Judgment — ECLI:EU:T:2011:588
Date: 2011-10-12
Language of the case: English
Court formation: Sixth Chamber
Subject matter: Competition;Concentrations between undertakings
Procedure: Action for annulment - inadmissible
Origin: Belgium

summary of the pleas relied upon in support of that claim. 71 In that regard, it must be observed that, under the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union, which is applicable to proceedings before the General Court by virtue of the first paragraph of Article 53 of the same statute, and under Article 44(1)(c) of the Rules of Procedure of the General Court, an application must, inter alia, state a summary of the pleas in law on which the application is based. It must, accordingly, specify the grounds on which the action is based, with the result that a mere abstract statement of the grounds is not sufficient to satisfy the requirements of the Statute of the Court of Justice and the Rules of Procedure. Moreover, the summary of the pleas in law – albeit concise – on which the application is based must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the application, if necessary, without any further information. In order to ensure legal certainty and the sound administration of justice, it is necessary – if an action or, more specifically, a plea in law is to be admissible – that the basic factual and legal particulars relied on be indicated coherently and intelligibly in the application itself (Case T‑224/00 Archer Daniels Midland and Archer Daniels Midland Ingredients v Commission [2003] ECR II‑2597, paragraph 36, and Case T‑308/05 Italy v Commission [2007] ECR II‑5089, paragraphs 71 and 72). 72 It must be held that the applicant has complied with the conditions mentioned above. Although it did not set out clearly the reasons why the circumstances of the case required the Commission to allow the referral request, the fact remains that the applicant criticised the Commission for not having examined the referral request in sufficient detail, which may imply improper use by the Commission of its discretion, and for failing to follow its previous decision-making practice in the matter. 73 It follows that the first plea of inadmissibility raised by the Commission must be rejected. 74 Second, the Commission contends that the non-referral decision does not directly or individually concern third parties such as the applicant, in contrast to the situation where a decision refers a merger investigation to a national authority, which was the issue that gave rise to the judgment in Case T‑119/02 Royal Philips Electronics v Commission [2003] ECR II‑1433. 75 It should be borne in mind that, according to settled case-law, a third party concerned by a merger is entitled to challenge, before the Court, the Commission’s decision to allow the national competition authority’s referral request (‘the referral decision’) (Royal Philips Electronics v Commission, paragraphs 299 and 300, and Joined Cases T‑346/02 and T‑347/02 Cableuropa and Others v Commission [2003] ECR II‑4251, paragraphs 81 and 82). 76 In order to answer the question of whether the same finding must be made in respect of the non-referral decision, which, by contrast, precisely does not allow such a request, it is appropriate to examine the main stages in the Court’s reasoning which led to the abovementioned finding. 77 As regards direct concern, the Court observed that the direct consequence of a referral decision is to subject a concentration in its entirety, or in part, to exclusive review by the national competition authority making the request and which rules under its national competition law. Thus, the referral decision, in so far as it affects the criteria for the assessment of the lawfulness of the concentration at issue and the procedure applicable to it, also affects the legal situation of third parties by depriving them of the opportunity to have the Commission review the lawfulness of the concentration from the point of view of EU law. In that regard, the Court stated that that finding was independent of whether national competition law, which becomes applicable following the referral decision, confers procedural rights on third parties which are similar to those to which they are entitled by virtue of EU law, as the effect of that decision is, in any event, to deprive third parties of the procedural rights conferred on them by Article 18(4) of Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings (OJ 1990 L 257, p. 13), which has the same wording as Article 18(4) of Regulation No 139/2004. Furthermore, the Court considered that the referral decision prevented third parties from challenging before it the assessments made by the national authorities, whereas, in the absence of a referral, the assessments made by the Commission could have been so challenged (see, to that effect, Royal Philips Electronics v Commission, paragraphs 280 to 287, and Cableuropa and Others v Commission, paragraphs 57 to 65). 78 As regards individual concern, the Court, inter alia, examined whether, in the absence of a referral, third parties concerned by a merger would have had the right to be heard, in accordance with Article 18(4) of Regulation No 4064/89. Having found that that was the case, it concluded that the referral decision, which had the effect of depriving third parties of the opportunity to challenge before the Court assessments which they would have been entitled to challenge had the referral not been made, individually affected those third parties in the same way as they would have been affected by the merger approval decision had the referral not been made (see, to that effect, Royal Philips Electronics v Commission, paragraphs 295 and 297, and Cableuropa and Others v Commission, paragraphs 74, 76 and 79). 79 Therefore, it must be stated that, in order to hold that an action brought against the referral decision by third parties was admissible, the Court based its finding on two considerations, namely that EU law recognises that third parties are entitled to, first, procedural rights during the merger investigation by the Commission and, second, judicial protection to challenge any infringement of those rights. 80 However, those procedural rights and that judicial protection are not in any way jeopardised by the non-referral decision, which, quite to the contrary, ensures for third parties concerned by a concentration with a Community dimension, first, that that concentration will be assessed by the Commission in the light of EU law, and second, that the Court will be the judicial body having jurisdiction to deal with any action against the Commission’s decision bringing the procedure to an end. 81 In those circumstances, the applicant’s standing to bring an action cannot be derived from an application by analogy of the case-law cited in paragraph 75 above. 82 So far as concerns the applicant’s argument that the non-referral decision modifies the conditions of assessment of the merger at issue, it must be borne in mind that Article 9(9) of Regulation No 139/2004 allows only the Member State concerned the possibility to appeal for the purpose of applying its national competition law. By contrast, there is nothing in the system for the control of concentrations with a Community dimension, as provided in that regulation, to indicate that the applicant is entitled to challenge the non-referral decision on the ground that that decision precludes the investigation of the merger at issue and the avenues of legal redress against the decision conducting that investigation from being determined by the law of a Member State, and not by EU law. 83 It should also be noted that the admissibility of an action against the non-referral decision cannot result from the fact that the national law in question may confer on the applicant more extensive procedural rights and/or judicial protection than provided for under EU law. Legal certainty precludes the admissibility of an action brought before the EU Courts from being dependent on whether the legal system of the Member State whose national competition authority unsuccessfully requested the referral of the merger investigation confers on interested third parties more extensive procedural rights and/or judicial protection than provided for under EU law. In that regard, it must be noted that the scope of those procedural rights and of judicial protection depends on a range of factors which are, firstly, difficult to compare and, secondly, subject to developments in legislation and case-law that are difficult to monitor. 84 Furthermore, the very purpose of an action for annulment before the EU Courts is to ensure compliance with EU law, irrespective of the scope of the procedural rights and judicial protection that it confers, and not to claim the more extensive protection that may be provided for under national law. 85 In the light of the foregoing, it is necessary to declare inadmissible the applicant’s head of claim seeking annulment of the non-referral decision and, therefore, to declare the action inadmissible in its entirety. Costs 86 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. In addition, under the third subparagraph of Article 87(4) of the Rules of Procedure, the Court may order an intervener to bear his own costs. 87 Since the Commission has applied for costs and the applicant has been unsuccessful, the latter must be ordered to bear its own costs and to pay those incurred by the Commission. EDF must bear its own costs. On those grounds, THE GENERAL COURT (Sixth Chamber) hereby: 1. Dismisses the action as inadmissible; 2. Orders the Association belge des consommateurs test-achats ASBL to bear its own costs and to pay those incurred by the European Commission; 3. Orders Électricité de France (EDF) to bear its own costs. Moavero Milanesi Wahl Soldevila Fragoso Delivered in open court in Luxembourg on 12 October 2011. [Signatures] * Language of the case: English.