Opinion of the Advocate General — ECLI:EU:C:2018:628
Date: 2018-07-25
Language of the case: English
Subject matter: Competition;Agreements, decisions and concerted practices
Procedure: Action for annulment;Appeal - unfounded

Summary 84. Since none of the pleas raised by the Commission against the judgment under appeal have been successful, the appeal must be dismissed in its entirety. VI. Costs 85. Under Article 184(2) of its Rules of Procedure, the Court of Justice is to make a decision as to costs where it dismisses an appeal. 86. It follows from Article 138(1) and (2) in conjunction with Article 184(1) of the Rules of Procedure that the unsuccessful party is to be ordered to pay costs if they have been applied for. Since UPS has made such applications and the Commission has been unsuccessful, the Commission must be ordered to pay the costs of these appeal proceedings. 87. FedEx, the intervener at first instance in support of the Commission, has not participated in the appeal proceedings and consequently cannot be ordered to pay costs arising from the appeal proceedings pursuant to Article 184(4) of the Rules of Procedure. VII. Conclusion 88. On the basis of the above considerations, I propose that the Court should: (1) dismiss the appeal; (2) order the European Commission to pay the costs. 1 Original language: German. 2 Decision of 30 January 2013 declaring a concentration incompatible with the internal market and the functioning of the EEA Agreement (Case COMP/M.6570 — UPS v TNT Express), notified under the reference C(2013) 431 final and summarised in OJ 2014 C 137, p. 8. 3 Judgment of 7 March 2017, United Parcel Service v Commission (T‑194/13, EU:T:2017:144). 4 Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (OJ 2004 L 24, p. 1). 5 Commission Regulation (EC) No 802/2004 of 21 April 2004 implementing Regulation No 139/2004 (OJ 2004 L 133, p. 1). 6 Paragraphs 205 to 208 of the judgment under appeal. 7 Paragraphs 203 and 208 of the judgment under appeal. 8 Paragraphs 203 and 208 of the judgment under appeal. 9 Paragraphs 202 and 220 of the judgment under appeal. 10 Paragraphs 205 to 208 of the judgment under appeal. 11 Paragraphs 210 and 221 of the judgment under appeal. 12 Judgments of 10 July 2008, Bertelsmann and Sony Corporation of America v Impala (C‑413/06 P, EU:C:2008:392, paragraph 29); of 16 July 2009, Commission v Schneider Electric (C‑440/07 P, EU:C:2009:459, paragraphs 103 and 104); and of 26 June 2012, Poland v Commission (C‑335/09 P, EU:C:2012:385, paragraphs 83 and 84). 13 To that effect, judgments of 15 May 1997, Siemens v Commission (C‑278/95 P, EU:C:1997:240, paragraphs 44 and 45); of 11 September 2014, MasterCard and Others v Commission (C‑382/12 P, EU:C:2014:2201, paragraph 60); and of 4 April 2017, Ombudsman v Staelen (C‑337/15 P, EU:C:2017:256, paragraphs 53 and 54). 14 Judgments of 12 September 2006, Reynolds Tobacco and Others v Commission (C‑131/03 P, EU:C:2006:541, paragraph 51); of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council (C‑583/11 P, EU:C:2013:625, paragraph 47); and of 19 January 2017, Commission v Total and Elf Aquitaine (C‑351/15 P, EU:C:2017:27, paragraph 31). 15 Judgments of 13 July 2000, Salzgitter v Commission (C‑210/98 P, EU:C:2000:397, paragraph 43); of 7 June 2007, Wunenburger v Commission (C‑362/05 P, EU:C:2007:322, paragraph 92); and of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council (C‑583/11 P, EU:C:2013:625, paragraph 47). 16 Judgments of 30 September 2003, Eurocoton and Others v Council (C‑76/01 P, EU:C:2003:511, paragraph 52), and of 29 September 2011, Arkema v Commission (C‑520/09 P, EU:C:2011:619, paragraph 31); to the same effect, judgment of 14 October 2014, Buono and Others v Commission (C‑12/13 P and C‑13/13 P, EU:C:2014:2284, paragraph 64). 17 Judgments of 1 June 1994, Commission v Brazzelli Lualdi and Others (C‑136/92 P, EU:C:1994:211, paragraph 59); of 11 December 2008, Commission v Département du Loiret (C‑295/07 P, EU:C:2008:707, paragraph 95); and of 12 September 2017, Anagnostakis v Commission (C‑589/15 P, EU:C:2017:663, paragraph 55). 18 Paragraphs 210 and 221 of the judgment under appeal. 19 Judgments of 24 October 1996, Commission v Lisrestal and Others (C‑32/95 P, EU:C:1996:402, paragraph 21); of 22 October 2013, Sabou (C‑276/12, EU:C:2013:678, paragraph 38); and of 14 June 2016, Marchiani v Parliament (C‑566/14 P, EU:C:2016:437, paragraph 51): see also judgment of 25 October 2011, Solvay v Commission (C‑109/10 P, EU:C:2011:686, paragraph 52). 20 See in that regard my earlier Opinion in Solvay v Commission (C‑109/10 P, EU:C:2011:256, point 152). 21 Judgments of 24 October 1996, Commission v Lisrestal and Others (C‑32/95 P, EU:C:1996:402, paragraph 21); of 22 October 2013, Sabou (C‑276/12, EU:C:2013:678, paragraph 38); and of 14 June 2016, Marchiani v Parliament (C‑566/14 P, EU:C:2016:437, paragraph 51). 22 As the exchanges between the Commission and UPS before the Court of Justice show, in the present case the price concentration model was in part inculpatory and in part exculpatory for UPS. On the one hand, in the decision at issue the Commission essentially relied on this model in order to prohibit the proposed merger. On the other hand, however, the final version of this model also showed that the proposed merger would lead to a significant impediment to effective competition on fewer markets than was originally supposed. 23 Judgment of 25 October 2011, Solvay v Commission (C‑109/10 P, EU:C:2011:686, paragraph 54). 24 Judgments of 21 November 1991, Technische Universität München (C‑269/90, EU:C:1991:438, paragraph 14); of 19 July 2012, Council v Zhejiang Xinan Chemical Industrial Group (C‑337/09 P, EU:C:2012:471, paragraph 107); and of 4 April 2017, Fahimian (C‑544/15, EU:C:2017:255, paragraph 46). 25 See in that regard again judgments of 24 October 1996, Commission v Lisrestal and Others (C‑32/95 P, EU:C:1996:402, paragraph 21); of 22 October 2013, Sabou (C‑276/12, EU:C:2013:678, paragraph 38); and of 14 June 2016, Marchiani v Parliament (C‑566/14 P, EU:C:2016:437, paragraph 51). 26 The Commission refers to the judgments of 10 July 2008, Bertelsmann and Sony Corporation of America v Impala (C‑413/06 P, EU:C:2008:392, in particular paragraphs 61, 63 and 64), and of 9 March 2015, Deutsche Börse v Commission (T‑175/12, EU:T:2015:148, in particular paragraphs 246, 253 to 258, 314 and 344). 27 Judgment of 10 July 2008, Bertelsmann and Sony Corporation of America v Impala (C‑413/06 P, EU:C:2008:392, paragraphs 63 to 65). 28 To that effect, also judgment of 10 July 2008, Bertelsmann and Sony Corporation of America v Impala (C‑413/06 P, EU:C:2008:392, paragraph 63, at the end), according to which the statement of objections does not prevent the Commission from changing its assessment in favour of the undertakings concerned. 29 Paragraphs 205 to 208 of the judgment under appeal. 30 Judgments of 18 December 2007, Cementbouw Handel & Industrie v Commission (C‑202/06 P, EU:C:2007:814, paragraph 39), and of 10 July 2008, Bertelsmann and Sony Corporation of America v Impala (C‑413/06 P, EU:C:2008:392, paragraphs 49 and 90). 31 To that effect, judgment of 10 July 2008, Bertelsmann and Sony Corporation of America v Impala (C‑413/06 P, EU:C:2008:392, paragraph 66), according to which the arguments of the parties to a proposed concentration must be taken into account in proceedings for the control of concentrations in the same way as the arguments of the parties affected by proceedings of the Commission initiated under Articles 101 or 102 TFEU. 32 See in that regard once again the case-law cited in footnote 24. 33 See in this regard point 49 of this Opinion. 34 Paragraphs 205 to 208 of the judgment under appeal. 35 Paragraphs 202 and 220 of the judgment under appeal. 36 See again, in that regard, point 49 of this Opinion. 37 Paragraphs 205 to 208 of the judgment under appeal. 38 Judgments of 10 July 1980, Distillers Company v Commission (Case 30/78, EU:C:1980:186, paragraph 26), and of 14 February 1990, France v Commission (Case C‑301/87, EU:C:1990:67, paragraph 31); to the same effect judgments of 7 January 2004, Aalborg Portland and Others v Commission (C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6, paragraph 73), and of 29 June 2006, SGL Carbon v Commission (C‑308/04 P, EU:C:2006:433, paragraphs 97 and 98). 39 Judgments of 29 October 1980, van Landewyck and Others v Commission (209/78 to 215/78 and 218/78, EU:C:1980:248, paragraph 47), and of 23 April 1986, Bernardi v Parliament (150/84, EU:C:1986:167, paragraph 28); to the same effect judgments of 25 October 2011, Solvay v Commission (C‑109/10 P, EU:C:2011:686, paragraphs 57 and 62), and of 6 September 2017, Intel v Commission (C‑413/14 P, EU:C:2017:632, paragraphs 96 to 98). 40 To that effect in particular the judgment of 7 January 2004, Aalborg Portland and Others v Commission (C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6, paragraphs 72 and 73), to which the Commission refers. 41 Paragraph 215 of the judgment under appeal. 42 Judgments of 28 June 2005, Dansk Rørindustri and Others v Commission (C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraph 244), and of 2 April 2009, France Télécom v Commission (C‑202/07 P, EU:C:2009:214, paragraph 41). 43 To that effect judgments of 1 October 1991, Vidrányi v Commission (C‑283/90 P, EU:C:1991:361, paragraph 29); of 17 December 1992, Moritz v Commission (C‑68/91 P, EU:C:1992:531, paragraphs 37 to 39); and of 20 May 2010, Gogos v Commission (C‑583/08 P, EU:C:2010:287, paragraph 29). 44 Judgments of 6 March 2001, Connolly v Commission (C‑274/99 P, EU:C:2001:127, paragraph 121); of 9 September 2008, FIAMM and Others v Council and Commission (C‑120/06 P and C‑121/06 P, EU:C:2008:476, paragraph 91); and of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission (C‑286/13 P, EU:C:2015:184, paragraph 83). 45 Judgments of 7 January 2004, Aalborg Portland and Others v Commission (C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6, paragraph 372); of 26 November 2013, Gascogne Sack Deutschland v Commission (C‑40/12 P, EU:C:2013:768, paragraph 35); and of 7 June 2018, Ori Martin v Court of Justice of the European Union (C‑463/17 P, EU:C:2018:411, paragraph 26). 46 Judgment of 11 April 2013, Mindo v Commission (C‑652/11 P, EU:C:2013:229, paragraph 41); to the same effect judgment of 25 October 2007, Komninou and Others v Commission (C‑167/06 P, EU:C:2007:633, paragraph 22). 47 Paragraph 209 in conjunction with paragraphs 205 to 208 of the judgment under appeal. 48 In truth, these submissions only amount to just over one page (paragraphs 27 to 29) of the Commission’s defence before the General Court. These arguments begin with a reference to the exchange of views which took place in the administrative procedure between the Commission and UPS regarding the price concentration model and to the alleged belatedness of the observations made by UPS on that model. Only then does the Commission turn to the case-law on the relationship between the statement of objections and the decision which brings the procedure to an end. 49 Paragraph 208 of the judgment under appeal. 50 Paragraphs 216 to 218 of the judgment under appeal. 51 Judgments of 7 June 2007, Wunenburger v Commission (C-362/05 P, EU:C:2007:322, paragraph 80), and of 20 May 2010, Gogos v Commission (C-583/08 P, EU:C:2010:287, paragraph 35).