets of the ECMR. See Commission, Note from G. Drauz to the Legal Service (COMP/HT.60), Council Working Group, 6 June 2003 (11430), p. 7; and the 2003 Commission Proposal, p. 10. 74 See above, footnotes 5 and 6. 75 OJ 2005 C 56, p. 2. 76 See, in particular, paragraphs 33, 45, 47 and 50 of the notice. 77 See paragraph 45 of the notice. 78 Paragraphs 2 and 79 of the 2014 White Paper. 79 Paragraphs 69 and 70 of the 2014 White Paper. 80 Paragraph 61 of the 2014 White Paper. 81 Paragraphs 21, 63 and 69 of the 2014 White Paper. 82 Available on the Commission website. See, in particular, Sections A.1, B.2 and B.3. 83 Paragraph 139 of the judgment under appeal. 84 Previously Articles 87 and 235 EEC. 85 Paragraphs 119 and 120 of the judgment under appeal. 86 See seventh recital of the ECMR and recital 7 of the EUMR. 87 See, inter alia, Council, Résultats des travaux du Groupe des questions économiques (contrôle des concentrations), 29 May 1989 (7752/89 RC 20), p. 5; Résultats des travaux du Groupe des questions économiques (contrôle des concentrations), 22 June 1989 (7827/89 RC 22), p. 1, Annex II, p. 3; and avis du service juridique, 11 July 1989 (7896/89 JUR 98 RC 24), p. 4. 88 Then Article 38 EEC and Annex II to the EEC Treaty. 89 In essence, Article 352(1) TFEU permits the Council to adopt appropriate measures where an action by the Union proves necessary, within the framework of the policies defined in the Treaties, to attain one of the objectives set out in the Treaties, whilst the Treaties have not provided the necessary powers. 90 On this issue, see, also, Dashwood, A., Community Report, XIVth FIDE Congress, Madrid, 2010. 91 Paragraphs 121 to 124 of the judgment under appeal. Emphasis added. 92 Paragraphs 125 and 126 of the judgment under appeal. 93 Article 4(4) EUMR permits the parties to a merger to ask the Commission to refer the examination, in whole or in part, of a concentration that has a Community dimension to the authorities of a Member State where that concentration ‘may significantly affect competition in a market within a Member State which presents all the characteristics of a distinct market’. In turn, Article 9 EUMR enables the Commission, in certain circumstances, to refer a concentration notified to it to the competent authorities of the Member States concerned. 94 Paragraphs 127 to 129 of the judgment under appeal. 95 Paragraph 130 of the judgment under appeal. 96 Emphasis added. 97 Paragraph 130 of the judgment under appeal. Emphasis added. 98 Emphasis in those provisions added. 99 See points 100, 103 and 105 of this Opinion. As regards, more specifically, the EUMR, see also recital 12 thereof. This evolution, also due to the progressively smaller scope for the use of the referral mechanism, has been stressed in legal scholarship: see, for instance, Albors‑Llorens, A., Goyder, D.G. and Goyder, J., Goyder’s EC Competition Law, 5th edition, Oxford University Press, 2009, p. 431; and Frenz, W., Handbook of EU Competition Law, Springer, 2016, p. 1308. 100 Paragraph 131 of the judgment under appeal. 101 Paragraph 132 of the judgment under appeal. Emphasis added. 102 Emphasis added. I shall come back to this issue in points 155 and 156 of this Opinion. 103 Indeed, the procedure has been validly triggered and, if anything, a joint referral request by several Member States enhances the consistency of the system: if the request is accepted, all the Member States concerned can ‘no longer apply their national legislation on competition to the concentration [in question]’ (Article 22(3) EUMR), including their provisions on anticompetitive agreements and abuses of dominance to the merger in question. See, on the latter point, paragraph 134 of the judgment under appeal. 104 See, extensively, points 206 to 214 of this Opinion. 105 Paragraph 133 of the judgment under appeal. 106 But see points 152 to 162 of this Opinion. 107 Paragraph 134 of the judgment under appeal. 108 Paragraphs 135 and 136 of the judgment under appeal. 109 Indeed, (i) if a Member State without a national merger control system submits a referral request, the standstill obligation laid down in Article 7 EUMR applies to the merger in question regardless of whether that merger falls within the scope of one or more other national merger control systems, and (ii) if a Member State submits a referral request, the standstill obligation laid down in Article 7 EUMR applies to the merger in question by virtue of the ECMR, and thus regardless of whether that Member State’s legislation provides for an equivalent obligation. 110 As ESA rightly pointed out in its submissions, the EUMR is an act that is, under Article 57 of the EEA Agreement, also applicable in the ‘EEA EFTA States’ (Iceland, Liechtenstein and Norway); Liechtenstein does not have a national merger control regime. 111 That is notoriously the case of the United Kingdom, which was still a Member State of the European Union when the ECMR and the EUMR were adopted. 112 For a good overview on those specific aspects of the system, see the ‘Merger Notification and Procedures Templates’ submitted by many EU Member States to the International Competition Network (available on the network’s website). 113 Paragraph 137 of the judgment under appeal. 114 Judgment of 15 December 1999, Kesko v Commission (T‑22/97, EU:T:1999:327, paragraph 84). 115 Paragraph 138 of the judgment under appeal. 116 See points 129 to 133 of this Opinion. 117 See, in particular, the third subparagraph of Article 22(2) EUMR: ‘All national time limits relating to the concentration shall be suspended’. Emphasis added. 118 See, again, the third subparagraph of Article 22(2) EUMR: ‘until, in accordance with the procedure set out in this Article, it has been decided where the concentration shall be examined’. Emphasis added. 119 Emphasis added. 120 As regards the third subparagraph of Article 22(2) EUMR, see paragraphs 133 and 150 of the judgment under appeal. However, the General Court deals only with the terms ‘all national time limits’ and not with the terms ‘until … decided where the concentration shall be examined’. As regards recital 15 (‘also competent’), see paragraphs 149 to 151 of the judgment under appeal. 121 Emphasis added. 122 See also the similar expressions in, for example, the German (‘für’), Greek (‘για λογαριασμό’), Spanish (‘en nombre de’), French (‘au nom d[e]’), and Italian (‘per conto di’) versions of the regulation. Emphasising that the Commission appears to act under a sort of delegation of the powers held by the relevant national authority: Cohen-Tanugi, C., et al., La pratique communautaire du contrôle des concentrations, De Boeck Université, 1995, p. 56. Similarly, Sir Leon Brittan, footnote 65, op. cit., p. 52. 123 Emphasis added. The provision was only subject to a minor amendment in 1997 and then repealed by the EUMR, since it was no longer consistent with the new one-stop-shop function of Article 22 EUMR. See Cook, J. and Kerse, C., EC Merger Control, 5th edition, Sweet&Maxwell, 2005, p. 343. 124 The fact that the limited powers of the Commission implied a limited scope for the referral mechanism set out in then Article 22 ECMR was emphasised by, for example, Cook, J. and Kerse, C., EEC Merger Control – Regulation 4064/89, 1st edition, Sweet&Maxwell, 1991, pp. 60 and 61. 125 Indeed, amending the EUMR would normally require unanimity (because of the legal basis under Article 352 TFEU), but Article 1(5) EUMR allows the Council to amend the thresholds ‘acting by a qualified majority’. 126 See also recital 9 of the EUMR which states ‘… The Commission should report to the Council on the implementation of the applicable thresholds and criteria so that the Council, acting in accordance with Article 202 of the Treaty, is in a position to review them regularly … in the light of the experience gained; this requires statistical data to be provided by the Member States to the Commission to enable it to prepare such reports and possible proposals for amendments. The Commission's reports and proposals should be based on relevant information regularly provided by the Member States’ (emphasis added). In the light of that recital, I understand Article 1(4) and (5) of the EUMR as allowing for the use of the simplified procedure at any point following the submission of the report due by 1 July 2009. However, I acknowledge that the language of the provision leaves room for ambiguity, which could lead one to believe that the simplified procedure was only applicable for the amendments proposed following the adoption of the 2009 report. Nevertheless, even setting aside the specific wording of recital 9 of the EUMR, the idea that this provision is applicable only once appears illogical. Indeed, with the passage of time, the necessity for adjusting the thresholds becomes even more apparent. 127 Emphasising the temporary nature of the mechanism, Downes, T.A. and Ellison, J., The legal control of mergers in the EC, Blackston, 1991, pp. 63 to 65. 128 Sir Leon Brittan, footnote 65, op. cit., p. 42: ‘This provision is narrowly defined and would not permit the Commission to deal with mergers below the threshold on a general basis, even if it were inclined to evade the spirit of the threshold provision in this way’ (emphasis added). See, also, Ibid., ‘The Law and Policy of Merger Control in the EEC’, European Law Review, 1990, p. 245. 129 See, in particular, recital 10 of the 1997 Regulation and recitals 11, 12 and 14 of the EUMR. 130 As stated in paragraph 142 of the judgment under appeal. 131 Emphasis added. 132 Emphasis added. 133 See, inter alia, judgment of 4 March 2020, Marine Harvest v Commission (C‑10/18 P, EU:C:2020:149, paragraph 108 and the case-law cited). See also judgment of 12 December 2012, Electrabel v Commission (T‑332/09, EU:T:2012:672, paragraph 246). 134 That recital read: ‘Whereas a new legal instrument should therefore be created in the form of a Regulation to permit effective monitoring of all concentrations from the point of view of their effect on the structure of competition in the Community and to be the only instrument applicable to such concentrations’. 135 According to that provision, notwithstanding the Commission’s exclusive competence to review the mergers falling under the scope of the EUMR, ‘Member States may take appropriate measures to protect legitimate interests other than those taken into consideration by this Regulation and compatible with the general principles and other provisions of Community law’. 136 See, to that effect, judgment of 7 September 2017, Austria Asphalt (C‑248/16, EU:C:2017:643, paragraph 21). See, also, judgments of 25 March 1999, Gencor v Commission (T‑102/96, EU:T:1999:65, paragraph 314), and of 22 September 2021, Altice Europe v Commission (T‑425/18, EU:T:2021:607, paragraph 299). 137 See judgment of 22 June 2004, Portugal v Commission (C‑42/01, EU:C:2004:379, paragraph 50), and recital 8 of the EUMR. 138 See recital 9 of the EUMR. 139 See, in particular, paragraph 140 of the judgment under appeal. 140 Emphasis added. In fact, legal scholarship also referred to the ECMR as an instrument pursuing several objectives: see, for example, Navarro Varona et al., Merger Control in the EU: Law, Economics and Practice, 1st edition, Oxford University Press, 2001, pp. 1 to 5. 141 See the references to the principle of subsidiarity in recitals 6, 8, 11 and 14. See also recital 8 in fine: ‘concentrations not covered by this Regulation come, in principle, within the jurisdiction of the Member States’. 142 See the references to the one-stop-shop principle in recitals 8 and 11, to the Commission’s ‘exclusive competence’ in recital 17 and to the ensuing limits for Member States’ action in recitals 18 and 19. 143 See the references to efficiency in recitals 14, 15 and 16, to predictability in recital 15, and to legal certainty in recitals 11, 25 and 34. See also the 1996 Green Paper, paragraph 29. In legal scholarship, see, inter alia, Blaise, J.B., ‘Concurrence – Contrôle des opérations de concentration’, Revue trimestrielle de droit européen, 1990, p. 743; and Venit, J., ‘The “merger” control regulation: Europe comes of age … or Caliban’s dinner’, Common Market Law Review, 1990, p. 44. 144 Similarly, Whish, R. and Bailey, D., Competition Law, 8th edition, Oxford University Press, 2018, pp. 832 and 833. 145 See, generally, Irarrazabal Philippi, F., ‘Merger control procedure’, Global Dictionary of Competition Law, Concurrences, Art. N° 12342. 146 Judgment of 22 June 2004, Portugal v Commission (C‑42/01, EU:C:2004:379, paragraphs 51 and 53). See, also, Opinion of Advocate General Kokott in Cementbouw Handel & Industrie v Commission (C‑202/06 P, EU:C:2007:255, point 44). 147 See judgment of 22 June 2004, Portugal v Commission (C‑42/01, EU:C:2004:379, paragraph 50). See also recital 8 (‘concentrations not covered by this Regulation come, in principle, within the jurisdiction of the Member States’) and recital 9 (‘the scope of application of this Regulation should be … limited by quantitative thresholds in order to cover those concentrations which have a Community dimension’). 148 See above, footnote 141. 149 Sir Leon Brittan, ‘Subsidiarity in the Constitution of the EC’, Robert Schuman Lecture, European University Institute, 1992, p. 12. 150 Article 5(3), first paragraph, TEU: ‘Under the principle of subsidiarity … the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level’. 151 See Commission Implementing Regulation (EU) 2023/914 of 20 April 2023 implementing Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings and repealing Commission Regulation (EC) No 802/2004 (OJ 2023 L 119, p. 22). 152 Regulation (EU) 2022/1925 of the European Parliament and of the Council of 14 September 2022 on contestable and fair markets in the digital sector and amending Directives (EU) 2019/1937 and (EU) 2020/1828 (OJ 2022 L 265, p. 1). 153 Judgment of 13 July 2023, Commission v CK Telecoms UK Investments (C‑376/20 P, EU:C:2023:561, paragraph 72 and the case-law cited). 154 As stressed by all scholarship; see, for example, Bushell, G., ‘Chapter II’, in Jones, C. and Weinert, L. (eds), EU Competition Law, Vol. II, Book One, Edward Elgar Publishing, 2021, p. 41. 155 See, recently, judgment of 22 November 2022, Commission v Council (Accession to the Geneva Act) (C‑24/20, EU:C:2022:911, paragraph 83). 156 That is a fortiori true if one takes the view, as I do, that the simplified procedure provided for in Article 1(4) and (5) EUMR for the amendment of those thresholds is still applicable. See footnotes 125 and 126 above. 157 See, among many others, judgment of 24 November 1992, Poulsen and Diva Navigation (C‑286/90, EU:C:1992:453, paragraph 28). 158 Judgments of 6 September 2017, Intel v Commission (C‑413/14 P, EU:C:2017:632, paragraphs 40 to 47), and of 25 March 1999, Gencor v Commission (T‑102/96, EU:T:1999:65, paragraph 243). 159 See Opinion of Advocate General Darmon in Joined Cases Ahlström Osakeyhtiö and Others v Commission (89/85, 104/85, 114/85, 116/85, 117/85 and 125/85 to 129/85, EU:C:1988:258, point 57). 160 See, for example, as regards competition law, Opinions of Advocate General Wathelet in InnoLux v Commission (C‑231/14 P, EU:C:2015:292, points 39 to 42), and of Advocate General Wahl in Intel Corporation v Commission (C‑413/14 P, EU:C:2016:788, points 283 and 300); and, in another context, Opinion of Advocate General Szpunar in Nikiforidis (C‑135/15, EU:C:2016:281, point 88). 161 See, for example, Article I.2(b) and Article IV of the Agreement between the European Communities and the Government of the United States of America on the application of positive comity principles in the enforcement of their competition laws of 4 June 1998 (OJ 1998 L 173, p. 28). 162 See, in particular, Opinion of the United States Supreme Court, F. Hoffmann-La Roche, Ltd. v. Empagran S.A. (124 S. Ct. 2359 (2004)). 163 See, inter alia, judgment of 17 December 2020, Centraal Israëlitisch Consistorie van België and Others (C‑336/19, EU:C:2020:1031, paragraph 85). As regards the application of that principle in the present context, see mutatis mutandis paragraph 236 of the judgment under appeal. 164 As Korah, V. stated, it can be very expensive for businesses to deal with, and supply info to, several authorities, in various languages and in different forms within differing – but in any event short – time periods (see An Introductory Guide to EC Competition Law and Practice, 8th edition, Hart, 2004, p. 356). 165 Judgment of 16 March 2023 (C‑449/21, EU:C:2023:207). 166 Judgment of 21 December 2023 (C‑333/21, EU:C:2023:1011, paragraph 131). 167 See, mutatis mutandis, United States Department of Justice and the Federal Trade Commission, Horizontal Merger Guidelines, 2010, Section 6.4. 168 See, with references, Organisation for Economic Co-operation and Development (OECD), ‘Disentangling Consummated Mergers: Experiences and Challenges’, Competition Policy Roundtable Background Note, 2022. 169 On this topic, see, for example, Ginsburg, D.H. and Wong-Ervin, K.W., ‘Challenging Consummated Mergers Under Section 2’, Competition Policy International, May 2020. 170 Directive (EU) 2019/1 of the European Parliament and of the Council of 11 December 2018 to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market (OJ 2019 L 11, p. 3). On that directive, see generally Arsenidou, E., ‘The ECN+ Directive’, in Dekeyser, K. et al. (eds), Regulation 1/2003 and EU Antitrust Enforcement – A Systematic Guide, Wolters Kluwer, 2023, pp. 143 to 149. 171 Cf. Opinion of Advocate General Kokott in Towercast (C‑449/21, EU:C:2022:777, point 63). 172 On interim measures, see, recently, OECD, ‘Interim Measures in Antitrust Investigations’, Competition Policy Roundtable Background Note, 2022. 173 See, for example, judgment of 28 October 2022, Generalstaatsanwaltschaft München (Extradition and ne bis in idem) (C‑435/22 PPU, EU:C:2022:852, paragraph 119 and the case-law cited). 174 Judgment of 3 April 2003, Royal Philips Electronics v Commission (T‑119/02, EU:T:2003:101, paragraph 354). 175 See paragraph 182 of the judgment under appeal. The meaning of that passage remains rather obscure to me. 176 See, in that regard, paragraph 203 of the judgment under appeal. 177 See, in that regard, paragraph 199 of the judgment under appeal. 178 See, with further references, my Opinion in HSBC Holdings and Others v Commission (C‑883/19 P, EU:C:2022:384, points 38 to 59). 179 See, in that regard, paragraph 221 of the judgment under appeal. 180 See, in that regard, paragraph 226 of the judgment under appeal. 181 See, by analogy, the EU Courts’ case-law referred to in paragraph 240 of the judgment under appeal. 182 It is, in particular, difficult to understand why the appellants were contacted by the Commission, and subsequently informed of its concerns, almost three months after the Commission received a complaint about the merger, despite the Commission having – throughout that period – numerous exchanges with the complainant, several NCAs, other Member States’ authorities and the Competition and Markets Authority. 183 Speech entitled ‘The Future of EU Merger Control’, delivered at the International Bar Association’s 24th Annual Competition Conference on 11 September 2020. 184 See, in that regard, paragraph 260 of the judgment under appeal. 185 See, in that regard, paragraph 261 of the judgment under appeal. 186 See, for example, judgments of 20 May 2021, Riigi Tugiteenuste Keskus (C‑6/20, EU:C:2021:402, paragraph 49), and of 31 March 2022, Smetna palata na Republika Bulgaria (C‑195/21, EU:C:2022:239, paragraph 65). 187 See, in that regard, paragraph 62 of the judgment under appeal. 188 See, in that regard, paragraphs 79 and 80 of the judgment under appeal.