Judgment — ECLI:EU:T:2007:203
Date: 2007-07-09
Language of the case: English
Court formation: Second Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices;Concentrations between undertakings
Concepts: Commission discretion;Assessment criteria
Procedure: Action for annulment - unfounded
Origin: Germany;Netherlands

Summary of the Judgment 1. Competition – Concentrations – Examination by the Commission – Assessment of compatibility with the common market – Compliance with the Guidelines adopted by the Commission (Council Regulation No 139/2004, Art. 2; Commission Notice 2004/C 31/03) 2. Competition – Concentrations – Assessment of compatibility with the common market – Risk of creating a collective dominant position – Criteria for assessment (Council Regulation No 139/2004, Art. 2; Commission Notice 2004/C 31/03, paras 19 to 21) 3. Competition – Concentrations – Assessment of compatibility with the common market (Council Regulation No 139/2004, Art. 2) 4. Competition – Concentrations – Assessment of compatibility with the common market 1. The Commission is bound by the Guidelines which it issues in the area of supervision of concentrations, provided they do not depart from the rules in the Treaty and from the Merger Regulation. The Guidelines do not require an examination in every case of all the factors mentioned therein, since the Commission enjoys a discretion enabling it to take account or not to take account of certain factors, and is not bound to include specific reasons concerning the assessment of a number of aspects of the concentration which seem to it manifestly irrelevant or insignificant or plainly of secondary importance for the assessment of the concentration. Review by the Community judicature of complex economic assessments made by the Commission in the exercise of the power of assessment conferred on it by the Merger Regulation is limited to ascertaining compliance with the rules governing procedure and the statement of reasons, the substantive accuracy of the facts and the absence of manifest errors of assessment or misuse of powers. In that respect, the Community judicature must not only ascertain 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. Thus, review by the Court of First Instance cannot be limited merely to establishing whether or not the Commission took into account elements mentioned in the Guidelines as relevant to the assessment of the impact of the concentration on competition. The Court must also, in the course of its review, consider whether any possible omissions on the part of the Commission are capable of calling its finding into question. (see paras 55, 57-58, 60-61) 2. Whilst it is necessary, for the purposes of showing that there is a risk of collective dominance, to establish the existence of a significant collective market share, the latter is not by itself sufficient to prove that such collective dominance exists, since market conditions must also be conducive to the creation of a collective dominant position. Thus the existence of a dominant position must be assessed on a case-by-case basis according to the circumstances of the case. Moreover, the second sentence of paragraph 21 of the Commission's Guidelines on the assessment of horizontal mergers states that exceeding the concentration thresholds laid down in paragraphs 19 to 21 of the Guidelines does not give rise to a presumption of the existence of competition concerns. However, the greater the margin by which those thresholds are exceeded, the more the values will be indicative of competition concerns. (see paras 126, 136, 138) 3. It is not necessary, in order to discourage any anti-competitive conduct on the part of the merged entity, for all its customers to be able to transfer all their orders to other suppliers. The possibility of their transferring a substantial part of their requirements to other suppliers may be regarded as a threat liable to cause sufficient losses for the merged entity to deter it from pursuing such a strategy. (see paras 171, 214) 4. Since general availability or unavailability of a raw material has the same effect on all the producers of the product concerned, including the merged entity, only preferential access for the merging parties as compared with their competitors could affect competition. (see paras 182-183)