Judgment — ECLI:EU:T:2017:144
Date: 2017-03-07
Language of the case: English
Court formation: Fourth Chamber
Subject matter: Competition;Agreements, decisions and concerted practices
Procedure: Action for annulment - successful

summary of the pleas in law, and that that statement must be sufficiently clear and precise as to enable the defendant to prepare its defence and the Court to rule on the application, if necessary without any other supporting information 192 It should also be noted that, in particular, it is necessary, for an action before the Court to be admissible, that the basic matters of law and fact relied on be indicated, at least in summary form, coherently and intelligibly in the application itself. Whilst the body of the application may be supported and supplemented on specific points by references to extracts from documents annexed thereto, a general reference to other documents, even those annexed to the application, cannot make up for the absence of the essential arguments in law which, in accordance with the above mentioned provisions, must appear in the application (judgment of 11 September 2014, MasterCard and Others v Commission, C‑382/12 P, EU:C:2014:2201, paragraph 40). 193 In the present case, the applicant submits that the Commission infringed its rights of defence by substantially changing — without hearing its views in that regard — the econometric model that it had submitted concerning the likely effects of the merger on prices. 194 It must be pointed out that the matters of fact and law on which the applicant bases the first part of its second plea in law are immediately intelligible from a reading of the application. Although the applicant indeed refers to Annex A.6 to the application in order to demonstrate the alleged changes, its line of argument criticising the use of the econometric analysis in question can be seen, albeit summarily, from the text of the application itself. 195 In addition, it must also be pointed out that the Commission was able, in its defence, to respond to the first part of the second plea in law raised by the applicant, which reinforces the point that, although it is true that the first part of the second plea in law is not set out in detail, the content of that part is clear. 196 Moreover, although the Court had to refer to Annex A.6 in order to assess the evidence supporting the first part of the second plea in law, it did not have to seek and identify in Annex A.6 to the application the arguments raised in support of the first part of the second plea in law. 197 It follows from the foregoing that the present part of the second plea in law is admissible having regard to the requirements of Article 76(d) of the Rules of Procedure. 2. The merits of the first part of the second plea in law 198 In order to assess the first part of the second plea in law, relating to the likely effects of the merger on prices, the Court must verify whether the applicant’s rights of defence were affected by the circumstances in which the econometric analysis in question was based on an econometric model different from that which had been the subject of an exchange of views and arguments during the administrative procedure. 199 In that regard, it must be recalled, as a preliminary point, that observance of the rights of the defence is a general principle of EU law enshrined in the Charter of Fundamental Rights of the European Union which must be guaranteed in all proceedings, including merger proceedings before the Commission (see, to that effect, judgment of 9 March 2015, Deutsche Börse v Commission, T‑175/12, not published, EU:T:2015:148, paragraph 247). 200 It has also been held that the right to a fair hearing, which forms part of the rights of the defence, requires that the undertaking concerned must have been afforded the opportunity, during the administrative procedure, to make known its views on the truth and relevance of the facts and circumstances alleged and on the documents used by the Commission to support its claim (see judgment of 10 July 2008, Bertelsmann and Sony Corporation of America v Impala, C‑413/06 P, EU:C:2008:392, paragraph 61 and the case-law cited). 201 In the present case, in the first place, it must be noted that, as can be seen from recitals 721 to 740 of the contested decision, the Commission relied inter alia on the econometric analysis in question in order to identify the number of SIEC States. 202 In that regard, the Commission adopted the final version of its econometric model on 21 November 2012, more than two months before the adoption of the contested decision on 30 January 2013, as is clear from the documents submitted by the Commission in annex to its rejoinder. 203 It is also clear from the documents in the file that the final version of the econometric model was not communicated to the applicant, since, according to the Commission, it was unnecessary to make such a communication because it was clear from the Commission’s numerous exchanges with the applicant during the administrative procedure. 204 The Commission emphasises, in essence, that the final model, as presented in the contested decision, is only marginally different from the models that were discussed with the applicant during the administrative procedure. 205 Although there are indeed numerous similarities between the final econometric model and those discussed during the administrative procedure, the changes made to the final model nevertheless cannot be regarded as negligible. 206 It can be seen from the observations of the Commission and of the applicant submitted after the hearing that the Commission relied on two different variables at the stage of the statistical estimation of the effects of the loss of a competitor on prices and at the stage of the prediction of the effects of the merger on prices. 207 Thus, the Commission relied on a discrete variable at the estimation stage and on a continuous variable at the prediction stage. 208 Although the use of a discrete variable had been discussed repeatedly during the administrative procedure, it does not appear from the file that that was also the case as regards the use of different variables at the different stages of the econometric analysis. 209 Accordingly, the Commission cannot claim that it was not required to communicate the final econometric analysis model to the applicant before adopting the contested decision. 210 Accordingly, the applicant’s rights of defence were infringed, with the result that the contested decision should be annulled, provided that it has been sufficiently demonstrated by the applicant not that, in the absence of that procedural irregularity, the contested decision would have been different in content, but that there was even a slight chance that it would have been better able to defend itself (see, to that effect, judgment of 25 October 2011, Solvay v Commission, C‑109/10 P, EU:C:2011:686, paragraph 57). 211 In that regard, first, it must be emphasised that the Commission relied on the econometric analysis in order to find that there were SIEC States. 212 When the SO was adopted, the Commission had, as it stated at the hearing, made a provisional finding that there were 29 SIEC States on the basis of an econometric analysis showing a significant increase in prices following the merger. 213 In addition, as the Commission expressly acknowledges, the subsequent results of the econometric analysis showing a less significant increase in prices also led it to decrease the number of SIEC States to 15 in the contested decision. 214 Secondly, the applicant was already able, during the administrative procedure, to have a significant influence on the development of the econometric model proposed by the Commission, since it raised technical problems to which it provided solutions, as the Commission expressly acknowledges. 215 Accordingly, in the light of the foregoing, it must be held that, during the administrative procedure that led to the adoption of the contested decision, the applicant might have been better able to defend itself if it had had at its disposal, before the adoption of that decision, the final version of the econometric model chosen by the Commission on 21 November 2012. 216 That conclusion cannot be called into question by the Commission’s claim that its findings were based on a wide range of information, both quantitative — including the econometric analysis — and qualitative. 217 As noted in paragraph 213 above, the Commission expressly acknowledges that it relied, inter alia, on the new results of the econometric analysis in order to reduce the number of SIEC States after the SO, so those results were capable, at least as regards certain States, of countering the qualitative information taken into account by the Commission. 218 Accordingly, it must be found that the applicant was deprived of information which, had it been communicated to the applicant in due time, could have allowed it to submit different results on the effects of the merger on prices, which might have given rise to a reassessment of the scope of the information taken into consideration by the Commission and, accordingly, a reduction in the number of SIEC States. 219 In the second place, when assessing alleged infringements of the rights of the defence in the context of merger control proceedings, it is indeed necessary to take into account the necessity for speed, which characterises the general scheme of the Merger Regulation (see, to that effect, judgment of 14 December 2005, General Electric v Commission, T‑210/01, EU:T:2005:456, paragraph 701). 220 Nevertheless, in the present case, as the Commission acknowledges in its written submissions, the econometric analysis was already very stable before the state of play meeting of 20 November 2012, more than two months before 30 January 2013, the date of the contested decision, with the result that the Commission was free, at the very least, to communicate the essential elements of the chosen econometric model to the applicant. 221 Accordingly, it must be concluded that the Commission infringed the applicant’s rights of defence by failing to communicate the final version of its econometric model to the applicant. 222 Consequently, the first part of the second plea in law of the action must be upheld and the contested decision must be annulled in its entirety, without it being necessary to examine the other parts of the second plea in law, or the other pleas in law put forward in the action. Costs 223 Under Article 134(1) 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. Since the applicant has applied for costs and the Commission has been unsuccessful, the latter must be ordered to bear its own costs and to pay those incurred by the applicant. The intervener must be ordered to bear its own costs. On those grounds, THE GENERAL COURT (Fourth Chamber) hereby: 1. Annuls Commission Decision C(2013) 431 of 30 January 2013 declaring a concentration to be incompatible with the internal market and the functioning of the EEA Agreement (Case COMP/M.6570 — UPS/TNT Express); 2. Orders the European Commission to bear its own costs and to pay those incurred by United Parcel Service, Inc.; 3. Orders FedEx Corp. to bear its own costs. Prek Labucka Kreuschitz Delivered in open court in Luxembourg on 7 March 2017. E. Coulon M. Prek Registrar President ** Language of the case: English.