Order — ECLI:EU:T:1997:82
Date: 1997-06-03
Language of the case: English
Court formation: Fifth Chamber, Extended Composition
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices
Concepts: Confidential treatment of information communicated to the Court
Procedure: Action for annulment;Application to intervene - successful
Origin: United Kingdom

Summary of the Judgment 
1. Actions for annulment — Interest in bringing proceedings — Addressee of a decision 
declaring a concentration incompatible with the common market 
(EC Treaty, Art. 173, fourth para.) 
2. Competition — Concentrations between undertakings — Regulation No 4064/89 — 
Territorial scope 
(Council Regulation No 4064/89, Art. 1) 
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SUMMARY — CASE T-102/96 
3. Competition — Concentrations between undertakings — Concentration planned by 
undertakings established outside the Community — Concentration producing effects 
within the Community — Application of Regulation No 4064/89 — Whether 
permissible under public international law 
(Council Regulation No 4064/89) 
4. Community law — Interpretation — Acts of the institutions — Positions adopted at 
the drafting stage — Of less importance than the measure's wording and purpose 
5. Competition — Concentrations between undertakings — Regulation No 4064/89 — 
Scope — Collective dominant position — Covered 
(EC Treaty, Arts 85 and 86; Council Regulation No 4064/89) 
6. Competition — Concentrations between undertakings — Investigation by the Com­
mission — Assessments of an economic nature — Discretion — Judicial review — 
Limits 
(Council Regulation No 4064/89, Art. 2) 
7. Competition — Concentrations between undertakings — Assessment of compatibility 
with the common market — Existence of structural links before the concentration 
operation — Alteration of competitive relationships following the concentration 
(Council Regulation No 4064/89) 
8. Competition — Concentrations between undertakings — Assessment of compatibility 
with the common market — Existence of a dominant position impeding effective 
competition — Evidence — Market shares 
(EC Treaty, Art. 3(g); Council Regulation No 4064/89, Art. 2(3)) 
9. Competition — Concentrations between undertakings — Assessment of compatibility 
with the common market — Collective dominant position — Criteria — Structural 
links between the undertakings concerned — Not a necessary condition 
(Council Regulation No 4064/89, Art. 2(3)) 
10. Competition — Concentrations between undertakings — Investigation by the Com­
mission — Commitments entered into by the undertakings concerned likely to make 
the notified concentration compatible with the common market 
(Council Regulation No 4064/89, Art. 2(2) and (3) and Art. 8(2)) 
1. An action for annulment brought by a 
natural or legal person is admissible 
only in so far as that person has an 
interest in the contested measure being 
annulled; that is the position where 
annulment would enable future repeti­
tion of the alleged illegality to be 
avoided. 
The undertaking to which a decision 
declaring a concentration incompatible 
with the common market was 
addressed has an interest in bringing 
proceedings and in having the legality 
of that decision examined by the Com­
munity judicature. 
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GENCOR V COMMISSION 
2. Article 1 of Regulation No 4064/89 
does not require, in order for a con­
centration to be regarded as having a 
Community dimension and, accord­
ingly, for it to fall within the scope of 
that Regulation, that the undertakings 
in question must be established within 
the Community or that the production 
activities covered by the concentration 
must be carried out in Community 
territory. 
3. Application of Regulation No 4064/89 
is justified under public international 
law when it is foreseeable that a 
proposed concentration between 
undertakings established outside the 
Community will have an immediate 
and substantial effect within the Com­
munity. 
The fact that, in a world market, other 
parts of the world are affected by the 
concentration cannot prevent the Com­
munity from exercising its control over 
a concentration which substantially 
affects competition within the common 
market by creating a dominant posi­
tion. 
4. It is necessary, when interpreting a 
legislative measure, to attach less 
importance to the position taken by 
one or other Member State when the 
measure was drawn up than to its 
wording and objectives. The fact that, 
after the adoption of a measure, certain 
Member States contest a particular 
interpretation cannot mean that it is 
inaccurate. Since Member States are 
not bound by positions which they may 
accept at the time of the debate within 
the Council, the possibility cannot be 
ruled out that one of them may subse­
quently change its view or decide to 
raise the question of the measure's 
legality before the Community judica­
ture. 
Since interpretations based on the 
wording, history and conceptual struc­
ture of a measure do not permit its 
precise scope to be assessed, that mea­
sure must be interpreted by reference to 
its purpose. 
5. Given its purpose, Regulation No 4064/89 
on the control of concentrations 
between undertakings applies to 
collective dominant positions. Unlike 
Articles 85 and 86 of the Treaty, that 
measure is intended to apply to all 
concentrations with a Community 
dimension in so far as, because of their 
effect on the structure of competition 
within the Community, they may prove 
incompatible with the system of undis-
torted competition envisaged by the 
Treaty. A concentration which creates 
or strengthens a dominant position on 
the part of the parties concerned toge­
ther with an entity not involved in the 
concentration is liable to prove incom­
patible with the system of undistorted 
competition laid down by the Treaty. 
Consequently, if it were accepted that 
only concentrations creating or 
strengthening a dominant position on 
the part of the parties to the concen-
II - 755 
SUMMARY — CASE T-102/96 
tration were covered by the Regula­
tion, its purpose would be partially 
frustrated. The Regulation would thus 
be deprived of a not insignificant 
aspect of its effectiveness, without that 
being necessary from the perspective of 
the general structure of the Community 
system of control of concentrations. 
6. In assessing, in the context of its 
endeavours to control concentrations, 
whether there is a collective dominant 
position, the Commission is obliged to 
establish, using a prospective analysis 
of the relevant market, whether the 
concentration under investigation 
would lead to a situation in which 
effective competition in the relevant 
market would be significantly impeded 
by the undertakings involved in the 
concentration and one or more other 
undertakings which together, in parti­
cular because of factors giving rise to a 
connection between them, are able to 
adopt a common policy on the market 
and act to a considerable extent inde­
pendently of their competitors, their 
customers and, ultimately, of consu­
mers. In that connection, the basic 
provisions of the Regulation, in parti­
cular Article 2 thereof, confer on the 
Commission a certain discretion, espe­
cially with respect to assessments of an 
economic nature. Consequently, review 
by the Community judicature of the 
exercise of that discretion, which is 
essential for defining the rules on 
concentrations, must take account of 
the discretionary margin implicit in the 
provisions of an economic nature 
which form part of the rules on con­
centrations. 
7. The fact that, jointly with other under­
takings, one undertaking exercises a 
considerable, even decisive, influence 
over another does not by definition 
preclude competition between them; 
nor does it rule out the possibility that 
their competitive relationship could be 
altered or even eliminated following a 
concentration which alters their con­
trol structure. 
8. The prohibition enacted in Article 2(3) 
of Regulation No 4064/89 reflects the 
general objective assigned by Artic­
le 3(g) of the Treaty, that is to say, the 
establishment of a system ensuring that 
competition in the common market is 
not distorted. The prohibition relates 
to concentrations which create or 
strengthen a dominant position, a 
situation where one or more undertak­
ings wield economic power which 
would enable them to prevent effective 
competition from being maintained in 
the relevant market by giving them the 
opportunity to act to a considerable 
extent independently of their competi­
tors, their customers and, ultimately, of 
consumers. 
The existence of a dominant position 
may derive from several factors which, 
taken separately, are not necessarily 
decisive. Among those factors, the 
existence of very large market shares 
is highly important. Nevertheless, a 
substantial market share as evidence 
II - 756 
GENCOR V COMMISSION 
of the existence of a dominant position 
is not a constant factor. Its importance 
varies from market to market accord­
ing to the structure of those markets, 
especially so far as production, supply 
and demand are concerned. 
However, very large market shares are 
in themselves, save in exceptional cir­
cumstances, evidence of the existence 
of a dominant position. An undertak­
ing which has a very large market share 
and holds it for some time, by means of 
the volume of production and the scale 
of the supply which it stands for — 
without those having much smaller 
market shares being able rapidly to 
meet the demand from those who 
would like to break away from the 
undertaking which has the largest mar­
ket share — is in a position of strength 
which makes it an unavoidable trading 
partner and which, already because of 
this, secures for it, at the very least 
during relatively long periods, that 
freedom of action which is the special 
feature of a dominant position. 
In the context of an oligopoly, the fact 
that the parties to the oligopoly hold 
large market shares does not necessa­
rily have the same significance, com­
pared to the analysis of an individual 
dominant position, with regard to the 
opportunities for those parties, as a 
group, to act to a considerable extent 
independently of their competitors, 
their customers and, ultimately, of 
consumers. Nevertheless, particularly 
in the case of a duopoly, a large market 
share is, in the absence of evidence to 
the contrary, likewise a strong indica­
tion of the existence of a collective 
dominant position. 
9. Two or more independent economic 
entities may be united by economic 
links in a specific market and, by virtue 
of that fact, may together hold a 
dominant position vis-à-vis the other 
operators on the same market. The 
existence of structural links is not a 
necessary condition for the existence of 
a dominant position of that nature. 
There is no reason whatsoever in legal 
or economic terms to exclude from the 
notion of economic links the relation­
ship of interdependence existing 
between the parties to a tight oligopoly 
within which, in a market with the 
appropriate characteristics, in particu­
lar in terms of market concentration, 
transparency and product homogene­
ity, those parties are in a position to 
anticipate one another's behaviour and 
are therefore strongly encouraged to 
align their conduct in the market, in 
particular in such a way as to maximise 
their joint profits by restricting produc­
tion with a view to increasing prices. 
10. Under Regulation No 4064/89 the 
Commission has power to accept only 
such commitments as are capable of 
rendering the notified transaction com­
patible with the common market. In 
other words, the commitments offered 
II - 757 
SUMMARY — CASE T-l 02/96 
by the undertakings concerned must 
enable the Commission to conclude 
that the concentration at issue would 
not create or strengthen a dominant 
position within the meaning of Arti­
cle 2(2) and (3) of the Regulation. 
The categorisation of a proposed com­
mitment as behavioural or structural is 
therefore immaterial. It is true that 
commitments which are structural in 
nature, such as a commitment to 
reduce the market share of the entity 
arising from a concentration by the sale 
of a subsidiary, are, as a rule, preferable 
from the point of view of the Regula­
tion's objective, inasmuch as they pre­
vent once and for all, or at least for 
some time, the emergence or strength­
ening of the dominant position pre­
viously identified by the Commission 
and do not, moreover, require medium 
or long-term monitoring measures. 
Nevertheless, the possibility cannot 
automatically be ruled out that com­
mitments which prima facie are beha­
vioural — for instance, not to use a 
trade mark for a certain period, or to 
make part of the production capacity 
of the entity arising from the concen­
tration available to third-party compe­
titors, or, more generally, to grant 
access to essential facilities on non­
discriminatory terms — may them­
selves also be capable of preventing 
the emergence or strengthening of a 
dominant position. 
II - 758