Judgment — ECLI:EU:T:2015:148
Date: 2015-03-09
Language of the case: English
Court formation: Third Chamber
Subject matter: Competition;Concentrations between undertakings
Procedure: Action for annulment - unfounded
Origin: Germany

summary of the pleas in law on which the application is based. According to consistent case-law, for an action to be admissible, it is necessary that the basic matters of law and fact relied on be indicated, at least in summary form, coherently and intelligibly in the application itself. Whilst the body of the application may be supported and supplemented on specific points by references to extracts from documents annexed thereto, a general reference to other documents, even those annexed to the application, cannot make up for the absence of the essential arguments in law which, in accordance with the abovementioned provisions, must appear in the application. Furthermore, it is not for the Court to seek and identify in the annexes the pleas and arguments on which it may consider the action to be based, since the annexes have a purely evidential and instrumental function (see Case T‑201/04 Microsoft v Commission [2007] ECR II‑3601, paragraph 94 and the case-law cited). In the present case, the applicant merely refers to the content of an annex to the application, consisting of a CL document, subsequent to the contested decision, entitled ‘Additional Comments on Criticisms Raised in the Prohibition Decision’. Regarding that claim, the Court finds that the body of the application does not contain any arguments the content of which is clarified by the annex in question. Moreover, the applicant merely makes a general reference to that annex, without further indication. All of the applicant’s arguments relating to that claim are therefore in the annex and not in the body of the application. In those circumstances, that claim must be rejected as inadmissible. 355 It follows that the seventh complaint must be rejected. – The eighth complaint 356 The applicant alleges that the Commission’s claim that it is not possible to determine the proportion of savings that would be passed on to consumers is incorrect. The claim that the parties to the concentration could recuperate a substantial portion of efficiency gains is also incorrect. Since customers would enjoy liquidity benefits, the Commission should have examined whether the amount of those benefits would be outweighed by any post-merger price increases. 357 In that regard, since, as follows from the foregoing, no evidence has called into question the Commission’s assessment that the liquidity benefits are not verifiable, the present complaint, which essentially concerns the question whether the efficiencies benefit consumers, is ineffective. As is apparent from point 78 of the 2004 Guidelines, the conditions that the efficiencies benefit consumers, be merger-specific and be verifiable are cumulative. 358 It follows that the eighth complaint must be rejected, as, consequently, must the third part of the plea in its entirety. The fourth part, concerning IT and infrastructure cost savings 359 In connection with this part, the applicant essentially puts forward three complaints. 360 By its first complaint, the applicant submits that the Commission wrongly rejected IT and user access cost savings on the ground that they were not verifiable. By rejecting the evidence in that regard, the Commission has imposed a burden of proof on the parties to the concentration which is too high and runs counter to the 2004 Guidelines and the judgment in Ryanair v Commission, cited in paragraph 61 above. 361 In that regard, it should be noted, first of all, that, according to point 87 of the 2004 Guidelines, it is incumbent upon the parties to the concentration to provide in due time all the relevant information necessary to demonstrate that the claimed efficiencies are merger-specific and likely to be realised. Similarly, it is for the parties to the concentration to show that the efficiencies are likely to counteract any adverse effects on competition that might otherwise result from the merger, and therefore benefit consumers. 362 It follows that the burden of proving that the claimed efficiencies are verifiable falls on the parties to the concentration. That allocation of the burden of proof can be considered to be objectively justified since, first, it is those parties which hold the relevant information in that regard and, secondly, the argument regarding efficiencies seeks to counteract the Commission’s conclusions that the proposed merger would probably significantly impede effective competition by creating a dominant position. 363 Next, as is rightly stated in point 86 of the 2004 Guidelines, efficiencies have to be ‘verifiable’ such that the Commission can be reasonably certain that the efficiencies are ‘likely’ to materialise, and be substantial enough to counteract a merger’s potential harm to consumers. The same point states, also correctly, that the more ‘precise and convincing’ the efficiency claims are the better the Commission can evaluate the claims. It is stated that, where reasonably possible, efficiencies and the resulting benefit to consumers should be ‘quantified’ and that, when the necessary data are not available to allow for a precise quantitative analysis, it must be possible to foresee a ‘clearly identifiable’ positive impact on consumers, ‘not a marginal one’. The condition relating to the verifiability of efficiencies does not therefore require the notifying party to provide data capable of being independently verified by a third party or documents, dated pre-merger, which serve to objectively and independently assess the scope for efficiency gains generated by the acquisition (Ryanair v Commission, paragraph 61 above, paragraph 406). 364 Lastly, it should be noted that the Commission examined the parties to the concentration’s claims relating to IT and user access cost efficiencies in recitals 1161 to 1186 of the contested decision. It concluded, in recital 1187 of that decision, that those efficiencies were not verifiable and that, even if they were, it would be unclear whether they were merger-specific and to what extent they would be passed on to customers. As regards, more particularly, the lack of verifiability of those efficiencies, the Commission stated, in recital 1175 of that decision, that, also taking into account the lack of reliability based on the significant deficiencies in the evidence submitted by those parties, the claimed cost savings had not been substantiated to the required standard. 365 In the present case, it must be observed that the Commission did not reject the data submitted by the parties to the concentration on the sole ground that they were based on presumptions that could not be independently verified; nor did it require a particular type of document, as was the case in Ryanair v Commission, cited in paragraph 61 above, on which the applicant relies in support of its argument. Nor did the Commission reject them on the ground that precise quantification of the efficiencies is required. 366 The Court points out, in the light of a reading of recitals 1168 to 1172 of the contested decision as a whole, that the claim in recital 1168 of that decision that it can be reasonably expected that the parties to the concentration either independently or with the support of external consultants or experts would normally evaluate the prospects of cost savings and synergies even before the transaction is implemented, and the claim in recital 1169 of that decision that those parties’ economic experts stated that they had not been involved in the discussions with customers, nor had they vetted the cost savings as estimated by the interviewees, do not constitute the basis on which the Commission rejected the evidence put forward by those parties. 367 As is apparent from recitals 1168 to 1172 of the contested decision, the Commission found that the evidence put forward by the parties to the concentration was unsatisfactory because of its unreliability, with the result that it did not enable the claimed efficiencies to be verified. In particular, the Commission observed, in recital 1169 of that decision, that those parties had extrapolated estimates that follow from sending out a very limited number of ad hoc and poorly-designed e-mails to selected customers with tight turnaround deadlines. In recital 1172 of that decision, the Commission concluded that the submitted evidence did not enable the claimed cost savings to be verified. Moreover, in recital 1175 of the same decision, the Commission referred, inter alia, to the lack of reliability based on the significant deficiencies in the evidence submitted by those parties in concluding that the claimed cost savings had not been substantiated to the required standard. The weakness of the evidence submitted by those parties therefore justified the Commission’s conclusions. 368 Thus, as regards the [confidential] customers that are members of both cash platforms, the Commission stated, in recital 1170 of the contested decision, that it did not know where the cost savings estimates listed by the parties to the concentration came from, since its request for information of 17 November 2011 did not result in any guidance or explanation as to the origin and reliability of the estimates provided. In particular, the Commission stated that there had been no mapping of the evidence in the file into the claimed efficiencies as had been requested by the Commission in that request for information, and that only general reference had been made to a large number of discussions with users and stakeholders and feedback from presentations by the parties to the concentration to several cash users. The Commission therefore held that it was entirely unclear how the reported claimed savings per customer and per group of customers that had then been extrapolated to the entire group and summed across groups had been constructed. As a result, the Commission held that the evidence did not allow it to verify the claimed cost savings. 369 As regards the [confidential] customers that are members of both derivatives platforms, the Commission observed, in recital 1171 of the contested decision, that, so far as concerns the responses of seven customers relied on by the parties to the concentration in order to substantiate their estimate, either the deadline for responding granted to them by the parties was not reported, or, where it could be identified, it appeared extremely short (less than two days and sometimes less than a day) and that the questions asked to those customers had been phrased very generally and informally without any proposed template to ensure comparability in responses. The Commission therefore found that it was to be expected that the responses were not consistent and did not allow to average cost estimates in any meaningful way. The Commission accepted that the reply to its request for information of 17 November 2011 explained how some of the numbers in the seven responses had been mapped onto the ultimate cost reduction estimates, but noted, however, that the mapping was largely discretionary and that important entries in the final retained estimates were still left out. The Commission therefore observed, in recital 1172 of that decision, that it was unclear how the reported savings made by customers and by groups of customers had been constructed and that, as a result, the submitted evidence did not allow it to verify the claimed cost savings. 370 Lastly, similar assessments are put forward in recitals 1173 and 1174 of the contested decision, which concern, respectively, the cost savings made by Independent Service Providers and the lower charges for connectivity associated with the consolidation of clearing-houses. 371 The Court finds that, in the present case, the applicant has not adduced any evidence to validly call into question the Commission’s assessments of the evidence put forward by the parties to the concentration during the administrative procedure. The applicant merely asserts that, although that evidence was approximate, it showed that customers expected that the merger would result in significant net IT and user access cost savings, and does not adduce any evidence to call into question the Commission’s criticisms in that regard. 372 As regards the fact that the Commission stated, in recital 1175 of the contested decision, that it could not be ‘excluded that there may be a positive impact on customers from avoiding duplication of software maintenance, software updates, and connection charges’, it cannot be inferred that, in so doing, the Commission accepted that the evidence put forward by the parties to the concentration during the administrative procedure showed the existence of a clearly identifiable impact, within the meaning of the 2004 Guidelines. In addition, it is apparent from the items on which the Commission relied in order to exclude the possibility in question — in the present case, the two e-mails cited in footnote 995 of the contested decision — that some customers took the view that they would bear IT costs as a result of the merger. The fact that one of those e-mails also shows, as noted by the applicant, that one customer expects to have net cost savings after one and a half or two years, does not call into question the Commission’s statement, which refers to the period of transition and migration. In that regard, it should be observed, moreover, that point 86 of the 2004 Guidelines correctly states that, in general, the longer the start of the efficiencies is projected into the future, the less probability the Commission may be able to assign to the efficiencies actually being brought about. As for the applicant’s claim that there are no indications that transitional integration costs would outweigh the IT and user access cost savings, it is sufficient to state that the Commission did not claim that such is the case. 373 As regards the conclusions of the Impact Assessment on the Proposal for a Council Directive on a common system of financial transaction tax (see paragraph 125 above), which, according to the applicant, contradicts the Commission’s claim that the evidence of the savings at issue are not verifiable, it is sufficient to note that it is a public document and that it was for the parties to the concentration to produce it if they intended to demonstrate the claimed efficiencies by relying on those conclusions, since the burden of proof is upon them in that regard. In any event, those conclusions do not specifically refer to the concentration at issue, with the result that they are not directly relevant to the examination of the verifiability of the efficiencies, which must be merger-specific. 374 It follows from the foregoing that the fourth part must be rejected, without there being any need to examine the two other complaints concerning merger specificity and consumer pass-on. 375 The second plea must accordingly be rejected in its entirety. The third plea in law, alleging errors of law and assessment regarding the commitments 376 This plea essentially has four parts: it is alleged (i) that the rejection of the divestiture commitment is based on incorrect evidence, (ii) that the existence of a symbiotic relationship between single equity derivatives and equity index derivatives is contradicted by the Commission’s definition of the relevant market, (iii) that the Commission’s rejection of the commitment on the access of third parties undermines its market definition and efficiency gains assessment and (iv) that the Commission’s rejection of the licensing commitment is vitiated by an error and contradicted by its conclusions regarding technological competition. 377 Before examining these parts of the plea, it is important to note that Article 8(2) of Regulation No 139/2004 states: ‘Where the Commission finds that, following modification by the undertakings concerned, a notified concentration fulfils the criterion laid down in Article 2(2) …, it shall issue a decision declaring the concentration compatible with the common market. The Commission may attach to its decision conditions and obligations intended to ensure that the undertakings concerned comply with the commitments they have entered into vis-à-vis the Commission with a view to rendering the concentration compatible with the common market. A decision declaring a concentration compatible shall be deemed to cover restrictions directly related and necessary to the implementation of the concentration.’ 378 Accordingly, first, the Commission is under an obligation to examine a concentration as modified by the commitments validly proposed by the parties to the concentration and, second, the Commission can declare the concentration incompatible with the common market only where those commitments are insufficient to prevent the creation or strengthening of a dominant position as a result of which effective competition would be significantly impeded. In that regard, it must none the less be borne in mind that the burden of proof on the Commission is without prejudice to the wide discretion conferred on it by Article 8(2) of Regulation No 139/2004 (Case T‑87/05 EDP v Commission [2005] ECR II‑3745, paragraph 63). 379 In the present case, the December commitments are essentially composed of three commitments, namely: – the commitment to divest parts of the single equity derivatives business of the parties to the concentration (‘the divestment commitment’); – the commitment to provide access to the merged entity’s clearing-house and margin pool to eligible Independent Third Parties for certain eligible derivative contracts, based on European bond, European equity index or European interest rate underlyings (‘the ITPA commitment’ (Independent Third Party Access)); – the commitment to grant a licence to Eurex’s interest rate trading software (‘the licence commitment’). 380 The parties to the concentration also presented an informal pledge not to increase derivatives trading and clearing fees for a period of three years. 381 Within the context of its assessment of the December commitments, the Commission essentially held: – that their scope was insufficient as it did not entirely address all competition concerns identified; – that they were unlikely to be effective in practice as there were significant doubts about their workability and ability to be implemented and monitored; – that they would be unlikely to lead to a timely entry that would constrain the merged entity to a sufficient extent in all markets where competition concerns were identified. 382 Therefore, on the basis of the analysis of the commitments and the results of the market test, the Commission concluded that overall, the December commitments were not suitable to remedy the competition concerns identified and that, accordingly, they were not capable of remedying the significant impediment to effective competition in the markets identified in the contested decision, and of rendering the notified transaction compatible with the internal market. The first part, alleging that the rejection of the divestment commitment is based on incorrect evidence 383 The applicant criticises the Commission’s conclusion that the implementation of the divestment commitment was not definite because of the uncertainty about obtaining the approvals of the competent national authorities, since the second market investigation showed that [confidential] obtaining such approvals could be problematic. [confidential]. 384 In that regard, it should be noted at the outset that the Commission did not reject the divestment commitment on the sole ground that its implementation was not definite because of the uncertainty about obtaining the approvals. 385 In the first place, although it is true that, in concluding that the scope of the December commitments was insufficient, the Commission referred, in recital 1447 of the contested decision, concerning the divestment commitment, to the possible difficulty in obtaining the required regulatory approvals, it nevertheless also held, with regard to the second phase of the market investigation, that obtaining the necessary regulatory approvals could imply delays in the divestment process, which in turn would result in a significant execution and valuation risk for the potential purchaser. That finding is not disputed by the applicant in the application. The complaint put forward in the reply that the delays referred to in that recital were not supported by evidence must be dismissed as inadmissible since it was not put forward in the application, which did not dispute that ground of that decision, and since it is not based on matters of law or of fact which came to light in the course of the procedure. Moreover, even if it were well founded, that complaint cannot have any bearing on that decision, since, as follows from the examination of this part of the plea and the second part of the plea, the rejection of the divestment commitment is also based on other grounds, the basis of which the applicant has failed to validly call into question. 386 In the second place, in concluding that the December commitments were not suitable to remedy competition concerns, the Commission found, in recital 1452 of the contested decision, concerning the divestment commitment, that, provided that all NYSE Euronext single equity business would indeed be divested, the divestment business would represent [confidential] % of derivatives revenues. In that regard, the Commission essentially held that, provided that all divested open interest were to remain with the purchaser, which appeared to be a rather unlikely scenario in the light of the results of the market investigation, that would create a small scale operator that would have to compete head-to-head with the merged entity. The Commission also noted that any such competition would not be on an equal footing as the purchaser would not necessarily have the possibility of offering trading in the underlying cash equities and in the linked equity index derivatives. Nor has that finding been disputed by the applicant. 387 Lastly, in concluding that the December commitments were unlikely to lead to a timely and sufficient entry, the Commission found, in recital 1460 of the contested decision, that, as regards the divestment commitment, it was unclear whether a suitable purchaser could be found in a timely fashion, in particular in view of the questionable viability of the business and the likely regulatory hurdles leading to a substantial risk for a potential purchaser. The Commission added, in recitals 1461 and 1462 of that decision, that, while the parties to the concentration had claimed that they were in discussions with several potential purchasers for the divestment business, only [confidential] had indicated that it would be potentially interested, depending on the valuation of the business. However, according to the Commission, even if [confidential] were to acquire the divestment business, in view of the limited scale of the business, it is unlikely that it would be in a position to constrain the merged entity in a similar fashion as those parties constrain each other pre-merger in the area of European single equity derivatives. Those findings have not been properly refuted by the applicant in the application. 388 It follows from the foregoing that the rejection of the divestment commitment is not solely based on the uncertainty as to the grant of regulatory approvals, which relates to the scope of that commitment, but on a set of separate grounds, which relate to the question whether it is suitable to remedy competition concerns and whether it would lead to a timely and sufficient entry. 389 Since, as is apparent from the application, the arguments put forward by the applicant in support of this part of the plea concern only the uncertainty as to the grant of regulatory approvals, this part must be rejected, subject to the examination of the second part of the plea, which also concerns the divestment commitment. The second part, alleging that the existence of a symbiotic relationship between single equity derivatives and equity index derivatives is contradicted by the Commission’s definition of the relevant market 390 The applicant disputes the existence of a symbiotic relationship between single equity derivatives and underlying cash equities on the one hand and single equity derivatives and equity index derivatives on the other, by virtue of which the purchaser of the business divested by the parties to the concentration cannot compete with them unless it offers both the derivatives and the underlying equities. In any event, even if such a relationship did exist, the Commission did not take it into account in its analysis of competitive constraints. Finally, since it never raised an argument of that kind before those parties during the administrative procedure, the Commission infringed their rights of defence. 391 In that regard, it should be noted that the Commission stated, in recital 1364 of the contested decision, that the market investigation had revealed that single equity derivatives contracts exist in a symbiotic relationship with the underlying cash equities on the one hand and with equity index derivatives on the other hand. In recital 1365 of that decision, the Commission added that, given that the divestment business did not foresee divestiture of any of those symbiotic products, the link would be broken, putting strain on the sustainability of the divestment business over time, since the sustainability of a margin pool depended on a cross-selection of contracts, the ability to offer margin offsets and the breadth of the product portfolio. As a result, market participants expressed serious concerns about the viability on a lasting basis of the divestment business. 392 It should also be noted that, within the context of the assessment of the scope of the December commitments, the Commission observed, in recital 1448 of the contested decision, that, as regards the divestment commitment, while it is true that those commitments addressed, to a certain extent, the issue of the symbiotic relationship between single equity derivatives and equity index derivatives by offering cross-margining between the divested single equity contracts and equity index contracts in the merged entity’s margin pool, the issues of symbiotic relationship between single equity derivatives and underlying cash equities remained unresolved. Therefore, it held that, as had been indicated during the market investigation, it was possible that, for viability purposes, the divestment business would have to include some additional assets. 393 In the present case, it must be stated at the outset that, even on the assumption that the symbiotic relationship at issue, which was referred to within the context of the examination of the scope of the divestment commitment, did not exist, that would have no bearing on the rejection of the divestment commitment, since that rejection is also based, as is apparent from the first part of this plea, on grounds other than those at issue in this part of the plea, which relate to the question whether the commitment at issue is suitable to remedy competition concerns and whether it would lead to a timely and sufficient entry. 394 The second part of the plea is therefore ineffective. 395 In any event, the second part of the plea is unfounded. 396 In the first place, the existence of the symbiotic relationship was shown, in particular, by the responses to the first phase of the market investigation, as is apparent from recital 1364 and footnote 1173 of the contested decision. The applicant has failed to demonstrate that such a relationship is not apparent from those responses or to validly contest those responses, and merely refers, without any specific evidence, to examples to the contrary and, in particular, to the fact that the parties to the concentration offer equity index derivatives without offering all of the individual equities that comprise the index. The fact that Liffe’s derivatives market in the United Kingdom is disconnected from the underlying cash markets cannot call into question the Commission’s assessments based on the market investigation. In addition, the existence of the symbiotic relationship between equity index derivatives and single equity derivatives is also apparent, as follows from recital 829 of that decision, from an NYSE Euronext internal document, which states that the listed equity derivatives war in Europe is fought between NYSE Euronext and Eurex, with the latter having a bigger market share due in part to the gravitational effect of Eurex’s giant EURO STOXX index contract. 397 In the second place, as for the argument that the Commission did not take account of that symbiotic relationship in its competitive assessment, the applicant does not state to what extent that assessment should have been so. In any event, it follows from recital 958 of the contested decision that the relationship at issue was seen as a barrier to entry in single stock derivatives. 398 In the third place, it is apparent from the documents before the Court that, contrary to what the applicant claims, the issue of the relationship in question was raised before the parties to the concentration during the administrative procedure, at a meeting of 6 December 2011, which the applicant does not dispute. Therefore, even though that aspect was not referred to in the statement of objections, the fact remains that the applicant had the opportunity to adopt a position on the matter, with the result that its right to be heard was not infringed. 399 Lastly, as regards the complaint, submitted in the reply, that the assessment, in the contested decision, of the divestment commitment is based on flawed and contradictory evidence, it must be stated that it was not raised, as such, in the application. In addition, it concerns the factors taken into account in the assessment of the viability and attractiveness of the divestment commitment, which is a separate issue from those referred to in the application, within the context of the first and second parts of this plea, which concern the assessments made in the Commission’s examination of the scope of that commitment. Since it is not based on matters of law or of fact which came to light in the course of the procedure, that complaint must therefore be rejected as inadmissible. In any event, for the reasons set out by the Commission in the rejoinder, that complaint must be rejected as unfounded. First, the fact that the Commission relied on an anonymous response does not call into question the relevance of the other elements on which it relied, and the applicant has not demonstrated, moreover, that the conclusions drawn from the market investigation would have been different if that anonymous response had been omitted. Secondly, the applicant has not validly substantiated its claim that that decision is to a large extent based on the responses of competitors who have ‘a natural interest in the prohibition of the merger’. Thirdly, the arguments relating to the defective nature of the Commission’s position concerning the attractiveness of the divestment commitment must be rejected, since, contrary to what the applicant implies, [confidential] and [confidential] were consulted on the December 2011 version of that commitment; on that occasion, they did not express an unconditional interest in that commitment. In addition, as is apparent from recital 1432 of that decision, [confidential] and [confidential] did not express an interest. Fourthly, concerning the fact that that decision did not evaluate the credibility of the non-binding offer by [confidential], it is sufficient to note that, as is apparent from recital 1463 of the decision at issue, (i) [confidential] had received questionnaires market testing the commitments, to which it did not reply, despite reminders, which is not disputed by the applicant, and (ii) even if [confidential] had been genuinely interested in acquiring the divestment business, there would still remain issues as to the viability and the workability of the commitment. 400 The second part of the plea must therefore be rejected. The third part, alleging that the Commission’s rejection of the ITPA commitment undermines its definition of the relevant market and its efficiency gains assessment 401 The applicant submits that the arguments put forward by the Commission to reject the ITPA commitment are unfounded. First, it submits that, if the Commission were correct in arguing that the correlation between the contracts, used to implement that commitment, varies over time and is therefore unreliable for determining whether a product is a close competitive substitute, it would follow that its argument that LTIR derivatives and STIR derivatives are competitive constraints on each other, because they are correlated, is incorrect. Secondly, the Commission’s argument that the ITPA commitment reinforces the margin pool of the parties to the concentration is incompatible with the information provided by competitors and on which the Commission relied, according to which they need access to that margin pool in order to compete. 402 It must be held, at the outset, that this part of the plea must also be rejected as ineffective, since the arguments put forward by the applicant in support of it do not call into question the Commission’s rejection of the ITPA commitment. 403 The arguments which the applicant contests were put forward by the Commission within the context of its conclusion that the December commitments did not address the competition concerns. However, like the other commitments, the ITPA commitment was also rejected, first, within the context of the Commission’s conclusion that the scope of the December commitments was insufficient, as follows, in essence, from recitals 1446 and 1449 of the contested decision, secondly, within the context of the conclusion that those commitments do not allow a sufficient and timely entry, as is apparent, in essence, from recital 1464 of that decision, and, thirdly, within the context of the conclusion that those commitments would be difficult to implement and to control, as is stated in recitals 1469 to 1471 of that decision. 404 It follows, in essence, from recitals 1446, 1449, 1464 and 1469 to 1471 of the contested decision that the Commission found (i) that the ITPA commitment was insufficient in scope, (ii) that, since its effect is not equivalent to a divestiture, it would be insufficient and could not be accepted, (iii) that there were significant doubts on its effectiveness and (iv) that it was complex in nature and would require monitoring that would be difficult to put in place using the tools provided for by the merger control rules. Those considerations have not been contested by the applicant. 405 Therefore, even if the arguments put forward by the applicant within the context of this part of the plea were well founded, they cannot call into question the Commission’s rejection of the ITPA commitment. 406 In any event, those arguments are unfounded. 407 In the first place, as regards the argument relating to correlation, it should be noted that the applicant has failed to adduce any evidence to challenge the assessment, set out in recital 1453 of the contested decision, that that correlation does not constitute a tool that is best adapted as it does not allow establishing in advance of any request for access, with a sufficient degree of certainty, which contracts are eligible for the commitment at issue, given that its calculation depends heavily on data held by the parties to the concentration and that the degree of correlation between two contracts can change significantly over time. Next, it must be noted that, as is apparent in particular from recitals 419 and 814 of that decision, the Commission left open the question whether the interest rate derivatives market had to be divided between STIR derivatives and LTIR derivatives and that, although, as is apparent from recital 414 of that decision, a trader stated at the hearing that those derivatives could be substitutable, the Commission did not expressly find that LTIR derivatives and STIR derivatives were constraints on each other because of their correlation, contrary to what the applicant implies. The argument relating to correlation must therefore be rejected. 408 In the second place, it must be noted that the applicant does not contest as such the assertion, in recital 1454 of the contested decision, that the ITPA commitment would reinforce the merged entity’s margin pool and its position as a dominant player in the area of derivatives trading and clearing in Europe, with the result that the December commitments would be unlikely to create an independent viable competitive force in the derivatives markets concerned in Europe that would be in a position to effectively constrain the merged entity in a similar fashion as the parties to the concentration constrained each other pre-merger. The applicant merely argues that that assertion is incompatible with the submissions that the competitors of those parties need access to that margin pool in order to compete. The applicant makes in that regard a pure assertion and has not produced any evidence to support its claim that the two assertions are incompatible. 409 In the third place, the complaint, in the reply, that, in order to examine the ITPA commitment, the Commission should have made use of evidence other than that stemming from the market investigation was not raised in the application and, since it is not based on matters of law or of fact which came to light in the course of the procedure, is therefore inadmissible. Moreover, the applicant has failed to indicate the qualitative or quantitative evidence on which the Commission should have relied. 410 It follows from all of the foregoing that the third part of the plea must be rejected. The fourth part, alleging that the Commission’s rejection of the licence commitment is vitiated by an error and contradicted by its conclusions regarding technological competition 411 The applicant claims that the fact that the Commission states that the parties to the concentration are each other’s main competitor and the only driver of innovation regarding trading systems technology contradicts its conclusion that equally suitable trading systems can be purchased from numerous other sources. 412 In the present case, it is apparent from recital 1455 of the contested decision that the Commission considered it unlikely that the licence commitment would make any significant contribution to resolving the competition issues in that decision, as such a licence was not identified by market participants as an actual barrier to entry into the market for trading and clearing of interest rate derivatives. 413 In that regard, it must be observed that, besides the fact that the applicant makes pure assertions, it does not contest the particulars referred to in recital 1455 of the contested decision, from which it is apparent that the grant of a licence does not constitute a barrier to entry and, secondly, that there is no reason to suppose that those considerations would be inconsistent with the finding that the parties to the concentration are the main drivers of innovation. The issue of competition through innovation is a separate issue from the grant of a licence in order to access existing technology. 414 It follows that the fourth part of the plea must be rejected, as must consequently the third plea. 3. The application for a measure of organisation of procedure 415 As is apparent from paragraph 33 above, the applicant applied for a measure of organisation of procedure, pursuant to Article 64(4) of the Rules of Procedure, seeking an order that the Commission produce a document, namely a memorandum from the head of the unit responsible for competition matters at the Commission’s DG for Enterprise and Industry, which was drawn up in the context of the proposed merger and alluded to in a press article. 416 The applicant argues, inter alia, that that document is evidence which is relevant to show that the Commission made an error in the definition of the relevant product market and prejudged the outcome of the procedure. 417 In that regard, it has consistently been held that it is for the Court to appraise the usefulness of measures of organisation of procedure (Case C‑199/99 P Corus UK v Commission [2003] ECR I‑11177, paragraph 67; Case T‑1/90 Pérez-Mínguez Casariego v Commission [1991] ECR II‑143, paragraph 94; and Case T‑358/04 Neumann v OHIM (Form of a microphone head grill) [2007] ECR II‑3329, paragraph 66). 418 In the light of the case-file and in view of the applicant’s pleas, complaints and arguments, it is apparent that such measures are neither relevant nor necessary for the purpose of ruling in the present case. The document in question is an internal Commission document of a preparatory nature, since it was drawn up in the course of the procedure which led to the adoption of the contested decision. The lawfulness of that decision, in particular with regard to the definition of the relevant product market, must be assessed only in the light of the considerations which it sets out, and not in the light of previous preparatory documents. In addition, the applicant has not put forward, in the application, any express plea that the Commission prejudged the outcome of the procedure, which the requested document is allegedly able to substantiate. 419 In any event, the Court has been able to give a proper ruling on the basis of the forms of order sought, the pleas in law and the arguments put forward during the proceedings and in the light of the documents lodged by the parties. 420 It follows that the application for a measure of organisation of procedure must be rejected. 421 It follows from all the foregoing that the action must be dismissed. Costs 422 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay its own costs as well as the costs incurred by the Commission and by Icap, in accordance with the forms of order sought by them. On those grounds, THE GENERAL COURT (Third Chamber) hereby: 1) Dismisses the action; 2) Orders Deutsche Börse AG to bear its own costs and to pay those incurred by the European Commission and by Icap Securities Ltd. Papasavvas Forwood Bieliūnas Delivered in open court in Luxembourg on 9 March 2015. [Signature] Table of contents Background to the dispute 1. Parties to the concentration 2. Administrative procedure 3. Contested decision Procedure Forms of order sought Law 1. Effectiveness of the pleas of the action 2. Substance The first plea in law, alleging errors of law and assessment regarding the analysis of the available evidence The first part, alleging that the Commission did not take sufficient account of the horizontal competitive constraints – The first complaint – The second complaint – The third complaint – The fourth complaint The second part, alleging that the Commission did not examine demand-related constraints sufficiently – The first complaint – The second complaint – The third complaint – The fourth complaint – The fifth complaint The second plea in law, alleging errors of law and of assessment regarding the efficiency gains The first part, concerning the communication of evidence regarding efficiency gains The second part, concerning collateral savings – The first complaint – The second complaint – The third complaint – The fourth complaint – The fifth complaint The third part, concerning effects on liquidity – The first complaint – The second complaint – The third complaint – The fourth complaint – The fifth complaint – The sixth complaint – The seventh complaint – The eighth complaint The fourth part, concerning IT and infrastructure cost savings The third plea in law, alleging errors of law and assessment regarding the commitments The first part, alleging that the rejection of the divestment commitment is based on incorrect evidence The second part, alleging that the existence of a symbiotic relationship between single equity derivatives and equity index derivatives is contradicted by the Commission’s definition of the relevant market The third part, alleging that the Commission’s rejection of the ITPA commitment undermines its definition of the relevant market and its efficiency gains assessment The fourth part, alleging that the Commission’s rejection of the licence commitment is vitiated by an error and contradicted by its conclusions regarding technological competition 3. The application for a measure of organisation of procedure Costs * Language of the case: English. 1 – Confidential information omitted.