Judgment — ECLI:EU:T:2003:246
Date: 2003-09-30
Language of the case: German
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: Applications by natural or legal persons;Admissibility and examination of applications, forms of order sought and pleas in law;Assessment criteria;Proceedings;Commitments
Procedure: Action for annulment - unfounded
Origin: Germany

Summary of the Judgment 
1. Actions for annulment — Natural or legal persons — Measures of direct and 
individual concern to them — Decision declaring a notified concentration compatible 
with the common market — Third-party undertaking which is a direct competitor in a 
neighbouring market to the dominated market and which participated in the 
administrative procedure — Admissibility 
(Art. 230, fourth para., EC) 
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SUMMARY — CASE T-158/00 
2. Procedure — Application initiating proceedings — Procedural requirements — 
Summary of the pleas in law relied on — Pleas in law not set out in the 
application — Reference to arguments put forward in the administrative pro­
cedure — Inadmissible 
(Rules of Procedure of the Court of First Instance, Art. 44(1) (c)) 
3. Competition —· Concentrations between undertakings — Assessment of compatibil­
ity with the common market — Creation or strengthening of a dominant position — 
No significant impediment to effective competition — Permissible 
(Council Regulation No 4064/89, Art. 2(2)) 
4. Competition — Concentrations between undertakings — Investigation by the Com­
mission — Examination according to the impact on the market of the operation in 
question 
(Art. 81 EC; Council Regulation No 4064/89, Art. 2) 
5. Competition — Concentrations between undertakings — Investigation by the Com­
mission — Commitments entered into by the undertakings concerned likely to make 
the notified concentration compatible with the common market — Commitments as 
to conduct — Permissible 
(Council Regulation No 4064/89, Art. 2(2) and (3)) 
6. Competition — Concentrations between undertakings — Investigation by the Com­
mission — Adoption of a decision declaring a notified concentration compatible with 
the common market without initiating the Phase II procedure — Condition — No 
serious doubts — Commitments entered into by the undertakings concerned likely to 
dispel the doubts which have arisen and to make the notified concentration compatible 
with the common market — Economic assessments — Discretion — Judicial 
review — Subject-matter — No manifest error of assessment 
(Council Regulation No 4064/89, Art. 6(1) and (2)) 
7. Competition — Concentrations between undertakings — Investigation by the Com­
mission — Commitments entered into by the undertakings concerned likely to make 
the notified concentration compatible with the common market — Commitments 
appearing essentially to relate to adopting conduct which does not infringe Article 82 
EC — Commitments not entirely without interest 
(Art. 82 EC) 
II - 3826 
ARD v COMMISSION 
8. Competition — Concentrations between undertakings — Administrative pro­
cedure — Commitments entered into by the undertakings concerned — Modifica­
tions notified beyond time-limit — Commission taking into account modified 
coinmitments and finding the concentration to be compatible with the common 
market — Permissible 
(Commission Regulation No 447/98, Art. 18(1)) 
9. Competition — Concentrations between undertakings — Investigation by the Com­
mission — Commission's obligations vis-à-vis qualifying third parties — Communi­
cation, for prior comment, of the final terms of the commitments given by the 
undertakings concerned — None 
(Council Regulation No 4064/89, Arts 6(1)(c) and 18(4)) 
1. Persons other than those to whom a 
decision is addressed may claim to be 
individually concerned only if the 
decision affects them by reason of 
certain attributes peculiar to them or 
by reason of factual circumstances in 
which they are distinguished from all 
other persons, and by virtue of those 
factors distinguishes them individually 
in the same way as the person 
addressed. 
In the case of a decision declaring a 
notified concentration compatible with 
the common market, and in the case of 
a third-party undertaking, it is appro­
priate to examine to what extent its 
participation in the administrative pro­
cedure and the effect on its market 
position are such as to distinguish it 
individually for the purposes of 
Article 230 EC. 
First, mere participation in the pro­
cedure is indeed not by itself sufficient 
to establish that a third-party under­
taking is individually concerned by that 
decision, especially in the field of con­
centrations, the thorough examination 
of which requires contact with numer­
ous undertakings, active participation 
in that procedure is a factor to be taken 
into consideration, inter alia, in the 
more specific field of control of 
mergers, in establishing, in the light of 
other specific circumstances, whether 
an action is admissible. This is all the 
more so in this case where that active 
participation had an effect on the 
course of the procedure and, at least 
in part, on the content of the contested 
decision, both as regards the finding 
that the merger raised serious doubts 
and as regards the commitments 
necessary to dispel those doubts. 
Next, regarding impact, the fact that 
the third-party undertaking cannot be 
considered to be a competitor, or even 
a potential competitor on the market in 
question, does not necessarily mean 
that it is not individually concerned by 
the decision. In the same way as 
potential competitors of the parties to 
the concentration may have standing to 
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SUMMARY — CASE T-158/00 
apply for annulment of an approval 
decision in the case of oligopolistic 
markets, where an undertaking holding 
a monopoly sees its posi t ion 
strengthened by a concentration, an 
action for annulment brought by an 
operator present only on neighbouring 
upstream or downstream markets may, 
in certain circumstances, also be 
admissible. 
(see paras 62-63, 76, 78) 
2. Since it is not for the Court to seek and 
identify in the annexes to an action the 
grounds on which it may consider it to 
be based, since the annexes have a 
purely evidential and instrumental 
function, it is not appropriate to take 
account of the arguments put forward 
by the applicant during the adminis­
trative procedure but not reproduced in 
the application. 
(see para. 97) 
3. Under Article 2(2) of Regulation 
No 4064/89, a concentration which 
does not create or strengthen a domi­
nant position as a result of which 
effective competition would be signifi­
cantly impeded in the common market 
or in a substantial part of it must be 
declared compatible with the common 
market. It follows that, when a con­
centration creates or strengthens a 
dominant position, the Commission 
must none the less authorise the oper­
ation if it does not lead to effective 
competition being significantly 
impeded. 
(see para. 130) 
4. All notified concentrations must be 
examined in light of their own impact 
on the market. Thus, the same notified 
concentration, re-notified following an 
opposition, could possibly be auth­
orised if market conditions had evolved 
in such a way that it no longer appears 
to be incompatible with the common 
market. Accordingly, a comparison 
with other merger cases can be relevant 
only if it is established that they raise 
the same competition problems and 
concern markets with the same char­
acteristics and where conditions have 
not changed. 
(see para. 169) 
II - 3828 
ARD v COMMISSION 
5. In accomplishing its mission of moni­
toring notified concentrations between 
undertakings, the Commission is 
empowered to accept only commit­
ments which are capable of preventing 
the creation or strengthening of the 
dominant position identified by it. In 
order to ascertain whether that cri­
terion is met, it is appropriate to 
examine the commitments on a case-
by-case basis, without its being necess­
ary to examine whether the commit­
ment may be categorised as behav­
ioural or structural. Although struc­
tural commitments are, as a rule, 
preferable to behavioural commit­
ments, inasmuch as they prevent once 
and for all, or at least for some time, 
the emergence or strengthening of the 
dominant position and do not require 
medium- or long-term monitoring 
measures, nevertheless the possibility 
cannot automatically be ruled out that 
commitments which at first sight are 
behavioural, for instance the granting 
of access to essential facilities on non­
discriminatory terms, may themselves 
also be capable of preventing the 
emergence or strengthening of a domi­
nant position. 
(see paras 193, 250) 
6. Given the complex economic assess­
ments which the Commission is 
required to carry out in exercising the 
discretion which it enjoys under Regu­
lation No 4064/89 with respect to 
examining the commitments proposed 
by the parties to a concentration, it is 
for the party wishing to obtain annul­
ment of a decision approving a con­
centration at the end of phase I on the 
ground that the commitments are 
insufficient to dispel the serious doubts 
and thereby dispense the Commission 
from initiating phase II, to show that 
the Commission has committed a 
manifest error of assessment. 
It follows that it is not for the Court of 
First Instance to substitute its own 
assessment for that of the Commission; 
the Court's review must be limited to 
ascertaining that the Commission has 
not committed a manifest error of 
assessment in finding that, overall, the 
commitments given were likely to 
resolve the competition-related prob­
lems identified as being raised by the 
notified concentration in question. 
(see paras 194, 245, 329) 
7. Although they are behavioural in 
nature and could be described as being 
obligations which, where applicable, 
could be imposed under Article 82 EC, 
commitments entered into in order to 
obtain an approval decision from the 
Commission for a notified concen­
tration between undertakings must 
not be seen as offering more in relation 
to the general monitoring of abuses of 
dominant positions. In that monitor-
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SUMMARY — CASE T-158/00 
ing, proof of a dominant position in the 
market in question and abuse thereof 
must be adduced by the Commission 
and by third parties. Conversely, the 
commitments imposed as precon­
ditions of a decision approving a con­
centration have the effect of transfer­
ring the burden of proof of compliance 
to the undertakings concerned by the 
operation in question. To that extent, 
they already go beyond the general 
monitoring provided for in Article 82 
EC. 
(see para. 202) 
8. Article 18(1) of Regulation No 447/98 
on the notifications, time-limits and 
hearings provided for in Regulation 
No 4064/89 must be interpreted as 
meaning that, whilst the parties to a 
concentration cannot oblige the Com­
mission to take account of commit­
ments and modifications thereto 
submitted after the time-limit of three 
weeks, the Commission must neverthe­
less be able, where it considers that it 
has the time necessary to examine 
them, to authorise the concentration 
in light of those commitments even if 
modifications are made after expiry of 
the three-week time-limit. 
It follows that the Commission is 
entitled to accept the modified version 
and the final version of the commit­
ments beyond the three-week time-
limit provided for in Article 18(1) of 
Regulation No 447/98, since it is not 
bound by that time-limit. 
Point 37 of the Notice on remedies 
must be interpreted in the light of 
Article 18(1) of Regulation No 447/98. 
It follows that the Commission, if it 
considers that it has sufficient time to 
examine the modifications to the com­
mitments beyond that time-limit, must 
be able to authorise the concentration 
in the light of the modified commit­
ments. 
(see paras 386-390) 
9. In the field of control of concen­
trations, the legitimate interest of third 
parties in making known their views on 
the harmful effects of the concentration 
on competition is fully safeguarded 
where they are placed in a position, 
on the basis of all information com­
municated to them by the Commission 
during the procedure initiated under 
Article 6(1)(c) of Regula t ion 
No 4064/89 and, in particular, of the 
offers of commitments submitted by 
the undertakings concerned, to make 
II - 3830 
ARD v COMMISSION 
known their views on the planned 
amendments to the proposed concen­
tration with a view to removing the 
serious doubts existing as to its com­
patibility with the common market. In 
such a case, there is a sufficient guar­
antee that the considerations put for­
ward by the competing third parties 
can, if appropriate, be taken into 
account by the Commission in deter­
mining whether the concentration is 
compatible with Community law and, 
in particular, whether the commit­
ments proposed by the undertakings 
concerned appear to it to be sufficient 
for that purpose. 
In addition, since the Commission, in 
phase II, is not required under 
Ar t ic le 18(4) of Regu la t i on 
No 4064/89 to send to qualifying third 
parties, for their prior comment, the 
final terms of the commitments given 
by the undertakings concerned on the 
basis of the objections raised by the 
Commission as a result, inter alia, of 
the comments received from third 
parties in regard to the proposed com­
mitments offered by the undertakings 
in question, this is all the more so in the 
case of a Commission decision taken at 
the end of phase I. 
(see paras 416, 422-423) 
II - 3831