Judgment — ECLI:EU:T:1999:327
Date: 1999-12-15
Language of the case: English
Court formation: Second Chamber, Extended Composition
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices;Dominant position
Concepts: General;Applications by natural or legal persons;Commission discretion;Assessment criteria;Division of powers between the Commission and the national authorities
Procedure: Action for annulment - unfounded
Origin: Finland

Summary of the Judgment 
1. Actions for annulment — Interest in bringing proceedings — Commission decision 
declaring a concentration incompatible with the common market — Where the 
contractual basis of the concentration has disappeared — Interest in bringing 
proceedings not affected 
(EC Treaty, Art. 173, fourth para. (now, after amendment, Art. 230, fourth para., 
EC)) 
2. Actions for annulment — Interest in bringing proceedings — Where the applicant has 
complied with the contested decision — Interest in bringing proceedings not affected 
(EC Treaty, Art. 173, fourth para. (now, after amendment, Art. 230, fourth para., 
EC)) 
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SUMMARY — CASE T-22/97 
3. Competition — Concentrations between undertakings — Concentration with no 
Community dimension — Investigation by the Commission at the request of a 
Member State — Request under Article 22(3) of Regulation No 4064/89 — Mean­
ing — Whether it is for the Commission to determine how powers and responsibilities 
are divided between national authorities — Not possible 
(Council Regulation No 4064/89, Art. 22(3)) 
4. Actions for annulment —Jurisdiction of the Community judicature — Whether it may 
rule on the lawfulness of a measure adopted by a national authority — Not possible 
(EC Treaty, Art. 173 (now, after amendment, Art. 230 EC)) 
5. Competition — Concentrations between undertakings — Concentration with no 
Community dimension — Effect on trade between Member States — Criteria — 
Potential effect — Covered 
(EC Treaty, Arts 85 and 86 (now Arts 81 EC and 82 EC); Council Regulation 
No 4064/89, Art. 22(3)) 
6. Competition — Concentrations between undertakings — Concentration with no 
Community dimension — Creation or strengthening of dominant position — Assess­
ment must take into account the conditions laid down in Article 2(1)(a) and (b) of 
Regulation No 4064/89 
(Council Regulation No 4064/89, Arts 2, 3 and 22) 
7. Competition — Concentrations between undertakings — Concentration with no 
Community dimension — Investigation by the Commission at the request of a 
Member State — Assessments of an economic nature — Discretionary margin of 
appraisal — judicial review — Limits 
(Council Regulation No 4064/89, Arts 2 and 22(3)) 
1. The fact that the contractual basis for a 
concentration has disappeared cannot 
in itself exclude judicial review of the 
legality of a Commission decision 
declaring that concentration incompa­
tible with the common market. The 
applicant undertaking therefore retains 
an interest in seeking annulment of that 
decision. 
2. Where an undertaking has merely 
complied with a Commission decision, 
as it was obliged to do, it cannot on 
that account be deprived of its interest 
in seeking annulment of that decision. 
3. It is not for the Commission to rule on 
the division of competences by the 
institutional rules proper to each Mem­
ber State. Accordingly, it is not for the 
Commission to determine, at the stage 
of the administrative procedure for 
monitoring concentrations of under­
takings, whether a particular national 
authority is competent under national 
law to submit a request under Arti­
cle 22(3) of Regulation No 4064/89; 
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KESKO V COMMISSION 
the Commission is required only to 
verify that the request referred to it is 
prima facie a request made by a 
Member State within the meaning of 
that provision. The notion of a request 
by a 'Member State' within the mean­
ing of Article 22(3) is not limited to 
requests from a government or minis­
try, but also encompasses requests from 
national anti-trust authorities. 
4. In an action brought under Article 173 
of the EC Treaty (now, after amend­
ment, Article 230 EC), the Community 
judicature has no jurisdiction to rule on 
the lawfulness of a measure adopted by 
a national authority. 
5. It is necessary to apply to the criterion 
of an effect on trade between Member 
States, within the meaning of Arti­
cle 22(3) of Regulation No 4064/89, 
an interpretation which is consistent 
with that given to it in the context of 
Articles 85 and 86 of the Treaty (now 
Articles 81 EC and 82 EC). According 
to that interpretation, it is not neces­
sary that the conduct in question 
should in fact have substantially 
affected trade between Member States. 
It is sufficient to establish that the 
conduct in question is capable of 
having such an effect. Secondly, it 
makes no difference whether such 
conduct is confined to a single Member 
State as long as it is capable of affecting 
patterns of trade and competition in 
the common market. 
That conclusion is not invalidated by 
the fact that the word 'may', appearing 
in Articles 85 and 86 of the Treaty, 
does not feature in Article 22(3) of 
Regulation No 4064/89. It is apparent 
from the very nature of the control of 
concentrations established by Regula­
tion No 4064/89 that the Commission 
is required to carry out a prospective 
analysis of the effect of the concentra­
tion in question, and hence to consider, 
in the context of Article 22(3) of that 
regulation, its effect on trade between 
Member States in the future. It follows 
that the Commission is entitled, in that 
context, to take account of potential 
effects on trade between Member 
States, provided that they are suffi­
ciently appreciable and foreseeable, 
without being required to establish that 
the concentration in question has actu­
ally affected intra-Community trade. 
6. Article 3 of Regulation No 4064/89 on 
the control of concentrations between 
undertakings merely defines the criteria 
governing the existence of a 'concen­
tration'. Where, in a proceeding under 
A r t i c l e 2 2 ( 3 ) of R e g u l a t i o n 
No 4064/89, the Commission finds 
that an operation does indeed consti­
tute a concentration within the mean­
ing of Article 3, it is in no way bound, 
when assessing the effect of the con­
centration at issue on competition, to 
apply the control test referred to in 
Article 3. The question whether that 
concentration creates or strengthens a 
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SUMMARY — CASE T-22/97 
dominant position as a result of which 
effective competition would be signifi­
cantly impeded within the territory of 
the Member State concerned must take 
account of the conditions laid down by 
Article 2(l)(a) and (b) of Regulation 
No 4064/89, in accordance with the 
first sentence of Article 22(4) of that 
regulation. 
7. The Commission is required, in the 
context of a request under Arti­
cle 22(3) of Regulation No 4064/89, 
to verify, by means of a prospective 
analysis of the markets concerned, 
whether the concentration referred to 
will give rise to the creation or 
strengthening of a dominant position 
as a result of which effective competi­
tion will be significantly impeded 
within the territory of the Member 
State concerned. In that connection, 
the basic provisions of the regulation, 
in particular Article 2 thereof, confer 
on the Commission a certain power of 
appraisal, especially with respect to 
assessments of an economic nature. 
Consequently, review by the Commu­
nity judicature of the exercise of that 
power, which is essential for defining 
the rules on concentrations, must take 
account of the discretionary margin of 
appraisal implicit in the provisions of 
an economic nature which form part of 
the rules on concentrations. 
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