Judgment — ECLI:EU:T:2003:256
Date: 2003-09-30
Language of the case: Spanish
Court formation: Third Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices;Concentrations between undertakings
Concepts: Statement of reasons;General;Applications by natural or legal persons;Admissibility and examination of applications, forms of order sought and pleas in law;Interpretation of Community law;Relevant market;Division of powers between the Commission and the national authorities
Procedure: Action for annulment - unfounded
Origin: Spain

Summary of the Judgment 
1. Actions for annulment — Natural or legal persons — Measures directly concerning 
them — Decision to refer examination of a concentration operation to the competent 
authorities of a Member State — Third-party undertaking 
(Art. 230, fourth para., EC; Council Regulation No 4064/89, Art. 9(3)) 
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2. Actions for annulment — Independent of recourse to the national courts 
(Arts 230 EC and 234 EC) 
3. Actions for annulment — Natural or legal persons — Measures concerning them 
individually — Decision to refer examination of a concentration operation to the 
competent authorities of a Member State — Third-party undertaking 
(Art. 230, fourth para., EC; Council Regulation No 4064/89, Arts 6(1)(b), 9(3) and 
18(4)) 
4. Competition — Concentrations between undertakings — Investigation by the Com­
mission — Referral of the examination of a concentration operation to the competent 
authorities of a Member State — Conditions — judicial review — Scope 
(Council Regulation No 4064/89, Art. 9 (2) (a)) 
5. Procedure — Introduction of new pleas in law in the course of the proceedings — 
Flea based on matters coming to light during the proceedings — Confirmation, by a 
judgment of the Court of Justice, of a legal situation known to the parties — 
Inadmissible 
(Rules of Procedure of the Court of First Instance, Arts 48(2) and 76a(3)) 
6. Competition — Concentrations between undertakings — Referral of the examination 
of a concentration operation to the competent authorities of a Member State — 
Relevant market — Determination of its distinctness — Geographical delimi­
tation — Criteria for assessment 
(Council Regulation No 4064/89, Art. 9) 
7. Competition — Concentrations between undertakings — Investigation by the Com­
mission — Definition of the relevant markets — Discretion — judicial review — 
Limits 
(Council Regulation No 4064/89, Art. 9) 
8. Competition — Concentrations between undertakings — Investigation by the Com­
mission — Decision to refer examination of a concentration operation to the 
competent authorities of a Member State — Discretion of the Commission — 
Judicial review — Limits 
(Council Regulation No 4064/89, Art. 9(3) and (8)) 
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9. Competition — Concentrations between undertakings — Investigation by the Com­
mission — Decision to refer examination of a concentration operation to the 
competent authorities of a Member State — Discretion of the Commission — 
Previous decision-making practice — Not relevant 
(Council Regulation No 4064/89, Art. 9(3)) 
10.Community law — Interpretation — Acts of the institutions — Statement of rea­
sons — Account to be taken 
11.Competition — Concentrations between undertakings — Ref errai of the examination 
of a concentration operation to the competent authorities of a Member State — 
Effects — Exclusive competence of the national authorities to rule on the oper­
ation — No possibility of the Commission binding the national authorities on the 
substance 
(Art. 10 EC; Council Regulation No 4064/89, Art. 9(2)(a), (3), first para., (6) and (8)) 
12.Acts of the institutions — Statement of reasons — Obligation — Scope — Decision 
to refer examination of a concentration operation to the competent authorities of a 
Member State 
(Art. 253 EC; Council Regulation No 4064/89, Art. 9(3), first para.) 
1. For a Community measure to be of 
direct concern to a natural or legal 
person within the meaning of the 
fourth paragraph of Article 230 EC, it 
must directly affect the applicant's 
legal situation and its implementation 
must be purely automatic and result 
from Community rules alone without 
the application of other intermediate 
rules. That is the case, in particular, 
where the possibility that addressees 
will not give effect to the Community 
measure is purely theoretical and their 
intention to act in conformity with it is 
not in doubt. 
The purpose of a decision by the 
Commission under Article 9(3) of 
Regulation No 4064/89 to refer the 
examination of a concentration oper­
ation to the competent authorities of a 
Member State is not to rule on the 
effects of the concentration on the 
relevant markets which are the subject 
of the referral, but to transfer respon­
sibility for that examination to those 
national authorities which requested 
the referral in order that they may give 
a ruling in accordance with their 
national competition law. It is, how­
ever, capable of directly affecting the 
legal situation of a third party under­
taking, since it effectively deprives that 
party of a review of the concentration 
by the Commission under Regulation 
No 4064/89, of the procedural rights 
for third parties under that regulation, 
and of the judicial protection provided 
for by the Treaty, and does not require 
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SUMMARY — JOINED CASES T-346/02 AND T-347/02 
any additional implementing measure 
for the referral to become effective. 
(see paras 49-50, 64-65) 
2. The possible existence of legal remedies 
before the national courts cannot pre­
clude the possibility of contesting the 
legality of a decision adopted by a 
Community institution directly before 
the Community judicature under 
Article 230 EC. Therefore, the fact 
that a third-party undertaking has the 
opportunity to bring an action, in 
accordance with national remedies, 
against a decision of the national 
authority for concentration matters 
taken after a referral by the Commis­
sion, and, where appropriate, to seek, 
within that framework, a preliminary 
ruling under Article 234 EC, cannot 
call into question the fact that a 
decision to refer a concentration oper­
ation to the national authorities 
directly concerns that third-party 
undertaking. 
(see paras 67-68) 
3. Persons other than the addressees of a 
decision can claim to be individually 
concerned within the meaning of 
Article 230 EC only if that decision 
affects them by reason of certain 
attributes peculiar to them, or by 
reason of a factual situation which 
differentiates them from all other per­
sons and distinguishes them individ­
ually in the same way as the addressee. 
Since, as far as the application of 
Regulation No 4064/89 is concerned, 
a third-party undertaking would, in 
view of its capacity as the main com­
petitor of the parties to the proposed 
concentration, of its intervention in the 
administrative procedure, and of the 
fact that the Commission took its 
position into account, have been 
regarded as individually concerned by 
a Commission decision declaring the 
operation compatible with the com­
mon market, it must equally be 
regarded as being so concerned by the 
decision to refer the examination of the 
operation to the competent authorities 
of a Member State, that decision 
depriving it of the opportunity to 
challenge before the Community judi­
cature assessments which it could 
admissibly have challenged in the 
absence of the referral. 
(see paras 69-71, 74-79) 
4. For a concentration to be the subject of 
referral on the basis of Article 9 of 
Regulation No 4064/89, two cumu­
lative conditions must be fulfilled. 
First, the concentration must threaten 
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CABLEUROPA AND OTHERS v COMMISSION 
to create or strengthen a dominant 
position as a result of which effective 
competition would be significantly 
impeded on a market within the 
Member State in question. Secondly, 
that market must present all the char­
acteristics of a distinct market. 
Those conditions for referral are 
matters of law and must be interpreted 
on the basis of objective factors. For 
that reason, the Community judicature 
must, having regard both to the specific 
features of the case before it and the 
technical or complex nature of the 
Commission's assessments, carry out a 
comprehensive review as to whether a 
concentration falls within the scope of 
Article 9(2)(a) of that regulation. 
(see paras 101-102) 
5. Although Article 76a(3) of the Rules of 
Procedure of the Court of First Instance 
provides that, in the framework of an 
expedited procedure, the parties may 
supplement their arguments and offer 
further evidence in the course of the 
oral procedure, while giving reasons 
for the delay in offering such further 
evidence, it is clear from the actual 
wording of this provision that it applies 
without prejudice to Article 48 of the 
Rules of Procedure, paragraph 2 of 
which states that no new plea in law 
may be introduced in the course of the 
proceedings unless it is based on 
matters of law or of fact which come 
to light in the course of the procedure. 
In that regard, a judgment given after 
the actions were brought, to which the 
parties refer to justify an argument but 
which merely confirms the law as 
known to those parties at the time 
when they brought their action, cannot 
be regarded as a factor allowing a new 
plea in law to be introduced. 
However, a plea which may be 
regarded as amplifying a plea put 
forward previously, whether directly 
or by implication, in the original appli­
cation, and which is closely connected 
therewith, will be declared admissible. 
(see paras 109-111) 
6. It is clear from the wording of 
Article 9(3) of Regulation No 4064/89 
that, when examining the possibility of 
referring the examination of a concen-
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SUMMARY — JOINED CASES T-346/02 AND T-347/02 
tration operation to the national auth­
orities, the Commission is required to 
determine whether there is a distinct 
market on the basis of, first, a defini­
tion of the market for the relevant 
products or services and, secondly, a 
definition of the geographical reference 
market within the meaning of para­
graph 7. 
As appears from Article 9(7) of Regu­
lation No 4064/89 and from paragraph 
8 of the Commission Notice on the 
definition of the relevant market for 
the purposes of Community compe­
tition law, the geographical market to 
be taken into account consists of the 
area in which the undertakings con­
cerned are involved in the supply and 
demand of products or services, in 
which the conditions of competition 
are sufficiently homogeneous and 
which can be distinguished from neigh­
bouring areas because, in particular, 
conditions of competition are appreci­
ably different in those areas. It is 
necessary, in that assessment, to take 
particular account of the nature and 
characteristics of the products or ser­
vices concerned, the existence of entry 
barriers, consumer preferences, the 
existence of appreciable differences in 
the undertakings' market shares, or 
substantial price differences. 
Where the assessment of all these 
factors leads to the conclusion that 
the conditions of competition in the 
markets for the products or services in 
question in a Member State are 
appreciably different and are therefore 
different geographical markets, those 
markets must be regarded as distinct 
markets within the meaning of 
Article 9(2) of Regulation No 4064/89. 
(see paras 114-116) 
7. When dealing with concentrations 
between undertakings, the Community 
judicature reviews assessments by the 
Commission concerning the definition 
of relevant markets by reference to a 
test of whether there was a manifest 
error of assessment. 
(see para. 119) 
8. Though the Commission has a wide 
discretion in exercising its choice 
whether or not to refer the examination 
of a concentration to the competent 
national authorities of a Member State 
pursuant to the first subparagraph of 
Article 9(3) of Regulation No 4064/89, 
that discretion is not unlimited. The 
Commission cannot decide to make 
such a referral if, when the Member 
State's request for a referral is exam-
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CABLEUROPA AND OTHERS v COMMISSION 
ined, it is clear, on the basis of a body 
of precise and coherent evidence, that 
such a referral cannot safeguard or 
restore effective competition on the 
relevant markets. 
Review of that point by the Commu­
nity judicature is a limited review 
which, in the light of Article 9(3) and 
(8) of Regulation No 4064/89, must be 
restricted to establishing whether the 
Commission was entitled, without 
committing a manifest error of assess­
ment, to consider at the time the 
decision was adopted that the referral 
to the national competition authorities 
would enable them to safeguard or 
restore effective competition on the 
relevant markets so that it was 
unnecessary to deal with the case itself. 
(see paras 174-176) 
9. In the matter of concentrations 
between undertakings, the fact that, 
in a given sector, the Commission has 
decided itself to examine the concen­
tration and has prohibited certain con­
centrations in the past can in no way 
prejudge the referral and/or examin­
ation of a later concentration because 
the Commission is required to carry 
out an individual appraisal of each 
notified concentration according to the 
circumstances of each case, without 
being bound by previous decisions 
concerning other undertakings, other 
product and service markets or other 
geographical markets at different 
times. For the same reasons, previous 
decisions of the Commission relating to 
concentrations in a specific sector can­
not prejudge the decision to be taken 
by the Commission on a request for 
referral to the national authorities of a 
concentration taking place in the same 
sector. 
(see para. 191) 
10. The operative part of a measure is 
indissociably linked to the statement of 
reasons for it, so that, when it has to be 
interpreted, account must be taken of 
the reasons which led to its adoption. 
(see para. 211) 
11. When examining the conditions for 
referral under Article 9(2)(a) of Regu­
lation No 4064/89, the Commission 
cannot, without depriving point (b) of 
the first subparagraph of Article 9(3) of 
its substance, conduct an examination 
of the compatibility of the concen­
tration in such a way as to bind the 
national authorities in regard to their 
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substantive findings but must merely 
establish whether, prima facie, on the 
basis of the evidence available to it at 
the time when it assesses the merits of 
the request for referral, the concen­
tration whose referral is requested 
threatens to create or strengthen a 
dominant position on the relevant 
markets. Provided the national compe­
tition authorities comply with the obli­
gations arising from Article 9(6) and 
(8) of Regulation No 4064/89 and 
from Article 10 EC, they are free to 
rule on the substance of the concen­
tration referred to them on the basis of 
a proper examination conducted in 
accordance with national competition 
law. 
(see para. 217) 
12. The Community institutions' obli­
gation under Article 253 EC to state 
the reasons on which a decision is 
based is intended to enable the Com­
munity judicature to exercise its power 
to review the legality of the decision 
and the persons concerned to know the 
reasons for the measure adopted so 
that they can defend their rights and 
ascertain whether or not the decision is 
well founded. In order to comply with 
that obligation, a referral decision 
adopted under the first subparagraph 
of Article 9(3) of Regulation 
No 4064/89 on the control of concen­
trations between undertakings must 
contain a sufficient and relevant indi­
cation of the factors taken into con­
sideration in establishing that there is a 
threat of the creation or strengthening 
of a dominant position as a result of 
which effective competition would be 
significantly impeded on a market 
within the Member State concerned, 
and that there is a distinct market. 
However, whilst the Commission is 
obliged to state the reasons on which 
its decisions are based, mentioning the 
factual and legal elements which pro­
vide the legal basis for the measure in 
question and the considerations which 
have led it to adopt its decision, it is not 
required to discuss all the issues of fact 
and of law raised by every party during 
the administrative procedure. 
(see paras 225, 227, 232) 
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