Judgment — ECLI:EU:T:1999:37
Date: 1999-03-04
Language of the case: Italian
Court formation: First Chamber, Extended Composition
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices
Concepts: Statement of reasons;General;Proceedings;Decision of the Commission;Definition of concentration
Procedure: Action for annulment - unfounded
Origin: Italy

Summary of the Judgment 
1. Actions for annulment — Actionable measures — Measures producing legal effects — 
Commission decision finding that the setting up of a joint venture falls outside the 
scope of Regulation No 4064/89 
(EC Treaty, Art. 173; Council Regulation No 4064/89) 
2. Competition — Concentrations between undertakings — Scope of Regulation 
No 4064/89 — Setting up of a joint venture — Conditions — Operational autono­
my — Criteria of assessment — Support from parent companies — Limits 
(Council Regulation No 4064/89, Art. 3(2)) 
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SUMMARY — CASE T-87/96 
3. Competition — Administrative proceedings — Observance of the rights of the 
defence — Decision finding that a notified operation falls outside the scope of 
Regulation No 4064/89 — Obligations of the Commission 
(Council Regulation No 4064/89, Arts 6(1) (a) and 18) 
4. Acts of the institutions — Statement of reasons — Obligation — Scope — Decision 
concerning concentrations between undertakings 
(EC Treaty, Art. 190) 
1. Any decision which brings about a 
distinct change in the legal position of 
the undertakings concerned by produ­
cing definitive legal effects is an action­
able measure. 
That is the position in the case of a 
Commission decision finding that the 
setting up of a joint venture does not 
constitute a concentration for the pur­
poses of Regulation No 4064/89 and 
accordingly does not fall within the 
scope thereof. Such a decision has the 
effect, in particular, of bringing that 
operation under the prohibition on 
agreements, decisions and concerted 
practices under Article 85 of the Treaty 
and the separate and distinct procedure 
provided for in Regulation No 17. It 
thus affects the legal position of the 
undertakings concerned by depriving 
them of the opportunity of having the 
lawfulness of the operation in question 
reviewed purely from a structural point 
of view under the accelerated proce­
dure introduced by Regulation 
No 4064/89, with a view to securing 
a definitive decision on compatibility 
with Community law. 
In those circumstances, the contested 
decision is not merely a preparatory 
measure against whose unlawfulness 
adequate judicial protection may be 
afforded to the persons concerned by 
means of an action against the decision 
on the application of Article 85 of the 
Treaty. It constitutes a definitive deci­
sion which may form the subject-mat­
ter of an action for annulment under 
Article 173 of the Treaty in order to 
secure judicial protection of undertak­
ings ' r ights under Regula t ion 
No 4064/89. 
2. It follows from the wording of Arti­
cle 3 of Regulation No 4064/89 that 
the creation of a joint venture is 
covered by that Regulation only if it 
enjoys operational autonomy and its 
creation does not have as its object or 
effect the coordination of the competi­
tive behaviour of the undertakings 
concerned. 
Since Regulation No 4064/89 does not 
clarify the criteria making it possible to 
determine to what extent those two 
conditions may be regarded as satis-
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ASSICURAZIONI GENERALI AND UNICREDITO V COMMISSION 
fied, regard must be had, above all, 
when interpreting those conditions, to 
their purpose which is to demarcate the 
scope of Regulation No 4064/89 as 
opposed to that of Regulation No 17, 
the two regulations being mutually 
exclusive. Under the former version of 
Regulation No 4064/89, that entails an 
assessment of the commercial signifi­
cance of the matters on which there is 
to be cooperation in relation to struc­
tural aspects. 
In order to assess the effect of the 
parent companies' support on the 
operational autonomy of the joint 
venture, regard must be had to the 
characteristics of the market in ques­
tion and a determination must be made 
of the extent to which that undertaking 
carries out the functions normally per­
formed by other undertakings operat­
ing on that market. 
Although, admittedly, an existing but 
not yet operational undertaking which 
has recourse to outside companies for 
certain specific services cannot be 
regarded as bereft of functional autono­
my, that is not the case where the joint 
venture is dependent on its parent 
companies for the provision of all of 
those services beyond an initial run-
ning-in period during which such assis­
tance may be deemed to be justified in 
order to enable the joint venture to 
gain access to the market. 
3. Article 18 of Regulation No 4064/89 
expressly confers on undertakings 
which are concerned, including the 
notifying undertakings, the right to be 
heard before the adoption of certain 
types of decisions specified therein. It 
does not mention decisions finding, 
pursuant to Article 6(1)(a), that the 
operation notified is not covered by 
Regulation No 4064/89. 
None the less, observance of the rights 
of the defence constitutes a fundamen­
tal principle of Community law and 
must therefore be observed prior to the 
adoption of any decision likely to have 
an adverse effect on the undertakings 
concerned. 
When, following notification of a con­
centration, the Commission has clearly 
stated in its initial request for informa­
tion the need to have further details on 
a particular point, it cannot be bound 
by the requirements inherent in obser­
vance of the rights of the defence to 
repeat its request where the reply to a 
request for information has been inade­
quate. 
4. In cases concerning the prior examina­
tion of concentration operations, the 
question whether a contested decision 
is adequately reasoned in law must be 
ascertained in the light of the informa­
tion and documents available to the 
Commission at the time of its adoption. 
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