Opinion of the Advocate General — ECLI:EU:C:2022:777
Date: 2022-10-13
Language of the case: French
Subject matter: Competition;Concentrations between undertakings;Dominant position
Procedure: Reference for a preliminary ruling
Origin: France

Summary  C-449/21 – 1 
Case C-449/21 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
21 July 2021 
Referring court:  
Cour d’appel de Paris (France) 
Date of the decision to refer:  
1 July 2021 
Applicant:  
Towercast 
Defendants:  
Autorité de la concurrence 
Ministère de l’Économie 
  
Cour d’appel de Paris 
(Court of Appeal, Paris, France) 
Judgment of 1 July 2021 
I. Subject matter of the main proceedings 
1 An action has been brought before the Cour d’appel de Paris (Court of Appeal, 
Paris, France) by the company Towercast for the annulment of a decision of the 
French competition authority discontinuing its examination of a transaction for the 
acquisition by the company TDF of a competitor company. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-449/21 
 
2  
II. Provisions relied upon 
A. European Union law 
2 Pursuant to Article 102 of the Treaty on the Functioning of the European Union 
(‘TFEU’): 
‘Any abuse by one or more undertakings of a dominant position within the 
internal market or in a substantial part of it shall be prohibited as incompatible 
with the internal market in so far as it may affect trade between Member States.’ 
3 Recitals 5 to 9, 20 and 24 of Council Regulation (EC) No 139/2004 of 20 January 
2004 on the control of concentrations between undertakings – which was the 
successor of Council Regulation (EEC) No 4064/89 of 21 December 1989 on the 
control of concentrations between undertakings – provide as follows: 
‘(5) … it should be ensured that the process of reorganisation does not result in 
lasting damage to competition; … 
(6) A specific legal instrument is therefore necessary to permit effective control 
of all concentrations in terms of their effect on the structure of competition in the 
Community and to be the only instrument applicable to such concentrations. 
Regulation (EEC) No 4064/89 has allowed a Community policy to develop in this 
field. In the light of experience, however, that regulation should now be recast into 
legislation designed to meet the challenges of a more integrated market and the 
future enlargement of the European Union. In accordance with the principles of 
subsidiarity and of proportionality as set out in Article 5 of the Treaty, this 
regulation does not go beyond what is necessary in order to achieve the objective 
of ensuring that competition in the common market is not distorted, in accordance 
with the principle of an open market economy with free competition. 
(7) Articles 81 and 82, while applicable, according to the case-law of the Court 
of Justice, to certain concentrations, are not sufficient to control all operations 
which may prove to be incompatible with the system of undistorted competition 
envisaged in the Treaty. This regulation should therefore be based not only on 
Article 83 but, principally, on Article 308 of the Treaty, under which the 
Community may give itself the additional powers of action necessary for the 
attainment of its objectives, … 
(8) The provisions to be adopted in this regulation should apply to significant 
structural changes, the impact of which on the market goes beyond the national 
borders of any one Member State. Such concentrations should, as a general rule, 
be reviewed exclusively at Community level, in application of a “one-stop shop” 
system and in compliance with the principle of subsidiarity. Concentrations not 
covered by this regulation come, in principle, within the jurisdiction of the 
Member States. 
TOWERCAST 
 
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(9) The scope of application of this regulation should be defined according to 
the geographical area of activity of the undertakings concerned and be limited by 
quantitative thresholds in order to cover those concentrations which have a 
Community dimension. … 
(20) It is expedient to define the concept of concentration in such a manner as to 
cover operations bringing about a lasting change in the control of the undertakings 
concerned and therefore in the structure of the market. …  
(24) In order to ensure a system of undistorted competition in the common 
market, in furtherance of a policy conducted in accordance with the principle of an 
open market economy with free competition, this regulation must permit effective 
control of all concentrations from the point of view of their effect on competition 
in the Community. Accordingly, Regulation (EEC) No 4064/89 established the 
principle that a concentration with a Community dimension which creates or 
strengthens a dominant position as a result of which effective competition in the 
common market or in a substantial part of it would be significantly impeded 
should be declared incompatible with the common market.’ 
4 Article 1 of Regulation No 139/2004 defines the regulation’s scope in the 
following terms: 
‘1. Without prejudice to Article 4(5) and Article 22, this [r]egulation shall apply 
to all concentrations with a Community dimension as defined in this [a]rticle. 
…’. 
5 Article 2(1) and (4) of Regulation No 139/2004 provides as follows: 
‘1. Concentrations within the scope of this [r]egulation shall be appraised in 
accordance with the objectives of this [r]egulation and the following provisions 
with a view to establishing whether or not they are compatible with the common 
market. 
In making this appraisal, the Commission shall take into account: 
(a) the need to maintain and develop effective competition within the common 
market in view of, among other things, the structure of all the markets concerned 
and the actual or potential competition from undertakings located either within or 
outwith the Community; 
…  
4. To the extent that the creation of a joint venture constituting a concentration 
pursuant to Article 3 has as its object or effect the coordination of the competitive 
behaviour of undertakings that remain independent, such coordination shall be 
appraised in accordance with the criteria of Article 81(1) and (3) of the Treaty, 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-449/21 
 
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with a view to establishing whether or not the operation is compatible with the 
common market.’ 
6 Article 3 provides as follows: 
‘1. A concentration shall be deemed to arise where a change of control on a 
lasting basis results from: 
(a) the merger of two or more previously independent undertakings or parts of 
undertakings, or 
(b) the acquisition, by one or more persons already controlling at least one 
undertaking, or by one or more undertakings, whether by purchase of securities or 
assets, by contract or by any other means, of direct or indirect control of the whole 
or parts of one or more other undertakings. 
2. Control shall be constituted by rights, contracts or any other means which, 
either separately or in combination and having regard to the considerations of fact 
or law involved, confer the possibility of exercising decisive influence on an 
undertaking, in particular by: 
(a) ownership or the right to use all or part of the assets of an undertaking; 
(b) rights or contracts which confer decisive influence on the composition, 
voting or decisions of the organs of an undertaking. 
3. Control is acquired by persons or undertakings which: 
(a) are holders of the rights or entitled to rights under the contracts concerned; 
or 
(b) while not being holders of such rights or entitled to rights under such 
contracts, have the power to exercise the rights deriving therefrom. 
…’. 
7 Article 21, headed ‘Application of the [r]egulation and jurisdiction’, reads: 
‘1. This [r]egulation alone shall apply to concentrations as defined in Article 3, 
and Council Regulations (EC) No 1/2003, (EEC) No 1017/68(9), (EEC) 
No 4056/86(10) and (EEC) No 3975/87(11) shall not apply, except in relation to 
joint ventures that do not have a Community dimension and which have as their 
object or effect the coordination of the competitive behaviour of undertakings that 
remain independent. 
2. Subject to review by the Court of Justice, the Commission shall have sole 
jurisdiction to take the decisions provided for in this [r]egulation. 
TOWERCAST 
 
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3. No Member State shall apply its national legislation on competition to any 
concentration that has a Community dimension. 
…’. 
8 Article 22, which provides for the possibility of referral to the European 
Commission, provides as follows: 
‘1. One or more Member States may request the Commission to examine any 
concentration as defined in Article 3 that does not have a Community dimension 
within the meaning of Article 1 but affects trade between Member States and 
threatens to significantly affect competition within the territory of the Member 
State or States making the request. 
…’. 
B. National law 
9 Article L.430-2 of the Code de commerce (French Commercial Code) provides as 
follows: 
‘I. Any merger operation within the meaning of Article L.430-1 is subject to 
the provisions of Article L.430-3 et seq. of the present title when the following 
three conditions are met: 
‒ the aggregate worldwide turnover exclusive of tax of all of the companies or 
of all of the natural persons or legal entities involved in the merger is greater than 
150 million euros; 
‒ the aggregate turnover exclusive of tax achieved in France by at least two of 
the companies or groups of natural persons or legal entities concerned is greater 
than 50 million euros; 
‒ the operation does not fall within the scope of Council Regulation 
No 139/2004 of 20 January 2004 on the control of concentrations between 
undertakings. 
…’. 
10 Article L.430-9 of the Code de commerce provides as follows: 
‘The Competition Authority may, in the event of the abuse of a dominant position 
or of a state of economic dependence, enjoin, by reasoned decision, the 
undertaking or group of undertakings involved to amend, supplement or cancel, 
within a specified period, all agreements and all acts by which the concentration 
of economic power allowing the abuse has been carried out, even if these acts 
have been subject to the procedure specified by this title.’ 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-449/21 
 
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11 Paragraph 314 of the 2013 version of the French guidelines on the control of 
concentrations, published by the French competition authority, states, with 
reference to the application of Article L.430-9 of the Code de commerce, that: 
‘This article applies to any abuse which has been made possible by a 
concentration operation, whether or not it has been the subject of an authorisation 
procedure before the Competition Authority or, prior to that, before the Minister.’ 
III. The facts and background to the dispute 
12 By an investment agreement concluded on 23 June 2016 and subsequently 
amended by an addendum dated 30 June 2016, the company TDF Infrastructure 
acquired the entire share capital of its competitor Itas SAS, the parent company of 
the group, and took sole control over that company. Following that operation, 
there remain on the relevant French market only two service providers, TDF and 
Towercast. 
13 The operation for the acquisition of Itas did not exceed the notification thresholds 
laid down in Article 1 of Regulation No 139/2004 and Article L.430-2 of the Code 
de commerce, and did not give rise to any procedure for the prior control of 
concentrations or to the application of the procedure for referral to the 
Commission laid down in Article 22 of Regulation No 139/2004. 
14 By letter registered on 15 November 2017, Towercast lodged a complaint with the 
French competition authority, in which it alleged that TDF’s acquisition of control 
of Itas, dated 13 October 2016, constituted an abuse of a dominant position, in that 
it hindered competition on the upstream and downstream wholesale markets for 
digital terrestrial television (‘DTT’) broadcasting by significantly strengthening 
the already dominant position enjoyed by TDF on those markets.  
15 On 25 June 2018, a statement of objections was addressed to the companies of the 
TDF group (TDF infrastructure, TDF infrastructure Holding, Tivana France 
Holdings, Tivana Midco and Tivana Topco), in which it was alleged that, ‘on 
13 October 2016, [they had], as a single undertaking for the purposes of 
competition law, abused the dominant position held by that single undertaking on 
the downstream wholesale market for DDT broadcasting by acquiring sole 
control of the Itas group’ and that that practice was liable to have the effect of 
preventing, restricting or distorting competition on the downstream wholesale 
market for DDT broadcasting, a practice prohibited by Article L.420-2 of the 
Code de commerce and by Article 102 TFEU. 
16 By Decision No 20-D-01 of 16 January 2020 (‘the contested decision’), the 
competition authority concluded that the alleged abuse of a dominant position by 
the companies of the TDF group had not been demonstrated and that it was 
therefore not appropriate to continue the procedure.  
TOWERCAST 
 
7 
17 Towercast brought an action against that decision, seeking its annulment. The 
companies of the TDF group request the Cour d’appel de Paris to uphold that 
decision in its entirety and to dismiss Towercast’s action. The competition 
authority, the Minister for Economic Affairs and the Public Prosecutor agree with 
the analysis in the contested decision and also request the referring court to 
dismiss the action. 
IV. Arguments of the parties  
A. The competition authority  
18 In the contested decision, and before the referring court, the competition authority 
argues that, with the adoption of Regulations Nos 4064/89 and 139/2004, a clear 
dividing line was drawn between the control of concentrations and the control of 
anti-competitive practices and that the creation of a specific regime for the control 
of concentrations at European Union level de facto rendered obsolete the 
application of the ‘Continental Can’ line of case-law, which was established at a 
time when no European mechanism for the control of concentrations existed. 
19 It considers, in essence, that, after the entry into force of Regulation No 4064/89, 
Article 102 TFEU continued to apply to abusive conduct that may be separated 
from the concentration itself, but its application to structural concentrations, as 
provided for in Regulation No 139/2004, became devoid of purpose, even though 
the regulation does not expressly exclude such application. 
20 It also submits that Article 3 of Regulation No 139/2004, like Article 3 of 
Regulation No 4064/89 before it, defines concentrations by reference to 
substantive criteria, and not by reference to the thresholds defined in Article 1 of 
the regulation. From that, it infers that Regulation No 139/2004 applies 
exclusively to concentrations, as defined in Article 3 (set out above), and renders 
the application of Article 102 TFEU to concentrations devoid of purpose, where 
there is no distinct conduct by the undertaking in question following that 
concentration. 
21 It applies the same analysis to the question of the application of national law, 
represented by Article L.420-2 of the Code de commerce, taking the view that 
procedures concerning anti-competitive practices and the procedure concerning 
the control of concentrations are different and irreconcilable. 
B. Towercast 
22 In its application, Towercast disputes that interpretation of the legislation. Its 
principal argument rests on the objective which has been pursued since the 
adoption of the EEC Treaty of creating a regime which ensures competition in the 
common market is not distorted, and it refers to the principles set out in 
Continental Can (referred to above), which it regards as still relevant. It points out 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-449/21 
 
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that those principles have been referred to in several later cases (judgments of 
21 September 2005, EDP v Commission, T-87/05, EU:T:2005:333, paragraphs 46 
and 47, and of 14 December 2005, General Electric v Commission, T-210/01, 
EU:T:2005:456, paragraph 86) and it has produced a legal opinion supporting its 
assertion that, in the majority, the authorities and courts of the Member States 
continue to apply the Continental Can line of case-law.  
23 It also relies on the direct effect of Article 102 TFEU and claims that, in so far as 
concentrations below the thresholds are concerned, an ex-post review of 
compatibility with that article is possible. 
24 It states that, although Regulations Nos 139/2004 and 1/2003 cannot both apply in 
the same case, Regulation No 139/2004, on the other hand, applies exclusively 
only to concentrations which fall within its scope, which is to say concentrations 
having a Community dimension or those which have been referred to the 
Commission by a national competition authority or by the parties. 
25 In reply to the other parties, Towercast argues that if control were limited to 
conduct that may be separated and is abusive, it would not be possible to capture 
concentrations which significantly hinder competition by substantially 
strengthening the dominant position of the purchaser. It adds that the referral 
system provided for in Article 22 of Regulation No 139/2004 is not sufficient to 
ensure adequate control, because it is optional and is triggered at the sole 
discretion of the Member States. It also points out that, until recently, the 
Commission was unwilling to examine concentrations below the national 
thresholds for control. 
C. The other parties to the procedure 
26 The Minister for Economic Affairs agrees with the competition authority’s 
analysis. The companies of the TDF group, which have intervened, also agree 
with it. They also point out that, in its judgment of 7 September 2017, Austria 
Asphalt (C-248/16, EU:C:2017:643, paragraphs 30 to 33), the Court of Justice 
held that Articles 101 and 102 TFUE did not apply to concentrations within the 
meaning of Article 3 of Regulation No 139/2004, whether or not the thresholds 
were exceeded. Lastly, they emphasise the legal uncertainty that would be caused 
by applying Article 102 TFEU to concentrations such as that at issue in the 
present situation, in that it would mean that they could be challenged years after 
they had been completed, not to mention the risk of divergence resulting from an 
explosion of merger control litigation. 
 V. Referring court’s analysis  
27 In Continental Can (judgment of 21 February 1973, Europemballage and 
Continental Can v Commission, 6/72, EU:C:1973:22), the Court of Justice held 
that, ‘in the absence of explicit provisions, one cannot assume that the Treaty, 
TOWERCAST 
 
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which prohibits in Article 85 certain decisions of ordinary associations of 
undertakings restricting competition without eliminating it, permits in Article 86 
that undertakings, after merging into an organic unity, should reach such a 
dominant position that any serious chance of competition is practically rendered 
impossible.’ From that, the Court inferred that ‘abuse may therefore occur if an 
undertaking in a dominant position strengthens such position in such a way that 
the degree of dominance reached substantially fetters competition, i.e., that only 
undertakings remain in the market whose behaviour depends on the dominant 
one.’ 
28 That case-law is usually interpreted as an acknowledgement that the strengthening 
of a dominant position, by means of acquisitions, to the point where any serious 
chance of competition is precluded cannot, given the objectives pursued, be 
excluded from the scope of Article 102 TFEU (formerly Article 86 of the EEC 
Treaty), which is a provision of primary law which has direct effect. 
29 However, that judgment was delivered at a time when there was no mechanism 
under EU law for the control of concentrations. Since that time, the European 
Union has adopted rules that apply to concentrations which may significantly 
impede effective competition in the common market or in a substantial part of it.   
30 It should be noted that, in order to prevent a double assessment, ex ante and ex 
post, of mergers falling within their scope, successive regulations on the control of 
concentrations have provided that concentrations having a Community dimension, 
which must be examined ex ante, cannot then become subject also to the 
provisions of the regulations (Regulation No 17 and subsequently Regulation 
No 1/2003) governing the application of the provisions prohibiting anti-
competitive practices (Articles 85 and 86 TEC and subsequently Articles 101 and 
102 TFEU). 
31 Article 3 of Regulation No 139/2004, moreover, gives a substantive definition of 
the concept of concentration, without referring to the thresholds mentioned in 
Article 1 by reference to which a concentration is defined as one that has a 
Community dimension. The exclusion laid down in Article 21 would therefore 
appear to apply to any operation which satisfies the definition in Article 3, 
whether or not the mandatory control thresholds are exceeded. 
32 Nevertheless, recital 7 of Regulation No 139/2004 states that ‘Articles 81 and 82, 
while applicable, according to the case-law of the Court of Justice, to certain 
concentrations, are not sufficient to control all operations which may prove to be 
incompatible with the system of undistorted competition envisaged in the Treaty’, 
with the result that the referring court questions whether the interpretation 
established in the Continental Can line of case-law continues to apply to 
operations such as that at issue in the present situation, in relation to which it is 
common ground that the definition in Article 3 of the regulation is satisfied and 
the effects of which on competition have not been subject to any ex-ante 
assessment. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-449/21 
 
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33 In its recent case-law, the Court of Justice does not appear to have expressed a 
position on whether the exclusion laid down in Article 21 of Regulation 
No 139/2004 applies equally to concentrations which have not been the subject of 
any ex-ante assessment. 
34 In its judgment of 7 September 2017 in Case C-248/16, Austria Asphalt, the Court 
of Justice pointed out the following: 
‘31. [Regulation No 139/2004] … forms part of a legislative whole intended to 
implement Articles 101 and 102 TFEU and to establish a system of control 
ensuring that competition is not distorted in the internal market of the European 
Union. 
32. As follows from Article 21(1) of Regulation No 139/2004, that regulation 
alone is to apply to concentrations as defined in Article 3 of the regulation, to 
which Regulation No 1/2003 is not, in principle, applicable. [Italics added by the 
referring court.] 
33. By contrast, Regulation No 1/2003 continues to apply to the actions of 
undertakings which, without constituting a concentration within the meaning of 
Regulation No 139/2004, are nevertheless capable of leading to coordination 
between undertakings in breach of Article 101 TFEU and which, for that reason, 
are subject to the control of the Commission or of the national competition 
authorities.’ 
35 However, it does not appear that the Court has given further detail of the possible 
exceptions to the principle expressed in paragraph 32 of the judgment; nor has it 
ruled on whether the interpretation given in Continental Can is still capable of 
applying, in particular, to concentrations below the thresholds for mandatory 
control, which have not been analysed in the context of mandatory ex-ante control 
or as a result of a referral to the Commission under Article 22 of Regulation 
No 139/2004. 
36 Having regard to the direct effect of Article 102 TFEU and to the scope which 
might be attributed to the provisions governing concentrations (Article 21(1) of 
Regulation No 139/2004), the referring court has doubts regarding the proper 
interpretation of those two provisions, and as to whether it is indeed impossible, in 
principle, to apply independently the rules on competition which stem from 
primary law mentioned above to a concentration which, such as that in the present 
situation: 
‒ is capable of satisfying the definition in Article 3 of Regulation 
No 139/2004; 
‒ has not been the subject of any prior assessment, either on the basis of EU 
law or on the basis of national law applicable to concentrations; and 
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‒ which, accordingly, does not give rise to the risk of Regulation No 139/2004 
and Regulation No 1/2003 being applied cumulatively, or of any contradictory 
outcome arising from a double, ex-ante and ex-post, analysis. 
37 This interpretative difficulty is compounded by the referring court’s examination 
of the national rulings on which the parties rely, from which it appears that EU 
law has been applied in different ways. 
VI. Reasons for the request for a preliminary ruling 
38 Since it does not appear that the Court of Justice has yet decided the legal point at 
issue in the present case, it therefore appears necessary, in light of the divergent 
interpretations put forward and in order to ensure the uniform interpretation and 
application of that legislation within the European Union, to refer a question to the 
Court of Justice for a preliminary ruling. 
VII. The question referred for a preliminary ruling 
39 The Cour d’appel de Paris refers to the Court of Justice of the European Union the 
following question for a preliminary ruling: 
‘Is Article 21(1) of Council Regulation (EC) No 139/2004 of 20 January 2004 on 
the control of concentrations between undertakings to be interpreted as precluding 
a national competition authority from regarding a concentration which has no 
Community dimension within the meaning of Article 1 of that regulation, is below 
the thresholds for mandatory ex ante assessment laid down in national law, and 
has not been referred to the European Commission under Article 22 of Regulation 
No 139/2004, as constituting an abuse of a dominant position prohibited by 
Article 102 TFEU, in the light of the structure of competition on a  market which 
is national in scope?’