Opinion of the Advocate General — ECLI:EU:C:2007:790
Date: 2007-12-13
Language of the case: English
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Concentrations between undertakings
Procedure: Action for annulment;Appeal - successful
Origin: Belgium;Germany

summary of all the facts and evidence which the Commission considers at that stage in the proceedings to be relevant to its decision. 176. On this basis, in the judgment under appeal it was possible for the Court of First Instance to find that despite its provisional nature the statement of objections was not ‘wholly without merit or wholly irrelevant’. (142) 177. There is no doubt that as the procedure runs its course it may appear – in particular because of the submissions made by the participating undertakings in their defence – that the facts and evidence on which the statement of objections was based were incomplete or inaccurate, or that they were not capable of substantiating the conclusions drawn from them. The Court of First Instance correctly recognises this too, where it says in the judgment under appeal that the Commission ‘is obliged to take account of the evidence obtained during the administrative procedure and also of the arguments put forward by the undertakings concerned, and must drop any objections which might ultimately prove to be unfounded’. (143) 178. However, the Community Courts can and must ascertain whether certain facts which the Commission had established and still relied upon in its statement of objections were, in the further course of the procedure, correctly categorised as inaccurate or unreliable by the Commission and dropped. Equally, the Community Courts can and must consider whether any new facts on which the Commission now relies are in fact accurate, whether the facts thus established are complete, and whether they are capable of substantiating the conclusions the Commission has drawn from them. 179. The correctness, completeness and strength of the factual material which underpins a decision must be liable to judicial review. (144) Without such a review of the factual basis for a decision it would not be possible to assess, in a meaningful way, whether the Commission had stayed within the limits of the discretion allowed to it or had committed manifest errors of assessment. 180. Accordingly, in the judgment under appeal the Court of First Instance correctly undertook this review and in doing so explained that the Commission ‘must be in a position to explain … at least in the context of the proceedings before the Court, its reasons for considering that its provisional findings were incorrect; but above all, the findings set out in the decision must be compatible with the findings of fact made in the statement of objections, in so far as it is not established that the latter findings were incorrect’. (145) 181. Contrary to what the appellants and the Commission submit, this does not mean that the merger control authority is subject to a double burden before the courts. It is not required to defend its decision and in addition refute the statement of objections in so far as it diverges from it. It must simply – and in response to a substantiated submission by the applicant – be able to explain that the factual basis of its decision was correct and complete and that it was capable of substantiating the conclusions drawn in its decision. Any explanations as to why certain factual elements have been supplemented or abandoned or reassessed in the course of the administrative procedure are inevitably bound up with the question of the correctness, completeness and strength of the factual basis of the decision. 182. Thus, all in all, the Court of First Instance relied on the statement of objections in an acceptable manner as a basis for its review of whether the first clearance decision was adopted on a correct and complete factual basis that was capable of substantiating the conclusions drawn by the Commission. However, the Court of First Instance did not annul the first clearance decision on account of apparent divergences from the statement of objections, but on account of its insufficient reasoning and on account of manifest errors of assessment. The Court of First Instance found there to be such errors of assessment because the factual basis for the decision had been incomplete and incapable of substantiating the conclusions drawn by the Commission from it as regards the absence of market transparency. (146) c) Interim conclusion 183. Thus, to summarise, the first ground of appeal and the second part of the sixth ground of appeal are unfounded. 3. The evidential value of factual assertions in the response to the objections (second ground of appeal; first part of the third ground of appeal) 184. The second ground of appeal is closely connected to the first part of the third ground of appeal; for that reason I propose to consider both together. In essence, the appellants submit that the Court of First Instance set too high a standard of proof as regards their assertions in the response to the statement of objections. In addition, they submit that the Court of First Instance wrongly held that the Commission was under a duty to conduct a new market investigation following the statement of objections. a) The judgment under appeal 185. In the course of reviewing the first clearance decision for the existence of manifest errors of assessment in relation to market transparency, the Court of First Instance stated inter alia that ‘the parties to the concentration cannot wait until the last minute before submitting evidence to the Commission with a view to refuting objections raised at the proper time by the Commission, since the Commission would then no longer be in a position to carry out the necessary investigations. In such a hypothetical situation, that evidence must at the very least be particularly reliable, objective, relevant and cogent if it is to be capable of validly refuting the objections raised by the Commission’. (147) 186. The Court of First Instance was further of the view that the Commission could not ‘go so far as to delegate, without supervision, responsibility for conducting certain parts of the investigation to the parties to the concentration, in particular where, as in the present case, those aspects constitute the crucial element on which the decision is based and where the data and assessments submitted by the parties to the concentration are diametrically opposite to the information gathered by the Commission during its investigation and also to the conclusions which it drew from that information’. (148) 187. Moreover, in various places in the judgment under appeal the Court of First Instance criticises the Commission for failing, following the response by the parties to the concentration to the statement of objections, to carry out any new market investigations in order to test the validity of the new direction of its assessment of the intended concentration. (149) b) Analysis 188. As has already been mentioned in connection with the first ground of appeal, in merger control proceedings it is essential to observe the rights of defence before making a decision which may adversely affect the undertakings concerned (150) (see also the second sentence of Article 18(3) of the Merger Regulation). 189. For that reason, the undertakings concerned cannot be faulted for not having put forward certain – possibly decisive – arguments, facts or evidence when notifying the concentration or during the Commission’s market investigation, and instead doing so only in their submissions in defence when responding to the statement of objections. (151) The statement of objections is the first document which tells the parties to the concentration in detail what the Commission’s objections are to their intended concentration and the individual arguments and evidence on which it bases those objections. (152) 190. Thus, the sole fact that the parties to the concentration put forward certain arguments, facts or evidence for the first time in their response to the statement of objections does not by any means justify a finding that they withheld this information ‘until the last minute’. (153) Instead, the rights of defence conferred upon the undertakings concerned give them the right to put forward in the course of their written and oral hearing, that is after receipt of the statement of objections, everything which they consider appropriate to refute the objections and to persuade the Commission to clear their concentration. Such a submission is not too late, but is made at the point in time specifically envisaged for it in the merger control procedure. 191. Nor can a higher standard of proof or of cogency be imposed on the submissions put forward by the undertakings concerned in reply to the statement of objections than is imposed on the submissions by competitors, customers, and other third parties questioned by the Commission in the course of the merger control procedure. Admittedly, the Commission is obliged to review the submissions of the parties to the concentration carefully as to their accuracy, completeness and cogency, and in case of reasonable doubt to leave them out of account, but in doing so it must apply the same standards as it does in considering third parties’ submissions. 192. The rights of defence of the undertakings concerned would be devalued if they were not applied in relation to their defence submissions on individual objections raised by the Commission, or if their defence submissions were from the outset viewed as less credible and less cogent than, for example, information provided by third parties in the course of the market investigation. 193. Moreover, if in its decision the Commission considers the defence submissions made by the undertakings concerned and is persuaded by them to reconsider and even depart from the provisional conclusions in its statement of objections, this does not in any way mean that the investigation has been ‘delegated’ to them. 194. Finally, the Commission cannot be obliged in every individual case to undertake further market investigations following the statement of objections and after hearing the undertakings concerned. The time pressures arising from the comparatively strict procedural time-limits are already enough to make it impossible for the Commission to send further comprehensive requests for information about complex economic questions to numerous market participants shortly before issuing its draft decision to the Advisory Committee on concentrations. (154) Realistically, in the short time remaining it is only seldom that such an investigation could be expected to give useful results. Moreover, the undertakings concerned would have to be given a new hearing on the results of the investigation, if, for example, it was intended to rely on them for making a prohibition decision. For that reason, the appellants correctly observed that the consequence of an unclear factual situation after hearing the undertakings concerned cannot be the initiation of new market investigations. Instead, the decision must be made on the basis of the existing information. This approach is supported by Article 10(6) of the Merger Regulation, which provides for a deemed clearance if the Commission does not make a decision within the time-limits allowed to it. 195. Against this background I am of the view that the Court of First Instance misunderstood the legal position in stating that the parties to the concentration could not ‘wait until the last minute before submitting evidence to the Commission with a view to refuting objections raised at the proper time by the Commission’ and that such evidence had to be ‘particularly reliable, objective, relevant and cogent’ if it were to be capable of validly refuting the objections raised by the Commission; in addition, the Court of First Instance was wrong to complain about the absence of further market investigations following the statement of objections, and to equate the acceptance by the Commission of the appellants’ defence submissions with an unlawful delegation of the investigation to the parties to the concentration. (155) 196. Thus, the second ground of appeal and the first part of the third ground of appeal are in substance well founded. 197. However, it does not follow that the judgment under appeal is to be set aside. (156) Specifically, the Court of First Instance did not just object that in assessing market transparency the Commission relied on the defence submissions by Bertelsmann and Sony and failed to carry out new market investigations. Instead, it also reviewed the substance of the Commission’s analysis of market transparency for manifest errors of assessment. 198. In this connection it is to be emphasised that the passages in the Court of First Instance’s judgment which are disputed here were not the first place where the Court of First Instance found there to have been manifest errors of assessment, it having already found one much earlier, at paragraph 377 of the judgment under appeal: ‘Accordingly, it must be held that the evidence, as mentioned in the Decision, does not support the conclusions drawn from it.’ That finding is by no means related to the defence submissions by the parties to the concentration in dispute here concerning campaign discounts and how the Commission took them into account. 199. In paragraphs 384 to 387 of the judgment under appeal too the Court of First Instance found the Commission to have made a manifest error of assessment which was not based on the Commission’s taking into account of the defence submissions by the parties to the concentration as regards campaign discounts, but was based on the incorrect substantive assessment of the results of the market investigation, and in particular of answers given by retailers. 200. Each of these two manifest errors of assessment was in itself sufficient to justify the Court of First Instance in annulling the first clearance decision. Apart from that, as already mentioned, the finding of a failure to give reasons, which the Court of First Instance made without any error in law, was likewise enough to justify the annulment of the first clearance decision. (157) 4. Standard of proof for clearance of concentrations (second part of the third ground of appeal) 201. By the second part of their third ground of appeal the appellants claim that the Court of First Instance erred in law by applying an erroneous and excessively high standard of proof for Commission merger clearance decisions. (158) 202. The appellants’ reasons for their criticism of the judgment under appeal are as follows. In general, the Court of First Instance failed to understand that the standards of proof the Commission was required to apply in relation to clearance decisions and prohibition decisions are not the same; they claim that there is an asymmetry as regards the standard of proof and a general presumption that concentrations are compatible with the common market. Specifically, in the present case the Court of First Instance erroneously required the Commission to obtain positive evidence of a lack of market transparency; according to the appellants, the Court of First Instance should have reviewed only whether, at the time of the first clearance decision, the Commission had sufficient evidence for the existence of market transparency. a) The alleged asymmetry between the requirements for clearance decisions and prohibition decisions in the Merger Regulation 203. I consider first the appellants’ argument that the standards of proof in the Merger Regulation are asymmetrical, and that there is a general presumption that concentrations are compatible with the common market. – Merger control decisions are based on prognoses 204. By way of introduction it is to be observed that merger control decisions by the Commission are different in a material respect from decisions in cartel proceedings under Article 81 EC and in proceedings for abuses of a dominant position under Article 82 EC. In the merger control context, the Commission is not required to assess and, as the case may be, punish – supposedly unlawful – conduct by undertakings which has already occurred, but instead to give a prognosis as to the market’s future development. It must assess whether a concentration is capable of creating or strengthening a dominant position as a result of which effective competition would be significantly impeded in the common market or in a substantial part of it (Article 2(2) and (3) and Article 8(2) and (3) of the Merger Regulation). 205. The Commission’s decision to clear or to prohibit any given concentration thus necessarily depends on an assessment of probability which is made ex ante. The Court recognised this too in Tetra Laval, where it held that merger control involved ‘a prediction of events which are more or less likely to occur in future’. (159) 206. Judicial review of such an assessment of probability is not so much about whether the Commission’s prognosis on a concentration’s positive or negative effects on competition is capable of being proved but rather about its plausibility. The Commission need provide evidence only for the facts on which it has based its prognosis, for example the elements of the market structure it has established (in the present case, for example, the diverse factors which speak in favour of or against a finding of market transparency). In this regard the Court held in Tetra Laval that the ‘evidence must support the Commission’s conclusion that … the economic development envisaged by it would be plausible’. (160) 207. The standard by reference to which the Commission’s prognosis as to the market development envisaged is plausible or implausible should be defined having regard to the specific features of merger control proceedings. In merger control decisions under Article 8 of the Merger Regulation, the Commission neither imposes any sanctions nor infringes the personal freedom or physical integrity of any natural person. Instead, the Commission grants or refuses clearances of an administrative law nature for an economic activity, namely the concentration of undertakings. Moreover, this takes place in a procedure which is characterised by a requirement for speed and a finely balanced, comparatively strict system of time-limits. (161) 208. Given these features of merger control proceedings, the appropriate standard would be, in my view, that the Commission should base its decision on the market development which, on the balance of probabilities, it considers most likely at the end of its months-long, intense investigation of a concentration. The Court of First Instance gave a very accurate summary of this not long ago in General Electric: ‘A prospective analysis … makes it necessary to envisage various chains of cause and effect with a view to ascertaining which of them are the most likely.’ (162) 209. Thus, if it is more likely than not that a dominant position will be created or strengthened, the concentration is to be prohibited; on the other hand, if it is less likely than not that a dominant position will be created or strengthened, the concentration should be cleared. It is the task of the Community Courts to review the Commission’s prognosis for any manifest errors of assessment, in other words as to whether the Commission has based it on evidence which is factually accurate, reliable and consistent and is capable of substantiating the prognosis. (163) 210. I would consider it inappropriate to set the bar higher in the context of merger control and, for example, to require that the market development envisaged by the Commission should be ‘very probable’ or ‘particularly likely’ in order to be accepted by the Court. (164) Such a higher standard of probability would seriously weaken the Commission in carrying out its competition policy functions. The Commission would have to clear concentrations with open eyes even though they would probably lead to the creation or strengthening of a dominant position, and thus would have detrimental effects on competition. The Commission would be able to intervene only in cases in which such detrimental effects of a concentration would be ‘very probable’ or ‘particularly likely’. In addition, it would be difficult to reconcile a higher standard of probability with the margin of discretion allowed to the Commission in its assessment of complex economic situations, (165) the essence of which includes the Commission’s prognosis as to how the market is expected to develop as a result of a concentration between undertakings. 211. A fortiori, it cannot be decisive whether, at the end of its extensive examination of a concentration over many months, the Commission is in a position to decide beyond a reasonable doubt that a dominant position will or will not be created or strengthened. (166) This particularly high standard is known principally in the field of criminal and quasi-criminal proceedings. In merger control proceedings it is applicable only in the preliminary phase (‘Phase I’), to compensate for the fact that at that stage the investigation of a concentration is merely a summary one. At that stage, ‘serious doubts’ as to the compatibility of the concentration with the common market will only prevent its being cleared too quickly and force the Commission to make a more extensive investigation in a formal procedure (‘Phase II’) (Article 6(1)(b) and (c) of the Merger Regulation). (167) However, after that extensive investigation the concentration must be cleared, notwithstanding any remaining doubts, provided that on the Commission’s prognosis the creation or strengthening of a dominant position is less likely than not. On the other hand, the concentration is to be prohibited if, following its more extensive investigation, the Commission regards the creation or strengthening of a dominant position as more likely than not, despite any remaining doubts. – Symmetry of the requirements for clearances and prohibitions 212. I cannot discern any difference between the legal requirements as to clearance decisions on the one hand and prohibition decisions on the other. Contrary to the submissions of the appellants, there is no such difference either as regards the degree of plausibility of the prognosis to be made by the Commission or as regards the solidity of the factual basis supporting it. 213. Both Article 2 of the Merger Regulation, which lays down the general review programme for the control of a notified concentration by the Commission, and Article 8 of the Merger Regulation, which lists the Commission’s powers of decision, are structured completely symmetrically in their respective second and third paragraphs. 214. Ultimately, this symmetry reflects the fact that in each individual case the Commission must strike a fair balance between interests of equal value which are guaranteed by primary law, (168) being on the one hand the rights and interests of the parties to the concentration, and on the other the public interest in protecting competition against distortion (Article 3(1)(g) EC). (169) Thus, while the commercial freedom of the participating undertakings and the property rights of their shareholders (Articles 16 and 17 of the Charter of fundamental rights) undoubtedly include the right to realise concentrations of undertakings, this applies only in so far as certain conditions or obligations on, or even the prohibition of, the concentration in question are not necessary for protecting competition from distortion. 215. The case of Tetra Laval, on which the appellants rely, does not gainsay this symmetry of the requirements for clearance and for prohibition decisions. The requirement laid down there, namely ‘convincing evidence’, (170) is mentioned merely by way of reminder that the Commission must have a reliable factual basis for its assessment of probability. This appears moreover elsewhere in the judgment in Tetra Laval, where the Court says that ‘the quality of the evidence produced by the Commission … is particularly important, since that evidence must support the Commission’s conclusion that … the economic development envisaged by it would be plausible’. (171) 216. The requirement for ‘convincing’ evidence must not be misunderstood as placing the bar higher in relation to prohibition decisions than in relation to clearance decisions. As the Court made clear in Tetra Laval, the requirement for ‘convincing’ evidence ‘by no means added a condition relating to the requisite standard of proof but merely drew attention to the essential function of evidence, which is to establish convincingly the merits of an argument or … of a decision’. (172) 217. Stricter requirements in relation to prohibiting an intended concentration than in relation to clearing it can be inferred from the passage in Tetra Laval quoted above just as little as they can be inferred from the Court’s warning that the Commission must carry out its prospective analysis ‘with great care’. (173) The Commission may by no means grant clearance to a concentration ‘without care’, and in doing so support its analysis with less ‘convincing’ evidence than in the case of a prohibition. Otherwise it would not be properly performing its core function of protecting competition within the internal market against distortion. 218. Thus, if the creation or strengthening of a dominant position is more likely than not, the concentration is to be prohibited; by contrast, if the creation or strengthening of such a position is less likely than not, the concentration is to be cleared. These two assessments of probability are two sides of the same coin. Each is to be made with great care and is to be supported by a factual basis which is not only correct and complete – for that, ‘convincing’ evidence is necessary – but is also capable of substantiating the conclusions drawn from it. (174) – No general presumption of compatibility with the common market 219. It also follows from the symmetry described above and the equal importance given to the legal interests protected (175) that the Merger Regulation is not based on a general presumption in favour of compatibility of concentrations with the common market. In each individual case the Commission must make an express finding as to whether the concentration in question is compatible or incompatible with the common market, (176) and the participating undertakings are expressly prohibited from putting their concentration into effect before the decision is made (Article 7(1) and (5) of the Merger Regulation). 220. The case of EDP v Commission, (177) on which the appellants rely, does not lead to any different conclusion. In that case the Court made it clear that mere doubts on the Commission’s part are not enough to justify prohibiting a concentration. However, it cannot be taken from that, a contrario, that there is a general presumption that concentrations are compatible with the common market. This is also shown by a glance at the 15th recital to the Merger Regulation, from which it follows that, at best, concentrations having a limited market share may be presumed to be compatible with the common market. 221. In my opinion, it is only in the following two categories of case that, very exceptionally, a concentration may be presumed to be compatible with the common market. 222. The first category of case concerns notified concentrations on which the Commission has not given a decision in time, in breach of its statutory obligation. Article 10(6) of the Merger Regulation provides that such concentrations are by operation of law deemed to be compatible with the common market (see also Article 7(1) and (5) of the Merger Regulation). However, given that it is an exception, and given its place in the legislative scheme in conjunction with the provisions as to time-limits, it is not possible to derive from Article 10(6) of the Merger Regulation a more far-reaching general presumption that concentrations are compatible with the common market. (178) 223. The second category of case is concentrations whose investigation by the Commission produces such an unclear state of evidence that it is not possible to make any reliable prognosis as to whether or not they will ultimately create or strengthen a dominant position. Advocate General Tizzano used the term ‘grey area’ to characterise these cases. (179) However, in my view this term should not be misunderstood as involving a considerable number of cases. I think that there can only be a few small and infrequent borderline cases in which, even after extensive market investigations, it is not clear on which side of the line the case falls. Only such instances of non liquet ought to be declared compatible with the common market and cleared on the basis of the principle in dubio pro libertate. However, it is not possible to derive from this category of case a more far-reaching general presumption that concentrations are compatible with the common market. 224. Regardless of the exact scope of these two categories of case, it is clear that the present case does not fall into either of them. The Commission did not, in breach of its obligations, allow the time-limit for its decision on the concentration to expire; nor, according to the Court of First Instance, was the evidence unclear. (180) Although the Commission itself referred to a lack of evidence for certain facts at a number of places in its first clearance decision, (181) so far as appears it never classified the present case as a borderline one of non liquet. Instead, at the oral hearing before the Court of Justice the Commission expressly emphasised that the discussion of borderline cases in which the evidence was unclear was purely hypothetical. (182) – Interim conclusion 225. Altogether, therefore, the appellants’ submissions that in merger control proceedings the requirements in relation to clearance and prohibition decisions are asymmetrical and that there is a general presumption that concentrations are compatible with the common market are to be rejected. Nor does the present case fall into one of the two categories of case in which, by way of exception, there is a presumption that the concentration is compatible with the common market. b) The standard of proof applied by the Court of First Instance in the present case 226. It remains to be considered whether in the present case the Court of First Instance applied the correct standard of proof in relation to the Commission’s findings on market transparency. 227. The appellants argue that the Court of First Instance was not entitled to require the Commission to prove positively an absence of market transparency: instead, the Court of First Instance ought to have been satisfied with reviewing whether, at the time of the first clearance decision, the Commission had sufficient evidence of the existence of market transparency. (183) It is apparent that this line of argument is based on the idea that the standard of proof for clearing a concentration must be lower than that for prohibiting it. 228. I do not find this line of argument convincing, for two reasons. 229. First, it follows from the symmetry of the standard of proof applicable in relation to clearance and prohibition decisions (184) that it can make no difference whether the Commission is considering market transparency with a view to clearing or with a view to prohibiting the concentration in question. The negative finding that a market is not so transparent as to allow a collective dominant position leads to the same result and accordingly requires the same degree of evidence as the positive finding that the market in question is so opaque as to preclude a finding of a collective dominant position. The two findings are two sides of the same coin. And both allow it to be ruled out that there is a risk that a collective dominant position will be created or strengthened, provided that the facts on which each finding is based are correct, complete, and capable of substantiating the conclusions drawn from them. 230. Second, the appellants’ criticism of the standard of proof applied by the Court of First Instance appears to me to be based on a misinterpretation of the judgment under appeal. On closer consideration, the Court of First Instance does not accuse the Commission of having failed to satisfy the standard of proof in its assessment of the concentration’s effect on competition. Instead, in reviewing the first clearance decision the Court of First Instance orientates itself on the Commission’s finding that the market ‘is not sufficiently transparent to permit a collective dominant position.’ (185) Thus, as the appellants demanded, the Court of First Instance even went so far as to review whether there was in fact the alleged insufficiency of evidence that the market was transparent. 231. The manifest error of assessment found by the Court of First Instance consisted not in a failure positively to prove a lack of market transparency but instead in a failure to take all the relevant facts into account in the first clearance decision and in the fact that the facts taken into account were not capable of substantiating the conclusion that the Commission drew. (186) c) Interim conclusion 232. Thus, the second part of the third ground of appeal is unfounded. The same applies for the submissions in paragraphs 98 to 100 and 102 of the appeal, the substance of which overlaps with the second part of the third ground of appeal. B – Limitations on the Court of First Instance’s power to analyse the facts and the evidence (fourth ground of appeal) 233. By their fourth ground of appeal the appellants claim that the Court of First Instance exceeded the scope of judicial review by failing to respect the Commission’s margin of discretion and, on a number of points, by substituting its own assessment of the facts and of the evidence for that of the Commission; in doing so, the Court itself committed manifest errors and fundamentally misconstrued the evidence. (187) 234. Whereas the Commission supports this ground of appeal, Impala defends the judgment under appeal. 1. The Commission’s discretion and judicial review thereof a) The judgment under appeal 235. As support for its complaint that the Court of First Instance did not respect the Commission’s margin of discretion and instead substituted its own assessment of the facts and evidence on a number of points, the appellants give the following examples from the judgment under appeal: – The Court of First Instance described the alignment of list prices as ‘very marked’, whereas the Commission referred simply to list prices as being ‘rather aligned’. (188) – The Court of First Instance described the variation in the general levels of invoice discounts applied by the parties to the concentration as being ‘very low’. (189) – The Court of First Instance regarded campaign discounts as having ‘only a limited impact on prices’. (190) – The Court of First Instance referred to a ‘high level of transparency of prices’ and a ‘high degree of transparency on the market’, (191) and regarded the weekly reports by parties to the concentration as ‘an additional factor of the transparency of the market’; (192) the Court of First Instance regarded campaign discounts as ‘destined to become public knowledge’ (193) and ‘rather public and transparent’. (194) – According to the Court of First Instance, the differences in the ranges of discounts could be ‘the result of differences in performance’ and did not preclude ‘the discounts being based on a known set of rules’. (195) – The Court of First Instance wrongly regarded the economic data produced as irrelevant to the question whether campaign discounts also played a significant role for the best-selling albums. (196) b) Analysis 236. As already mentioned elsewhere, (197) in the context of merger control the Commission has a not insignificant margin of discretion in assessing complex economic situations. According to consistent case-law, review by the Community Courts in this regard must be limited to verifying whether the rules governing procedure and the statement of reasons have been complied with, whether the facts have been accurately stated and whether there has been any manifest error of assessment or misuse of powers. (198) 237. By their criticism of the passages in the judgment under appeal quoted at paragraph 235 above, the appellants ultimately raise the question of the limits which the Commission’s discretion imposes on the judicial review of its decisions, in the context of merger control, with regard to manifest errors of assessment. (199) 238. On this point the Court expressed itself most recently in Tetra Laval as follows: ‘Whilst the Court recognises that the Commission has a margin of discretion with regard to economic matters, that does not mean that the Community Courts must refrain from reviewing the Commission’s interpretation of information of an economic nature. Not only must the Community Courts, inter alia, establish whether the evidence relied on is factually accurate, reliable and consistent but also whether that evidence contains all the information which must be taken into account in order to assess a complex situation and whether it is capable of substantiating the conclusions drawn from it.’ (200) 239. Having regard to this standard of review, it would be an error to assume that the Commission’s margin of discretion precludes the Community Courts in any event from giving their own analysis of the facts and the evidence. On the contrary, it is essential for the Community Courts to undertake such an assessment of their own where they are assessing whether the factual material on which the Commission’s decision was based was accurate, reliable, consistent and complete, and whether this factual material was capable of substantiating the conclusions the Commission drew from it. Otherwise, the Community Courts could not sensibly assess whether the Commission had stayed within the limits of the margin of discretion allowed to it or had committed a manifest error of assessment. (201) 240. The Court of First Instance exceeds the limits of judicial review of a Commission decision in the context of merger control only where the factual and evidential position reasonably allows different assessments, the Commission adopts one of them, and the Court of First Instance none the less substitutes its own different assessment for that of the Commission. 241. If one considers the examples from the judgment under appeal relied upon by the appellants from this point of view, it is clear that although the Court of First Instance in each case undertook its own assessment of the factual and evidential position it clearly remained within the proper limits of judicial review of a Commission decision in the context of merger control. 242. First, one cannot complain of an error of law in so far as the Court of First Instance reviewed the facts established by the Commission as to whether and to what extent it was evidence for or against market transparency. Thus, findings such as those in paragraphs 299, 307, 317, 347, 354 and 361 of the judgment under appeal which are criticised by the appellants were lawful, for example the statement ‘that three factors referred to in the Decision … are capable of giving rise to a high level of transparency of prices’ (paragraph 347). 243. Second, the Court of First Instance was entitled also to form its own view as to whether and to what extent the factual material established by the Commission as regards price discounts, and in particular campaign discounts, was sufficient to exclude there being enough transparency in the market to allow a finding of a collective dominant position. Thus, the findings of the Court of First Instance such as those in paragraphs 402, 403, 405, 406, 419, 420, 421, 424, 436, 444, 456 and 457 of the judgment under appeal which are criticised by the appellants were likewise lawful, for example the statement that campaign discounts represent only a very small part of the gross selling price of albums (paragraph 457). 244. In essence, in the disputed paragraphs of the judgment under appeal the Court of First Instance applied the criteria developed by the Court of Justice itself (202) and reviewed in particular whether the factual basis underlying the first clearance decision was capable of substantiating the Commission’s conclusion that the market was not sufficiently transparent as to allow a collective dominant position. 245. The Court of First Instance by no means substituted its own assessment of market transparency for an equally reasonable assessment of the Commission and it by no means took upon itself to decide whether the disputed concentration was compatible or incompatible with the common market. (203) It merely concluded that the conclusions drawn by the Commission in the present case were not supported by the factual basis of its first clearance decision. (204) This assessment by the Court of First Instance is part of its analysis of the facts and the evidence in first instance proceedings and as such is not susceptible to review in appeal proceedings, subject, however, to the question of distortion of facts and evidence, to which I will turn in a moment. 246. In all, I conclude that in its substantive review of the first clearance decision the Court of First Instance did not fail to respect the Commission’s margin of discretion. 2. The alleged distortion of evidence 247. The appellants further complain that in paragraphs 425, 427 and 434 of the judgment under appeal the Court of First Instance distorted the evidence. In the disputed passages of the judgment under appeal the Court of First Instance considered the Commission’s view that campaign discounts were not transparent. 248. Before I turn to consider those paragraphs of the judgment under appeal, I recall the strict criteria which the Court has laid down in its consistent case-law for the review of an allegation that evidence has been distorted. According to it, evidence may be found to have been distorted where, without recourse to new evidence, the assessment of the existing evidence appears to be clearly incorrect. (205) Thus, the issue is not to review whether the Court of First Instance’s analysis of the evidence is convincing from the point of view of the Court of Justice. Otherwise, the Court would simply be substituting its own analysis of the evidence for that of the Court of First Instance, and this is not its task in appeal proceedings. So long as the Court of First Instance’s analysis of the evidence is at least justifiable, there is no distortion of the evidence. 249. The Court of Justice undertakes its review exclusively by reference to the case file.(206) a) Paragraph 425 of the judgment under appeal 250. In paragraph 425 of the judgment under appeal the Court of First Instance considers some of the tables produced by the Commission and finds: ‘In effect, the calculation of the differential between minimum and maximum discounts by customer … was carried out incorrectly, in most cases, in consideration of the discounts granted by the other party, whereas … that calculation must be made on the basis of the differential between the minimum and maximum discounts granted by one and the same party to its various customers.’ 251. The view of the appellants is that this is a distortion of the evidence. Specifically, in the proceedings at first instance the Commission stated to the Court of First Instance that it had calculated the differential between minimum and maximum discounts by reference to price discounts from the invoice amount which a party to the concentration had given to one and the same customer for each of its top 20 albums. This was apparent from paragraphs 19 to 22 of the Commission’s document dated 21 September 2005, (207) and clearly followed from Annex E.2 to that document. 252. In order to review the allegation of distortion of evidence sensibly, there must first be ascertained exactly which tables the Court of First Instance was referring to in paragraph 425 of the judgment under appeal. Regrettably the authoritative English language version of the judgment is very imprecise on this point. It none the less appears even from this English language version of paragraph 425 that the Court of First Instance was referring to tables ‘which are intended to show the maximum campaign discounts granted by Sony and BMG for their best-selling albums’ (208) and in which a differential between minimum and maximum discounts was calculated by customer. 253. In this respect the French language version of the judgment under appeal is more precise. Even though it is not authoritative in the present case, this language version, in which the judgment was drafted and deliberated, contains additional indications of what the Court of First Instance was in fact intending to refer to in paragraph 425, namely ‘the tables in Annex E.4.2’. (209) And indeed in the case file the cover sheet to Annex E.4.2 includes a heading which is clearly similar to the introductory words of paragraph 425 of the judgment under appeal, (210) and the tables in Annex E.4.2 identify the differential referred to in paragraph 425 between minimum and maximum discounts by customer. 254. Accordingly, I proceed on the footing that paragraph 425 of the judgment under appeal refers to the tables in Annex E.4.2. However, this Annex does not disclose anything suggesting that the Court of First Instance’s discussion in paragraph 425 is clearly incorrect. Admittedly, the tables printed in this Annex, with the exception of the heading in the Annex’s cover sheet, do not contain any explanatory additions. None the less, even a fleeting glance at the first and second tables in Annex E.4.2. shows that the Court of First Instance’s criticism is justified. In calculating the differential between minimum and maximum discounts by customer, the values for Bertelsmann and Sony are sometimes thrown into the same pot. In colloquial terms, one might say that apples have been compared with pears. (211) 255. Nor does it follow from the Commission’s statements in paragraphs 19 to 22 of its document of 21 September 2005 that the Court of First Instance manifestly misinterpreted the tables in Annex E.4.2. According to their wording, the information provided by the Commission there refers only to Annexes B.6, B.8 and E.2. By contrast, the passages in the Commission’s document to which the appellants refer do not contain any explanation of the tables in Annex E.4.2 in question at this point. 256. Against this background I find that the complaint of distortion of evidence is unfounded as regards paragraph 425 of the judgment under appeal. b) Paragraph 427 of the judgment under appeal 257. In paragraph 427 of the judgment under appeal the Court of First Instance states: ‘In any event, even on the assumption that the various tables drawn up by the parties to the concentration and produced by the Commission are in fact capable of establishing the more or less important variations alleged, the fact remains that … those variations are of doubtful relevance in so far as … they show only brackets without analysing the weighted averages and variations by reference to the averages …’ 258. The appellants’ opinion is that, to the contrary, many of the items in the tables and charts produced by the Commission to the Court of First Instance in its reply of 11 February 2005 at first instance are indeed based on weighted average values. In this connection, they refer to Annexes B.4, B.8, B.9, B.10 and B.13, as well as to the additional explanations given by the Commission at first instance in its document of 14 March 2007. 259. On this point it is to be noted that in its judgment the Court of First Instance makes a clear linguistic distinction between tables and charts. (212) In paragraph 427 of the judgment under appeal the Court of First Instance expressly refers to the various tables produced by the Commission. I would therefore have expected that to prove their allegation of distortion of evidence the appellants would likewise refer to parts of the case files which contained tables. However, after having looked at Annexes B.4, B.8, B.9, B.10 and B.13, I have to find that although they contain a number of charts, none of these Annexes contain any tables. In these circumstances the Annexes referred to are just as little capable of establishing the alleged distortion of evidence as are any explanations the Commission has given of these Annexes. 260. It is much more probable that in paragraph 427 the Court of First Instance was referring to tables such as those in Annexes B.6 and B.7, which concern invoice discounts and which, moreover, contain the ‘brackets’ referred to by the Court of First Instance. However, the appellants do not make any submissions in relation to these. 261. Against this background I find that the complaint of distortion of evidence is unfounded as regards paragraph 427 of the judgment under appeal. c) Paragraph 434 of the judgment under appeal 262. In paragraphs 431 to 434 of the judgment under appeal the Court of First Instance considers the question whether it is possible to determine net selling prices to retailers on the basis of retail prices using ‘reverse engineering’. The background to this is Impala’s submission at first instance that retailers’ mark-ups were generally transparent and were known with a high degree of accuracy. (213) 263. Paragraph 434 of the judgment under appeal includes the following: ‘… the study drawn up by the economic advisers to the parties to the concentration does not present data that are sufficiently reliable, relevant and comparable … While it is indeed probable that the different types of retailer (supermarkets, independents, specialist chains, etc.) apply different mark-up policies, and that there are differences within each category of operators, and even differences for each individual operator, according to the types of album or their degree of success, it is very unlikely, on the other hand, and the study contains no data in that regard, that a retailer will apply a different sales policy for the same type of album.’ 264. The appellants claim that the Court of First Instance disregarded the study drawn up by their economic experts and produced by the Commission as Annex B.17, (214) and in particular section 2 thereof. This allegedly contains comprehensive economic information which indicates that the Court of First Instance was wrong to find that retailers followed a uniform mark-up policy. 265. This submission does not convince me. It is clear from merely reading the disputed paragraph 434 of the judgment under appeal that the Court of First Instance, far from disregarding this study, considered it. 266. As regards the substance of the study, it is correct that its section 2 concerns retailers’ mark-up policy and in particular whether retailers apply standard mark-ups. However, the Court of First Instance found the study to lack information as to whether ‘a retailer will apply a different sales policy for the same type of album’. (215) After reading the study in Annex B.17, I have reached the same conclusion as the Court of First Instance. 267. Against this background I find that the complaint of distortion of evidence is unfounded as regards paragraph 434 of the judgment under appeal. 3. Interim conclusion 268. Thus, the fourth ground of appeal is unfounded in its entirety, as are the points made in paragraphs 101 and 102 of the appeal, the substance of which overlaps with the fourth ground of appeal. C – The use of undisclosed evidence in the judgment under appeal (seventh ground of appeal) 269. By their seventh ground of appeal the appellants claim that the Court of First Instance erred in law by basing its judgment on evidence that was not disclosed to the applicants, on which they had no opportunity of commenting, and which was not before the Commission at the time it adopted the first clearance decision. Given that such evidence could not have provided a basis for the Commission’s decision, the setting aside of the first clearance decision could likewise not be based on it. 270. The main point of attack of this ground of appeal is the Court of First Instance’s discussion of price transparency, and in particular of the majors’ – disputed – opportunity of overseeing the retail market with the assistance of weekly reports from their agents. (216) In this connection the Court of First Instance first emphasises one of the Commission’s findings, namely that Sony and Bertelsmann had a system of weekly reports which contained information about their competitors too. (217) By way of supplement to this, in its judgment the Court of First Instance refers also to certain documents produced by Impala and classified as confidential. (218) 271. Since the appellants complain inter alia that they were not able to comment on the latter documents before the Court of First Instance, it must first be considered whether there has been any breach of the adversarial principle before the Court of First Instance. 272. There is no doubt that a judicial decision cannot be based on facts and documents of which the parties themselves – or one of them – have no knowledge and on which they therefore have not been able to comment either. (219) However, in the present case, in the proceedings at first instance the appellants were not in the position of a party to the action, but participated merely as interveners in support of the Commission. As such they have a weaker position in the proceedings than an applicant or a defendant. 273. In particular, the second sentence of Article 116(2) of the Rules of Procedure of the Court of First Instance expressly provides that the President may, on application by one of the parties, omit secret or confidential information from being disclosed to an intervener, and this is not infrequent in competition law proceedings in particular. (220) Particularly in Community competition cases the taking of evidence is characterised by the fact that the documents considered often contain trade secrets or other information which may be published either not at all or only subject to significant restrictions. (221) Thus, it is already inherent in the scheme of the Rules of Procedure that the Court of First Instance can base its judgment, if necessary, on evidence which was not available to interveners (see also Article 67(3)(1) of the Rules of Procedure of the Court of First Instance, and moreover Article 287 EC). 274. Indeed, contrary to what might appear at first sight, the confidential treatment of documents submitted by Impala is less a problem in the adversarial proceedings before the Court of First Instance than a question of observing the rights of defence of the parties to the concentration in the administrative procedure. 275. The appellants correctly submit that the Court of First Instance was not entitled to rely on the disputed documents lodged by Impala to support the annulment of the first clearance decision, because the Commission itself ought not to have used these documents, owing to their confidential nature. If the Court of First Instance considers certain documents to be confidential to such an extent that it withholds their entire content from the undertakings participating in the concentration, (222) the Commission cannot reasonably be expected to rely on them in the administrative procedure to justify a possible prohibition decision, or even simply to rebut particular arguments of the parties to the concentration. 276. Against this background the Court of First Instance erred in law when it supported its decision to annul the first clearance decision by relying on the confidential documents lodged by Impala. 277. However, this error of law does not mean that the judgment under appeal is to be set aside, as the Court of First Instance’s findings were supported by other reasons which were unrelated to the confidential documents submitted by Impala. Thus, reliance on those documents was merely one of a number of factors from which the Court of First Instance concluded ‘that the already strong transparency … is increased even further’. (223) Accordingly, even if, having regard to the appellants’ rights of defence, the Court of First Instance had declined to take the confidential documents submitted by Impala into account, this would not have undermined the conclusions it drew in the judgment under appeal in any way. (224) 278. It follows that the seventh ground of appeal is also unfounded. D – Interim conclusion 279. Accordingly, the appeal is to be dismissed in its entirety. VI – The supposed cross appeal 280. At the end of the Commission’s response to the appeal there appears a separate section with ‘additional observations’ (225) on what the Court of First Instance described as the ‘essential grounds’ of the first clearance decision. 281. There the Commission submits that in paragraphs 474 and 476 of the judgment under appeal the Court of First Instance wrongly classified the Commission’s findings as regards retaliation measures (226) as an essential ground of the first clearance decision. In particular, if it were to be decided in the present proceedings that, contrary to the opinion of the Court of First Instance, the Commission’s findings as regards a lack of market transparency were not vitiated by an error of law, the first clearance decision would have to be upheld, regardless of whether it contained any error of law in relation to retaliation measures. 282. Impala considered these observations by the Commission to be a cross appeal, and under reference to Article 117(2) of the Rules of Procedure replied to them by a separate document. With permission of the President of the Court further documents were submitted on this matter. 283. However, this in itself by no means constitutes a definitive finding by the Court in the present case that there is in fact a cross appeal. Under Article 117(2) of the Rules of Procedure, for a submission to be regarded as a cross appeal it must seek to set aside, in whole or in part, the judgment under appeal on a plea in law which was not raised in the appeal. Whether this is the case here is to be determined by reference to the wording, aim and context of the passage in question in the Commission’s response to the appeal. 284. In that connection it is to be emphasised that the term ‘cross appeal’ is not used by the Commission anywhere in its document. Instead, the heading ‘Additional observations’ indicates that it contains supplementary points which are intended merely to achieve a better understanding of the Commission’s actual submission in response to Bertelsmann’s and Sony’s appeal. In particular, the ‘additional observations’ seek to clarify what the consequence for the validity of the first clearance decision would be if the judgment under appeal were set aside, in part as the case may be, at the instance of Bertelsmann and Sony. (227) 285. In the further course of the procedure the Commission itself made it clear that its ‘additional observations’ were by no means intended to constitute a cross appeal, and moreover expressly declined to assume any liability for costs in that regard; furthermore, it emphasised that its ‘additional observations’ did not have any independent effect, but were relevant only if the appeal lodged by Bertelsmann and Sony succeeded (in part as the case might be). (228) 286. Against this background it is to be held that the Commission’s ‘additional observations’ did not contain any cross appeal, and that it is not necessary for the Court to make a separate decision on it, such decision even being ultra petita. VII – Costs 287. If, as I suggest in the present case, the appeal is dismissed, the Court decides on the costs (Article 122(1) of the Rules of Procedure) according to Article 69 in conjunction with Article 118 of the Rules of Procedure. 288. Article 69(2) of the Rules of Procedure provides that the unsuccessful party is to be ordered to bear the costs if they have been applied for; where there are several unsuccessful parties the Court is to decide how the costs are to be shared. In derogation from this, Article 69(3)(1) of the Rules of Procedure provides that where each party fails on some and succeeds on other heads, the Court may order that the costs be shared; this applies also where an appeal is dismissed notwithstanding that the appellant has succeeded in part of its submissions. (229) 289. As the appellants, Bertelsmann and Sony, have been unsuccessful in the result, but part of their grounds of appeal have in substance succeeded, the costs should be shared. I suggest that Bertelsmann and Sony should each be ordered to pay their own costs and three quarters of Impala’s costs; moreover, to the extent that they are to bear Impala’s costs it appears appropriate to order that Bertelsmann and Sony should be jointly and severally liable. (230) Impala should be ordered to bear one quarter of its own costs. 290. Other parties to the proceedings who support an appeal by applications to the Court may be ordered to bear their own costs, applying Article 69(4) by analogy. The Commission and Sony BMG Music Entertainment having supported the appeal of Bertelsmann and Sony with their own applications, and having been unsuccessful in the result in doing so, it appears appropriate to order each of them to bear its own costs. (231) VIII – Conclusion 291. For the foregoing reasons I suggest to the Court that it should decide as follows: (1) The appeal is dismissed. (2) Bertelsmann AG and Sony Corporation of America are each ordered to bear their own costs, and to pay three quarters of the costs of the Independent Music Publishers and Labels Association, jointly and severally; the Independent Music Publishers and Labels Association shall bear one quarter of its own costs. (3) The Commission of the European Communities and Sony BMG Music Entertainment BV shall each bear its own costs. 1 – Original language: German. 2 – Commission Decision 2005/188/EC of 19 July 2004 declaring a concentration compatible with the common market and the functioning of the EEA Agreement (Case No COMP/M.3333 — SONY/BMG) (notified under document number C(2004) 2815) (OJ 2005 L 62, p. 30). 3 – Case T-464/04 Impala v Commission [2006] ECR II-2289. 4 – OJ 1989 L 395, p. 1; following correction, re-published in OJ 1990 L 257, p. 13. 5 – Regulation of 30 June 1997 amending Regulation (EEC) No 4064/89 on the control of concentrations between undertakings (OJ 1997 L 180, p. 1, with corrigenda in OJ 1998 L 3, p. 16, and OJ 1998 L 40, p. 17). 6 – If, as is in practice often the case, a concentration gives no cause for serious doubts as to its compatibility with the common market, it is cleared without the initiation of a formal merger control procedure already on the basis of the preliminary examination. Under Article 6(1)(b) of the Merger Regulation, in such cases the Commission is to decide not to oppose it and is to declare it compatible with the common market. 7 – In addition, see Articles 11 to 15 of Commission Regulation (EC) No 447/98 of 1 March 1998 on the notifications, time-limits and hearings provided for in Council Regulation (EEC) No 4064/89 on the control of concentrations between undertakings (OJ 1998 L 61, p. 1). 8 – Case C-170/02 P Schlüsselverlag J.S. Moser v Commission [2003] ECR I‑9889, paragraph 33, and Case C-42/01 Portugal v Commission [2004] ECR I-6079, paragraph 51); see also the judgments of the Court of First Instance in Case T-290/94 Kaysersberg v Commission [1997] ECR II-2137, paragraph 113, and Case T-251/00 Lagardère and Canal+ v Commission [2002] II‑4825, paragraph 108, as well as my Opinion in Case C-202/06 P Cementbouw Handel & Industrie v Commission [2007] ECR I-00000, paragraph 41. 9 – Article 57(1) and (2)(a) of the Agreement on the European Economic Area (‘EEA Agreement’, OJ 1994 L 1, p. 3). 10 – Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) (OJ 2004 L 24, p. 1). 11 – Hereinafter, ‘Bertelsmann’. 12 – On this and the following, see paragraphs 3 to 6 of the judgment under appeal. 13 – Hereinafter, ‘Sony’. 14 – The so-called ‘A & R’ (‘Artists and Repertoire’). 15 – In the first clearance decision and in the judgment under appeal this term was taken to mean the following publishers: Bertelsmann Music Group (BMG), Sony Music Entertainment (SMEI), Universal Music Group (UMG), Warner Music Group (WMG) and EMI Group (originally Electric and Musical Industries). 16 – Joined Cases C-68/94 and C-30/95 France and Others v Commission (Kali & Salz) [1998] ECR I‑1375, paragraphs 164 to 178; see also the judgment of the Court of First Instance in Case T-102/96 Gencor v Commission [1999] ECR II‑753, paragraphs 123 to 156. 17 – Gencor (cited above, footnote 16), paragraphs 276 and 277, and Case T-342/99 Airtours v Commission [2002] ECR II‑2585, paragraphs 59 to 61. 18 – Joined Cases C-395/96 P and C-396/96 P Compagnie maritime belge transports and Others v Commission [2000] ECR I‑1365, paragraph 45, in relation to Article 82 EC. 19 – Normally, this occurs by means of anti-competitive parallel behaviour. However, in Case COMP/M.2201 – MAN/Auwärter the Commission assessed a concentration for whether it enabled a permanent, tacit coordination of market behaviour by the members of a duopoly apart from the classic forms of anti-competitive parallel behaviour (Decision 2002/335/EC, OJ 2002 L 116, p. 35; see in particular recitals 33 to 35). 20 – See generally Gencor (cited above, footnote 16), paragraph 276. 21 – Airtours (cited above, footnote 17), paragraph 62. 22 – Paragraph 247 of the judgment under appeal. To the same effect see Case T-347/00 Verband der freien Rohrwerke and Others v Commission [2003] ECR II‑2275, paragraph 186, and – in relation to Article 82 EC – Case T-193/02 Piau v Commission [2005] ECR II‑209, paragraph 111. 23 – On this point and the following see paragraphs 2 and 7 to 11 of the judgment under appeal. 24 – On this point see the Final report of the hearing officer (OJ 2005 C 59, p. 2). 25 – On a subsidiary basis Impala applied for the clearance decision to be annulled in certain respects: see the third indent of paragraph 29 of the judgment under appeal. 26 – On this and the following points see the Commission’s press releases of 1 March 2007 (IP/07/272) and of 3 October 2007 (IP/07/1437). 27 – See, by way of example, Case C-24/05 P Storck v OHIM [2006] ECR I‑5677, paragraph 36, and Case C-25/05 Storck v OHIM [2006] ECR I‑5719, paragraph 40; see also Case C-105/04 P Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission [2006] ECR I‑8725, paragraphs 69 and 70, Case C-328/05 P SGL Carbon v Commission [2007] ECR I-3921, paragraph 41, and Case C-167/06 P Komninou and Others v Commission [2007] ECR I-00000, paragraph 40. 28 – To this effect see Case C-403/04 P Sumitomo Metal Industries v Commission [2007] ECR I‑735, paragraph 40; see also my Opinion in Case C-95/04 P British Airways v Commission [2007] ECR I-2331, paragraph 113. In relation specifically to the requirement to give reasons see Case C-188/96 P Commission v V [1997] ECR I‑6561, paragraph 24, and Case C-166/95 P Commission v Daffix [1997] ECR I‑983, paragraph 35. 29 – Case C-185/95 P Baustahlgewebe v Commission [1998] ECR I‑8417, paragraph 23, Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied (cited above, footnote 27), paragraph 69, Sumitomo Metal Industries (cited above, footnote 28), paragraph 39, and SGL Carbon (cited above, footnote 27), paragraph 41. 30 – Baustahlgewebe (cited above, footnote 29), paragraph 24, Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied (cited above, footnote 27), paragraph 70, Sumitomo Metal Industries (cited above, footnote 28), paragraphs 38 and 39, SGL Carbon v Commission (cited above, footnote 29), paragraph 41, and Komninou and Others (cited above, footnote 27), paragraph 40. 31 – Paragraphs 65 to 69 of the appeal. 32 – Paragraphs 70 to 80 of the appeal. 33 – See point 25 above, and the judgment in Airtours (cited above, footnote 17), paragraph 62. 34 – This is the consistent case-law of the Court; see, for example, Case C-266/05 P Sison v Council [2007] ECR I-1233, paragraph 23, and Case C-227/04 P Lindorfer v Council [2007] ECR I-00000, paragraph 45. 35 – Paragraphs 44 to 481 of the judgment under appeal. 36 – Both paragraphs 44 to 481 and paragraphs 482 to 541 of the judgment under appeal. 37 – Paragraph 17 of the appeal. Similar references may be found in paragraphs 26 and 94 and in footnote 6 of the appeal. 38 – Paragraphs 17, 59 and 81 of the appeal. 39 – See above, points 50 to 55. 40 – See above, point 25, and Airtours (cited above, footnote 17), paragraph 62. 41 – To this effect see paragraphs 249 to 253 of the judgment under appeal. 42 – Paragraph 67 of the appeal. 43 – Case C-35/92 P Parliament v Frederiksen [1993] ECR I‑991, paragraph 31; Case C-122/01 P T. Port v Commission [2003] ECR I‑4261, paragraph 17; Joined Cases C-189/02 P, C-202/02 P, C-205/02 P to C-208/02 P and C-213/02 P Dansk Rørindustri and Others v Commission [2005] ECR I-5425, paragraph 148; and Case C-443/05 P Common Market Fertilizers v Commission [2007] ECR I-00000, paragraph 137. 44 – As regards the requirement of an interest in the appeal, see Case C-19/93 P Rendo and Others v Commission [1995] ECR I-3319, paragraph 13; to the same effect, in relation to interest at first instance, see Case C-362/05 P Wunenburger v Commission [2007] ECR I-00000, paragraph 42, and the order in Case T-28/02 First Data and Others v Commission [2005] ECR II‑4119, paragraphs 35 to 37. 45 – Rendo and Others (cited above, footnote 44), paragraph 13; Case C-174/99 P Parliament v Richard [2000] ECR I-6189, paragraph 33; and Case C-277/01 P Parliament v Samper [2003] ECR I‑3019, paragraph 28. 46 – Given that the disputed concentration was implemented at a time when the first clearance decision was still in force, Article 7(5) of the Merger Regulation is not applicable to the facts of the present case. The legal concept underlying this provision, namely temporary invalidity and retrospective cure of temporary invalidity by a clearance decision can, however, be usefully applied in the present case. 47 – Notwithstanding this, the Court has from time to time declared that there is no need to adjudicate on an appeal, where it is found that the appellant has already achieved its aim (orders of 23 October 2001 in Case C-281/00 P Una Film ‘City Revue’ v Parliament and Council, not published in the ECR, paragraphs 4 and 5, and Case C-313/00 P Davidoff v Parliament and Council, not published in the ECR, paragraphs 4 and 5), or where it is clear that it can no longer achieve its aim (Case C‑13/03 P Commission v Tetra Laval [2005] ECR I‑1113, paragraphs 21 to 23; orders in Case C-477/01 P(R) Reisebank v Commission [2002] ECR I-2117, paragraphs 24 to 28, and Case C‑480/01 P(R) Commerzbank v Commission [2002] ECR I-2129, paragraphs 23 to 27). As I will show in the following, however, neither of these is the case here. 48 – See, for example, Case C-396/93 P Henrichs v Commission [1995] ECR I‑2611, paragraph 66, Joined Cases C-302/99 P and C-308/99 P Commission and France v TF1 [2001] ECR I‑5603, paragraph 31, Joined Cases C-57/00 P and C-61/00 P Freistaat Sachsen and Others v Commission [2003] ECR I‑9975, paragraph 124, and Case C-301/02 P Tralli v ECB [2005] ECR I‑4071, paragraph 88. 49 – To be precise, Article 102(1) of the Rules of Procedure of the Court of First Instance provides that the period for challenges laid down by Article 230(5) EC begins with the expiry of the 14th day after publication of the decision in the Official Journal of the European Union. Admittedly, this presupposes that the non-confidential version of the grounds for the decision is published in full in the Official Journal, or at least is made available to the public at the same time via the internet. If this is not the case, the period for bringing a challenge begins to run only when the potential claimant receives a complete version, so far as he has not received it already (to this effect see Case 236/86 Dillinger Hüttenwerke v Commission [1988] ECR 3761, paragraph 14. 50 – Case T-110/97 Kneissl Dachstein Sportartikel v Commission [1999] ECR II‑2881, paragraphs 41 and 42, and Case T-123/97 Salomon v Commission [1999] ECR II‑2925, paragraphs 42 and 43, as well as the order in Case T-264/03 Schmoldt and Others v Commission [2004] ECR II‑1515, paragraphs 51 to 53 and 56. 51 – Case T-17/02 Olsen v Commission [2005] ECR II‑2031, paragraph 80, confirmed by the order of 4 October 2007 in Case C-320/05 P Olsen v Commission, not published in the ECR, and order in Case T‑321/04 Air Bourbon v Commission [2005] ECR II‑3469, paragraphs 34 and 37. 52 – Case T-17/02 Olsen (cited above, footnote 51), paragraph 81. As regards the subsidiarity of the time at which the claimant acquires knowledge of a decision which requires to be published in the Official Journal of the European Union, see also Case C-122/95 Germany v Council [1998] ECR I‑973, paragraph 35, and Case T-296/97 Alitalia v Commission [2000] ECR II-3871, paragraph 61, as well as the order in Case T-392/05 MMT v Commission [2006] ECR II-00000, paragraph 25. 53 – For the sake of completeness only, it may be mentioned that a formal notification (notice) of the decision to a third party by virtue of which the time period for it to bring a challenge might start to run is not relevant. Article 254(3) EC provides that decisions shall be notified only ‘to those to whom they are addressed’. In merger control, those are the undertakings concerned and the competent authorities of the Member States; see, for future cases, Article 8(8) of Regulation (EC) No 139/2004. 54 – See above, point 12. 55 – Case C-49/92 P Commission v Anic Partecipazioni [1999] ECR I‑4125, paragraph 171, and Case C-141/02 P Commission v max.mobil [2005] ECR I-1283, paragraph 48. 56 – See above, points 50 to 55 and 66 to 71. 57 – According to its reply to the appeal the Commission supports the first and second grounds of appeal, and the first part of the third ground of appeal. 58 – So far as the sixth ground of appeal complains about the Court of First Instance’s references to the statement of objections as errors in law (the second part of the sixth ground of appeal), I consider it below in conjunction with the first ground of appeal (see points 145 to 183). So far as the sixth ground of appeal concerns the substantive requirements of a clearance decision (fourth part of the sixth ground of appeal) it overlaps with the second part of the third ground of appeal and with the fourth ground of appeal and shall be considered in conjunction with them (points 201 to 232, and points 233 to 268). 59 – OJ 2000 C 364, p. 1. Admittedly, the Charter of fundamental rights does not yet as such have binding legal effect comparable to that of primary law, but as a source of recognition of law it does shed light on the fundamental rights guaranteed by Community law; on this point see Case C-540/03 Parliament v Council [2006] ECR I‑5769, paragraph 38), and point 108 of my Opinion in that case; see also Case C-432/05 Unibet [2007] ECR I-2271, paragraph 37. 60 – As regards the principle of transparency, see also Article 1(2) of the Treaty on European Union, which provides that in the European Union ‘decisions are taken as openly as possible’. 61 – According to consistent case-law, a provision of secondary Community law is to be interpreted, so far as possible, so that it is compatible with the Treaty and with the fundamental principles of Community law: see Joined Cases 201/85 and 202/85 Klensch and Others [1986] ECR 3477, paragraph 21; Case C-98/91 Herbrink [1994] ECR I-223, paragraph 9; Case C-1/02 Borgmann [2004] ECR I‑3219, paragraph 30; and Case C-457/05 Schutzverband der Spirituosen-Industrie v Diageo Deutschland [2007] ECR I‑00000, paragraph 22. 62 – In that event, there is a presumption that the concentration is compatible with the common market (as regards the concept of the presumption, see also Article 7(1) and (5) of the Merger Regulation). 63 – This obligation arises from Article 6(1) of the Merger Regulation as regards the preliminary phase and from Article 8(1) of the Merger Regulation as regards the formal investigation procedure. 64 – The Commission is relieved of this obligation only in so far as the concentration is referred to a national competition authority under Article 9 of the Merger Regulation, except for cases in which the notification is withdrawn because the intention to form a concentration is abandoned. 65 – So far as appears, in the long history of European merger control the Commission has only once failed to comply with a procedural time-limit, and then on account of a mistake in calculation (Case IV/M.330 – McCormick/CPC/Rabobank/Ostmann); in relation to this see Von Koppenfels, U., in Drauz / Jones (eds), EU Competition Law, Volume II – Mergers and Acquisitions (Leuven 2006), paragraph 6.27. 66 – Annulment actions at the instance of third parties under Article 242(1) EC do not have suspensory effect. 67 – On this point, see paragraphs 278 to 325, and in particular paragraphs 287 and 325, of the judgment under appeal. 68 – Recitals 153, 158 and 183 of the first clearance decision. 69 – Recitals 111 to 113 of the first clearance decision. 70 – Paragraph 294 of the judgment under appeal. 71 – The German translation of recital 69 of the first clearance decision is inaccurate in that regard, given that it uses the term ‘Preisabsprachen’ for the term ‘common price policy’. 72 – The Commission’s consideration appears essentially in recitals 74 to 80 of the first clearance decision, and the Court of First Instance reviewed the information provided there as regards the situation in the United Kingdom as representative of the reasons for the decision in general. 73 – Paragraphs 295 to 324 of the judgment under appeal. 74 – Paragraph 303 of the judgment under appeal. 75 – Paragraph 320 of the judgment under appeal. 76 – Paragraph 324 of the judgment under appeal. 77 – The last sentence of paragraph 289 of the judgment under appeal. 78 – The last sentence of paragraph 320 of the judgment under appeal. 79 – See, for example, Case C-367/95 P Commission v Sytraval and Brink’s France [1998] ECR I‑1719, paragraph 63, Joined Cases C-138/03, C-324/03 and C-431/03 Italy v Commission [2005] ECR I‑10043, paragraph 54, and Sison (cited above, footnote 34), paragraph 80. 80 – Sytraval and Brink’s France (cited above, footnote 79), paragraph 63, Italy v Commission (cited above, footnote 79), paragraph 55, and Sison (cited above, footnote 34), paragraph 80. 81 – As regards the influence of the temporal conditions in which a decision is issued on the duty to state reasons, see Case 16/65 Schwarze [1965] ECR 877, at p. 888, Case C-350/88 Delacre and Others v Commission [1990] ECR I‑395, paragraph 16, and Verband der freien Rohrwerke (cited above, footnote 22), paragraph 186. 82 – To this effect see Joined Cases 275/80 and 24/81 Krupp Stahl v Commission [1981] ECR 2489, paragraph 13, and, in relation to media policy, Joined Cases T-369/94 and T-85/95 DIR International Film and Others v Commission [1998] ECR II‑357, paragraphs 119 to 121. 83 – Case 32/86 SISMA v Commission [1987] ECR 1645, paragraph 9, and Case T-266/94 Skibsværftsforeningen and Others v Commission [1996] ECR II‑1399, paragraph 239. 84 – Sytraval and Brink’s France (cited above, footnote 79), paragraph 64, last sentence; see also Joined Cases C-465/02 and C-466/02 Germany and Denmark v Commission [2005] ECR I‑9115, paragraph 106, and Verband der freien Rohrwerke (cited above, footnote 22), paragraph 186, last sentence. 85 – Case 6/54 Netherlands v High Authority [1955] ECR 103, 111), Case 24/62 Germany v Commission [1963] ECR 63, 69, Case 41/69 ACF Chemiefarma v Commission [1970] ECR 661, paragraph 78, and Case T-206/99 Métropole télévision v Commission [2001] ECR II‑1057, paragraph 44, last sentence. 86 – Germany v Commission (cited above, footnote 85), p. 69. 87 – ACF Chemiefarma (cited above, footnote 85), paragraph 78. 88 – Germany v Commission (cited above, footnote 85), p. 69, and Case 158/80 Rewe-Markt Steffen [1981] ECR 1805, paragraph 26. 89 – See for example paragraphs 294, 303, 319, 320 (second sentence) and 321 (last sentence) of the judgment under appeal. 90 – The last sentence of paragraph 289 of the judgment under appeal. 91 – The second sentence of paragraph 320 of the judgment under appeal; to the same effect see the last sentence of paragraph 289 of the judgment under appeal. 92 – The first sentence of paragraph 320 of the judgment under appeal. 93 – Again, see in particular the last sentence of each of paragraphs 289, 294 and 320 of the judgment under appeal. 94 – This distinguishes the present case from Kaysersberg (cited above, footnote 8), paragraphs 159 and 160, in which the Court of First Instance was of the opinion that the inadequacy complained about in the reasons given did not involve a fundamental part of the Commission’s decision. 95 – See paragraphs 286 and 289 of the judgment under appeal, according to which – as according to the view expressed by the Commission in the proceedings at first instance – ‘transparency is the essential, and indeed the only, ground for the assertion that there is no collective dominant position on the markets for recorded music’ (paragraph 289). 96 – Kali & Salz (cited above, footnote 16), paragraph 223, and Case C-12/03 Commission v Tetra Laval [2005] ECR I‑987, paragraph 38; see also Gencor (cited above, footnote 16), paragraph 246, and Case T-210/01 General Electric v Commission [2005] ECR II‑5575, paragraph 60, from the Court of First Instance. 97 – Case C-269/90 Technische Universität München [1991] ECR I‑5469, paragraph 14; Joined Cases C-258/90 and C-259/90 Pesquerias De Bermeo und Naviera Laida v Commission [1992] ECR I‑2901, paragraph 26, as well as Case C-525/04 P Spain v Lenzing [2007] ECR I-00000, paragraph 58. In addition, see Joined Cases 36/59 to 40/59 Präsident Ruhrkohlen-Verkaufsgesellschaft and Others v High Authority [1960] ECR 423, at p. 439 et seq. 98 – To this effect, an example from the field of agricultural policy is Case C-358/90 Compagnia italiana alcool v Commission [1992] ECR I‑2457, paragraph 42. 99 – The last sentence of paragraph 289 of the judgment under appeal. 100 – On this point see recital 111 of the first clearance decision, quoted in paragraph 289 of the judgment under appeal (emphasis added). 101 – On this point see recital 80 of the first clearance decision, quoted in paragraphs 315 and 316 of the judgment under appeal (emphasis added). 102 – The last sentence of paragraph 289 of the judgment under appeal. 103 – Paragraph 294 of the judgment under appeal. 104 – Paragraph 320 of the judgment under appeal. 105 – Paragraph 325 of the judgment under appeal. 106 – See above, point 119 et seq. 107 – Kaysersberg (cited above, footnote 8), paragraph 105. 108 – To this effect see Case C-342/03 Spain v Council [2005] ECR I‑1975, paragraph 59, and Kaysersberg (cited above, footnote 8), paragraph 160. 109 – See above, point 119. 110 – Joined Cases 296/82 and 318/82 Netherlands and Others v Commission [1985] ECR 809, paragraph 27. 111 – Paragraph 413 of the judgment under appeal. 112 – On this point see for example recitals 74, 81, 88, 95 and 102 of the first clearance decision. 113 – Paragraph 282 of the judgment under appeal. 114 – Paragraphs 282 and 283 of the judgment under appeal. 115 – Paragraph 285 of the judgment under appeal. 116 – Case C-87/96 Assicurazioni Generali and Unicredito v Commission [1999] ECR II‑203, paragraph 88. 117 – This is the consistent case-law of the Court since Case 85/76 Hoffmann-La Roche v Commission [1979] ECR 461, paragraphs 9 and 11, and Joined Cases 100/80 to 103/80 Musique Diffusion française and Others v Commission [1983] ECR 1825, paragraph 10. 118 – Article 13(2) of Regulation No 447/98 provides that in merger control proceedings the Commission shall address its objections in writing to the notifying parties and to other involved parties, and shall set a time-limit within which they may inform the Commission of their views in writing. 119 – SGL Carbon v Commission (cited above, footnote 27), paragraph 55. 120 – See Article 13(2) and Article 14 of Regulation No 447/98. 121 – Joined Cases 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 Aalborg Portland and Others v Commission [2004] ECR I‑123, paragraph 67; to the same effect see also the earlier cases of Musique Diffusion française (cited above, footnote 117), paragraph 14, and Joined Cases 142/84 and 156/84 BAT and Reynolds v Commission [1987] ECR 4487, paragraph 70. 122 – Paragraph 283 of the judgment under appeal. 123 – Paragraph 285 of the judgment under appeal. 124 – In the history of European merger control there are numerous examples of clearance decisions which were preceded by a statement of objections. In this context the appellants rightly refer, by way of example, to the following cases: COMP/M.1940 – Framatome/Siemens/Cogema/JV, COMP/M.2499 – Norske Skog/Parenco/Walsum, COMP/M.2498 – UPM-Kymmene/Haindl, COMP/M.2314 – BASF/Pantochim/Eurodiol, COMP/M.2201 – MAN/Auwärter, COMP/M.2706 – Carnival Corporation/P&O Princess, COMP/M.3056 – Celanese/Degussa/European OXO Chemicals and COMP/M.3216 – Oracle/Peoplesoft. 125 – Paragraphs 284 and 285 of the judgment under appeal; to the same effect, see paragraphs 300, 335, 410 and 446 of the judgment under appeal. 126 – Paragraphs 161 to 182 below. 127 – According to consistent case-law, if the grounds of a judgment of the Court of First Instance reveal an infringement of Community law but its operative part appears well founded on other legal grounds the appeal must be dismissed (see, for example, Case C-167/04 P JCB Service v Commission [2006] ECR I‑8935, paragraph 186; similarly, see Commission v Tetra Laval, cited above, footnote 96, paragraph 89). 128 – See, for example, paragraphs 300, 302 and 338 of the judgment under appeal. 129 – See, for example, paragraphs 378, 379, 398 and 447 of the judgment under appeal. 130 – Recitals 111 to 113 of the first clearance decision. 131 – Paragraphs 289 to 294 of the judgment under appeal. 132 – Paragraphs 295 to 324 of the judgment under appeal. 133 – Paragraph 301 of the judgment under appeal (emphasis added). 134 – Paragraph 325 of the judgment under appeal. 135 – It is not disputed that the further passage criticised by the appellants and the Commission in paragraph 491 of the judgment under appeal likewise contains a reference to the statement of objections. However, it cannot in any event be regarded as containing an error of law, because it merely summarises Impala’s submissions. For that reason this paragraph of the judgment under appeal is not considered in more detail hereafter. 136 – Paragraph 377 of the judgment under appeal. 137 – Below, I have particular regard to paragraph 335 of the judgment under appeal, because it was the subject of particularly heavy criticism by the appellants. However, my analysis applies mutatis mutandis to the other paragraphs of the judgment under appeal which have been called into question. 138 – BAT and Reynolds (cited above, footnote 121), paragraph 70. 139 – On this point see the case-law cited above, footnote 96. 140 – Tetra Laval (cited above, footnote 96), paragraph 39, and Spain v Lenzing (cited above, footnote 97), paragraph 57. 141 – As regards these three points, see again Tetra Laval (cited above, footnote 96), paragraph 39, and Spain v Lenzing (cited above, footnote 97), paragraph 57; in relation specifically to the completeness of the factual basis see also Technische Universität München (cited above, footnote 97) paragraph 14, Spain v Lenzing (cited above, footnote 97), paragraph 58, and Komninou (cited above, footnote 27), paragraph 51, which emphasises the obligation of the competent organ to consider carefully and impartially all the relevant features of the individual case. 142 – The penultimate sentence of paragraph 335 of the judgment under appeal; see also paragraphs 410, 419 and 446 of that judgment. 143 – The second sentence of paragraph 335 of the judgment under appeal. 144 – Again, in relation to this point see Tetra Laval (cited above, footnote 96), paragraph 39, and Spain v Lenzing (cited above, footnote 97), paragraph 56; and to the same effect Technische Universität München (cited above, footnote 97), paragraph 14, Spain v Lenzing (cited above, footnote 97), paragraph 58, and Komninou (cited above, footnote 27), paragraph 51. 145 – The last sentence of paragraph 335 of the judgment under appeal; to the same effect see paragraphs 410, 419 and 446 of that judgment. 146 – Paragraphs 459 and 475 of the judgment under appeal. 147 – Paragraph 414 of the judgment under appeal. 148 – Paragraph 415 of the judgment under appeal; to similar effect see paragraph 452 of the judgment under appeal. 149 – See, for example, paragraphs 398, 428 and 451 of the judgment under appeal. 150 – See above, in particular points 150 to 152. 151 – Of course, this does not affect the obligation of the undertakings concerned to lodge a notification of their concentration which is materially correct and complete (on this point, see Article 3(1) of Regulation) No 447/98). In addition, the parties to the concentration are obliged to answer any requests by the Commission for information comprehensively, truthfully and within the applicable time-limit (Article 11(1) in conjunction with Article 11(4) and (5) of the Merger Regulation). 152 – The parties to the concentration are made aware of the progress of the procedure prior to the statement of objections (discussions take place, and the notifying parties are told the areas in which the Commission has serious doubts as regards the compatibility of the concentration with the common market when the formal investigation procedure is initiated under Article 6(1)(c) of the Merger Regulation), but this information is much less detailed than a statement of objections and depending on how the market investigation proceeds can also change as matters progress. 153 – If it should appear clearly that in their notification of the concentration or in their answer to the Commission’s questionnaire the undertakings concerned supplied incorrect or incomplete information, this would be an infringement of their obligation to cooperate with the Commission in the merger control procedure and could also lead to the legal consequences laid down in Article 8(5)(a) of the Merger Regulation and Article 14(1)(b) and (c) of the Merger Regulation (revocation of the clearance decision and imposition of fines). 154 – Article 19(3) to (7) of the Merger Regulation. 155 – On this point, see again in particular paragraphs 414 and 415 of the judgment under appeal (emphasis added). 156 – On this point, see again the case-law cited above, footnote 127. 157 – See above, points 93 to 144. 158 – The following discussion applies also to the part of the sixth ground of appeal contained in paragraphs 98 to 100 and 102 of the appeal. 159 – Tetra Laval (cited above, footnote 96), paragraph 42; see also General Electric (cited above, footnote 96), paragraph 64. 160 – Tetra Laval (cited above, footnote 96), paragraph 44 (emphasis added). 161 – Paragraph 12 above. 162 – General Electric (cited above, footnote 96), paragraph 64, last sentence (emphasis added). 163 – Tetra Laval (cited above, footnote 96), paragraph 39, Spain v Lenzing (cited above, footnote 97), paragraph 57, and General Electric (cited above, footnote 96), paragraph 63; see also above, paragraphs 173 and 174. 164 – For a different view, see the Opinion of Advocate General Tizzano in Tetra Laval (cited above, footnote 96), paragraph 74, who holds that the notified transaction must very probably lead to the creation or strengthening of a dominant position if it is to be prohibited. 165 – See paragraphs 126 and 173 of the judgment under appeal. 166 – To similar effect, see the Opinion of Advocate General Tizzano in Tetra Laval (cited above, footnote 96), paragraph 74: ‘It therefore cannot be claimed that in order to prohibit a concentration the Commission must establish with absolute certainty that the concentration would lead to the creation or strengthening of a dominant position as a result of which effective competition would be significantly impeded in the common market or in a substantial part of it’ (emphasis added). 167 – For an example from environmental law, see Case C-127/02 Landelijke Vereniging tot Behoud van de Waddenzee and Nederlandse Vereniging tot Bescherming van Vogels [2004] ECR I‑7405, paragraphs 44 and 55 to 59. 168 – On this point see, on the one hand, the third and fourth recitals to the Merger Regulation and, on the other, the fifth recital thereto. 169 – See also the first, second and fifth recitals of the Merger Regulation. The protection of competition against distortion also serves the interests of all market participants, including consumers (on this point, see Case 6/72 Europemballage and Continental Can v Commission [1973] ECR 215, paragraph 25, Case 322/81 Michelin v Commission [1983] ECR 3461, paragraph 125, and Case C-95/04 P British Airways v Commission [2007] ECR I-2331, paragraph 106). 170 – Tetra Laval (cited above, footnote 96), paragraph 41; see also Kali & Salz (cited above, footnote 16), paragraph 228, which refers to, ‘cogent and consistent evidence’. The German translation of Tetra Laval, which refers to ‘eindeutig’ evidence, does not appear to me to be a correct translation of the English phrase ‘convincing evidence’; accordingly, here and in the following I use the adjective ‘überzeugend’ to mean ‘convincing’. 171 – Tetra Laval (cited above, footnote 96), paragraph 44. 172 – Tetra Laval (cited above, footnote 96), paragraph 41 (emphasis added). 173 – Tetra Laval (cited above, footnote 96), paragraph 42. 174 – Tetra Laval (cited above, footnote 96), paragraph 39, and General Electric (cited above, footnote 96), paragraph 63; in addition, see above, points 173 and 174. 175 – These interests are, on the one hand, the rights and interest of the parties to the concentration and, on the other, the public interest in the protection of competition from distortion; again, on this point see above, point 214. 176 – See also General Electric (cited above, footnote 96), paragraph 61. 177 – Case T-87/05 EDP v Commission [2005] ECR II‑3745, paragraph 64. 178 – In relation to Article 10(6) of the Merger Regulation, see also above, point 102. 179 – Opinion of Advocate General Tizzano in Tetra Laval (cited above, footnote 96), paragraphs 76 to 81, in particular paragraph 76. 180 – See for example paragraphs 290, 294, 303, 347, 362, 407 and 435 of the judgment under appeal. 181 – See for example recitals 80, 87, 94, 101, 108, 111, 113, 150, 153 and 158 of the first clearance decision. 182 – At first instance too, the Commission said it felt it possible to defend the first clearance decision on the basis of a ‘balance of probabilities’ (see paragraph 7 of its response at first instance). 183 – In particular, the appellants refer to paragraphs 289, 366, 381 to 387, 389, 407, 420, 428, 429, 433, 449 to 457 and 459 of the judgment under appeal. 184 – See above, points 212 to 218. 185 – Paragraphs 289 and 459 of the judgment under appeal; see also paragraphs 287, 366 and 371 of that judgment. 186 – See in particular paragraphs 377, 390, 459 and 542 of the judgment under appeal. 187 – The following discussion applies also in relation to the part of the sixth ground of appeal contained in paragraphs 101 and 102 of the appeal. 188 – Paragraph 299 of the judgment under appeal. 189 – Paragraph 307 of the judgment under appeal; the appellants refer in addition to paragraphs 421, 419, 424, 444 and 457 of the judgment under appeal, in which they identify similar statements by the Court of First Instance. 190 – Paragraph 317 of the judgment under appeal. 191 – Paragraphs 347 and 361 of the judgment under appeal. 192 – Paragraph 354 of the judgment under appeal. 193 – Paragraph 402 of the judgment under appeal. It should be observed that this claim is based on the – authoritative – English language version of the judgment (‘destined to become public knowledge’), whereas the French language version states that a campaign discount, ‘semble, par essence, avoir vocation à revêtir un caractère de publicité’, which seems not to be very similar to the English term, ‘public knowledge’ (emphasis added). 194 – Paragraphs 403, 405, 406 and 436 of the judgment under appeal. 195 – Paragraph 420 of the judgment under appeal. 196 – Paragraph 456 of the judgment under appeal. 197 – See in particular the discussion concerning the first and sixth grounds of appeal in paragraphs 126 and 173 above. 198 – Case T-342/00 Petrolessence and SG2R v Commission [2003] ECR II‑1161, paragraph 101, EDP (cited above, footnote 177), paragraph 151, Case T-177/04 easyJet v Commission [2006] ECR II‑1931, paragraph 44. 199 – In passing it may be mentioned that the context in which the appellants’ criticism of some of the findings appears, namely those in paragraphs 299, 307 and 317 of the judgment under appeal, indicates that they belong to the formal review of the first clearance decision for failure to state reasons. That criticism is principally addressed by what has been said above as regards the third part of the sixth ground of appeal (see in particular paragraphs 114 to 131). However, given that the appellants appear to assume that paragraphs 299, 307 and 317 of the judgment under appeal contain also elements of the review of the substance of the first clearance decision for manifest errors of assessment, in the following I consider them also on this footing. 200 – Tetra Laval (cited above, footnote 96), paragraph 39; likewise Spain v Lenzing (cited above, footnote 97), paragraphs 56 and 57, and General Electric (cited above, footnote 96), paragraph 63. 201 – See already above, paragraph 179, albeit in a different context. 202 – Again, see Tetra Laval (cited above, footnote 96), paragraph 39, most recently confirmed in Spain v Lenzing (cited above, footnote 97), paragraph 57. 203 – See paragraph 479 of the judgment under appeal: ‘It is not for the Court to rule on the compatibility of the concentration with the common market, but to review the lawfulness of the findings made in the Decision.’ 204 – Paragraph 452 of the judgment under appeal. 205 – Case C-229/05 P PKK and KNK v Council [2007] ECR I‑445, paragraph 37, Case C-326/05 P Industrias Químicas del Vallés v Commission [2007] ECR I-00000, paragraph 60, and Case C-260/05 P Sniace v Commission [2007] ECR I‑00000, paragraph 37. 206 – Case C-551/03 P General Motors v Commission [2006] ECR I‑3173, paragraph 54, JCB Service (cited above, footnote 127), paragraph 108, and Wunenburger (cited above, footnote 44), paragraph 67. 207 – Commission document of 21 September 2005 responding to written questions from the Court of First Instance. 208 – ‘As regards the tables, which are intended to show the maximum campaign discounts granted by Sony and BMG for their best-selling albums, …’ (emphasis added). 209 – In the French language version of the judgment under appeal paragraph 425 begins, ‘S’agissant des tableaux de l’annexe E 4.2 qui ont pour objet de montrer les remises promotionnelles maximales accordées par Sony et BMG pour leurs albums les mieux vendus, …’ (emphasis added). 210 – The heading on the cover sheet to Annex E.4.2 reads: ‘Invoice discounts granted to each major customer for each top album listed in Annex B.13, with an estimate of the highest campaign discount granted to each customer for such albums’. 211 – For example, in the third column of the first table in Annex E.4.2 the lowest discount granted by Sony (SMEI) is compared with the highest discount granted by Bertelsmann (BMG); the same occurs in the third column of the second table in Annex E.4.2. 212 – See, for example, paragraphs 393, 401, 415, 416, 420 to 428 and 455 to 457 of the judgment under appeal, which refer to ‘tables’ (in German, ‘Tabellen’), whereas, for example, paragraphs 129 and 419 of the judgment under appeal refer to ‘charts’ (in German, ‘Grafiken’). 213 – This context appears from paragraphs 431 and 433 of the judgment under appeal. 214 – This is Annex B.17 to the Commission’s response at first instance. 215 – Paragraph 434 of the judgment under appeal (emphasis added). 216 – Paragraphs 352 to 361 and 451 of the judgment under appeal. 217 – See paragraph 352 of the judgment under appeal, which quotes from recital 113 of the first clearance decision. 218 – Paragraphs 356 to 360, 389 and 451 of the judgment under appeal. 219 – Joined Cases 42/59 and 49/59 Snupat v High Authority [1961] ECR 53, at p. 84, Case C-480/99 P Plant and Others v Commission and South Wales Small Mines [2002] ECR I‑265, paragraph 24, and Case C-199/99 P Corus UK v Commission [2003] ECR I‑11177, paragraph 19). See also the judgments of the European Court of Human Rights in Feldbrugge v The Netherlands (1986) Series A, No. 99, p. 16, paragraph 44, and Aksoy (Eroğlu) v Turkey, 31 October 2006, Application No. 59741/00, paragraph 21, and the case-law referred to there. 220 – See for example the order in Case T-271/03 Deutsche Telekom v Commission [2006] ECR II‑1747. 221 – Case C-411/04 P Salzgitter Mannesmann v Commission [2007] ECR I‑959, paragraph 43. 222 – Even if I have considerable doubt after looking at the case file from the proceedings at first instance as to whether such an approach was justified in the present case, it is not the task of the Court in the present appeal proceedings to call in question the Court of First Instance’s assessment as to the confidentiality of these documents. 223 – Paragraphs 348 to 362, in particular paragraph 362, of the judgment under appeal. 224 – To the same effect, see Aalborg Portland (cited above, footnote 121), paragraph 72, Musique Diffusion française (cited above, footnote 117), paragraph 30, and Case T-30/91 Solvay v Commission [1995] ECR II‑1775, paragraph 58. 225 – Paragraphs 37 to 39 of the Commission’s response to the appeal, which is headed, ‘6. Additional observations: On the “essential grounds” of the Decision’. 226 – Paragraphs 114 to 118 of the first clearance decision. 227 – See in particular the last sentence of paragraph 39 of the Commission’s response to the appeal. 228 – Letter by the Commission dated 15 May 2007 to the Registrar of the Court. 229 – Case C-93/02 P Biret International v Council [2003] ECR I‑10497, paragraph 72, and Case C‑94/02 P Biret and Cie v Council [2003] ECR I‑10565, paragraph 75. 230 – Joined Cases C-122/99 P D and Sweden v Council [2001] ECR I‑4319, paragraph 65. 231 – To this effect see for example Case C-23/00 P Council v Boehringer [2002] ECR I‑1873, paragraph 56, and Joined Cases C-172/01 P, C-175/01 P, C-176/01 P and C-180/01 P International Power and Others v NALOO [2003] ECR I‑11421, paragraph 187.