Judgment;Abstract — ECLI:EU:T:2025:655
Date: 2025-07-02
Language of the case: French
Court formation: Sixth Chamber, Extended Composition
Procedure: Action for annulment - unfounded
Origin: Luxembourg

summary of the reasons why the ACL considered that the concentration at issue affected trade between Member States and threatened to significantly affect competition within Luxembourg territory and, consequently, satisfied the conditions for the application of the first subparagraph of Article 22(1) of Regulation No 139/2004. 108 That letter consisted of information about the referral request sent without delay, which satisfies, in terms of both its form and its content, the requirements of the first subparagraph of Article 22(2) of Regulation No 139/2004, as set out in paragraphs 103 to 106 above. 109 Thus, as the Commission states, it is irrelevant that the referral request, the transmission of which is not necessary in order to satisfy those requirements (see paragraph 105 above), was not sent to Brasserie Nationale until 26 February 2024. It is also unnecessary to examine whether the videoconference of 12 February 2024 (see paragraph 14 above), in conjunction with the communications of 8 and 9 February 2024 (see paragraph 13 above) satisfy those requirements. 110 It is true that the information letter was drafted in English, which constitutes an infringement of Article 3 of Regulation No 1 (see paragraphs 39 to 42 above). However, according to the case-law cited in paragraphs 43 and 44 above, it is only if the use of English, in the information letter, has had harmful consequences for the applicants that the validity of the sending of that letter and, therefore, that of the administrative procedure, can be called into question. As is apparent from paragraphs 45 to 47 above, the applicants have not demonstrated that that use of English was detrimental to them in the administrative procedure. 111 The third plea must, therefore, be rejected. The fourth plea, alleging late communication of the contested decision 112 The applicants submit that the contested decision communicated to Brasserie Nationale on 12 April 2024 was out of time. 113 First, that does not satisfy the intention, laid down Article 22 of Regulation No 139/2004, that referrals be dealt with expeditiously, according to which a communication must be useful in order to enable the undertakings concerned to take a position and to act. Secondly, the fact that the decision was communicated almost one month after the last possible date for adopting the contested decision infringes that provision, in particular paragraph 3 thereof, which lays down time limits of 15 and 10 working days respectively. According to the applicants, the Commission cannot, by the late communication of the contested decision, extend those periods by a further 20 working days. 114 The Commission disputes those arguments. 115 In the first place, it should be noted that the second subparagraph of Article 22(3) of Regulation No 139/2004 provides that ‘the Commission shall inform all Member States and the undertakings concerned of its decision [on the referral request]’. According to that provision, ‘it may request the submission of a notification pursuant to Article 4 [of that regulation]’. 116 In the light of that provision, the Commission was, as it correctly contends, required only to inform the parties to the concentration at issue of the adoption of the contested decision. According to paragraph 79 of the referral notice, by which the Commission imposes a limit on the exercise of its discretion (see judgment of 16 February 2017, H&R ChemPharm v Commission, C‑95/15 P, not published, EU:C:2017:125, paragraph 57), that information ‘will be provided by means of a letter addressed to the undertakings concerned’. 117 In the present case, the Commission informed the applicants of the contested decision by letter of 14 March 2024, that is to say, the very day on which it was adopted (see also paragraph 19 above). Given that the Commission informed the applicants immediately, it complied with its obligation under the second subparagraph of Article 22(3) of Regulation No 139/2004. 118 In the second place, it should be noted that the contested decision is addressed to the ACL and that the applicants are not the addressees of that decision. 119 This is because the referral procedure under Article 22 of Regulation No 139/2004 is a procedure between the Member States and the Commission. Unlike the referral mechanisms provided for in Article 4(4) and (5) of that regulation, it is not the undertakings concerned but the Member States which, by sending a referral request under Article 22(1) of that regulation, trigger that procedure which ends, if that request is accepted, with a decision under paragraph 3 of that article, resulting in the transfer of competence for the examination of the concentration which is the subject of that request to the Commission. 120 In that regard, it must be stated that the notion of a request by a ‘Member State’ within the meaning of Article 22(1) of Regulation No 139/2004 is not limited to requests from a government or ministry; it also encompasses requests from national competition authorities (see, to that effect, judgment of 15 December 1999, Kesko v Commission, T‑22/97, EU:T:1999:327, paragraph 86). 121 In accordance with the third subparagraph of Article 297(2) TFEU, decisions which specify to whom they are addressed are to be notified to those to whom they are addressed and are to take effect upon such notification. 122 Therefore, in the light of the fact that the contested decision was addressed exclusively to the ACL and not to the parties to the concentration at issue, the Commission was not obliged to notify those parties of the contested decision. 123 Accordingly, since the applicants were immediately informed of the adoption of the contested decision and were not the addressees of that decision, they cannot claim that the Commission was required to communicate that decision to them before 12 April 2024. 124 The fourth plea must, therefore, be rejected. The fifth plea, alleging infringement of the rights of the defence and of the principles of equality of arms, procedural fairness and legitimate expectations 125 The applicants submit that the matters relied on in the context of the first to fourth pleas also constitute an infringement of the rights of the defence and of the principles of equality of arms, procedural fairness and legitimate expectations. In particular, they submit, referring to the Opinion of Advocate General Emiliou in Joined Cases Illumina and Grail v Commission (C‑611/22 P and C‑625/22 P, EU:C:2024:264, point 210), that, since 10 January 2024, the ACL could and should have heard them again, in particular after having stated at the meeting held that day that it was available for future exchanges. Furthermore, between 10 and 31 January 2024, the ACL could have prevented the implementation of the concentration at issue or warned Brasserie Nationale. 126 The Commission disputes those arguments. 127 As a preliminary point, it should be noted that the complaints, by which the applicants criticise the ACL for not having contacted and heard them again and for not having prevented the implementation of the concentration at issue before the referral request was made, are directed against the conduct of the ACL in making that request and not against the conduct of the Commission. 128 In accordance with Article 263 TFEU, the EU judicature does not have jurisdiction to rule on the lawfulness of a measure adopted by a national authority (judgments of 3 December 1992, Oleificio Borelli v Commission, C‑97/91, EU:C:1992:491, paragraph 9, and of 15 December 1999, Kesko v Commission, T‑22/97, EU:T:1999:327, paragraph 83). 129 It must also be borne in mind that, where the Commission receives a referral request under Article 22(1) of Regulation No 139/2004, it is required only to verify whether that request is prima facie a referral request within the meaning of that provision (see, to that effect, judgment of 15 December 1999, Kesko v Commission, T‑22/97, EU:T:1999:327, paragraph 84). The Commission is, therefore, bound by a referral request from a Member State and it is not for the Commission to verify whether that request was made in accordance with the applicable procedural rights, the infringement of which must be challenged before the national courts. 130 In those circumstances, any unlawful acts committed by the ACL in the procedure leading to the submission of the referral request cannot affect the legality of the contested decision. Consequently, the applicants’ line of argument is ineffective in so far as it concerns such unlawful acts. 131 In addition, it should be noted, as the Commission did, that Article 22 of Regulation No 139/2004 did not require the ACL either to hear or to inform the applicants before the referral request was made and that, furthermore, no such obligation is apparent from the Opinion of Advocate General Emiliou in Joined Cases Illumina and Grail v Commission (C‑611/22 P and C‑625/22 P, EU:C:2024:264, point 210), as relied on by the applicants. 132 By contrast, since the undertakings concerned must be informed, in accordance with the first subparagraph of Article 22(2) of Regulation No 139/2004, of a referral request under paragraph 1 of that article, they have the right to be heard during the administrative procedure leading to the adoption of a decision on that request under the first subparagraph of Article 22(3) of that regulation. 133 In the present case, it is common ground that Brasserie Nationale was informed of the referral request on 8 February 2024 (see paragraph 13 above) and that it submitted its observations on 22 and 29 February 2024 (see paragraphs 16 and 17 above). Brasserie Nationale was, therefore, informed before the adoption of the contested decision, which took place on 14 March 2024, and had several opportunities to make known its views during the administrative procedure which led to the adoption of that decision. 134 As regards the complaint that the ACL could have prevented the implementation of the concentration at issue, it must be observed that that complaint is ineffective (see paragraphs 127 to 129 above). If, however, that complaint were to be understood as meaning that the applicants claim that the ACL should have made the referral request earlier in order to trigger, in accordance with Article 22(4) of Regulation No 139/2004, the standstill obligation laid down in Article 7 of that regulation, it is sufficient to note that the period of 15 working days laid down in the second subparagraph of Article 22(1) of Regulation No 139/2004 did not begin to run until 17 January 2024 at the earliest, and that the ACL was, therefore, entitled to make that request on 7 February 2024 (see paragraph 86 above). 135 As regards the principle of legitimate expectations, it is apparent from paragraph 96 above that the applicants have not shown that the Commission gave them precise assurances leading them to entertain justified expectations. The ACL’s statements cannot, in any event, affect the legality of the contested decision (see paragraph 129 above). 136 As regards the other complaints, the applicants do not explain how the arguments put forward in the context of the first to fourth pleas are relevant to the fifth plea. In view of those vague and unsubstantiated assertions, those complaints must, therefore, be rejected. 137 Accordingly, the applicants have not established an infringement of the rights of the defence or of the principles of equality of arms, procedural fairness or legitimate expectations. 138 Consequently, the fifth plea must be rejected. The sixth plea, alleging that there is no effect on trade between Member States 139 The applicants complain that the Commission failed to examine whether trade between Member States is likely to be affected by the concentration at issue. The Commission based its decision purely on the competitive conditions prior to the concentration, and not on the potentially harmful effects of that concentration. According to the case-law, the analysis of those effects should be plausible and based on the economic outcome attributable to the concentration which is most likely to ensue. An analysis of that causality was also required by the Commission’s Guidance on the application of the referral mechanism set out in Article 22 of [Regulation No 139/2004] to certain categories of cases (OJ 2021 C 113, p. 1; ‘the Article 22 guidance’). 140 In particular, the applicants complain, with particular reference to paragraphs 58 to 61 of the contested decision, that a concentration cannot be required to bring about an improvement in unsatisfactory competitive conditions. Paragraph 60 of the contested decision is irrelevant since it merely reports current statistics without drawing any conclusions therefrom. As regards paragraph 62 of the contested decision, the applicants submit that, first, the share of imports indicates only that the geographical market to be considered is the ‘Greater Region’ and, secondly, the Commission did not give reasons for its assertion that the new entity resulting from the concentration at issue had too high a market share. They complain that, in the contested decision, the Commission failed to distinguish the past from the future. Paragraphs 64 to 66 of the contested decision reiterate the high share of imports, but no conclusions are drawn. The assertion in paragraph 67 of the contested decision that international producers rely heavily on the network and local assets of wholesale distributors to reach each point of sale of the CHR/on-trade channel in Luxembourg is not correct and has been contradicted. The Commission did not respond to Brasserie Nationale’s argument that there was no obstacle to the entry of international producers into the local HoReCa market in Luxembourg. According to the applicants, that is confirmed by the fact that, since the implementation of that concentration, AB InBev has been able to terminate the commercial agreements between it and Boissons Heintz and gain effective access to that market without difficulty. The Commission, which has been dealing with beverage and beer distribution for a long time, is under an obligation to respond to the arguments put forward by the undertakings concerned. Lastly, the applicants submit that paragraphs 68 and 69 of the contested decision refer only to the existing competitive conditions. 141 In response to the Court’s question of 6 September 2024, the applicants submit that the judgment of 3 September 2024, Illumina and Grail v Commission (C‑611/22 P and C‑625/22 P, EU:C:2024:677), shows that concentrations must have a European dimension in order to fall within the scope of Article 22 of Regulation No 139/2004. 142 The Commission and AB InBev dispute the applicants’ arguments. 143 As a preliminary point, it should be noted that, in order for one or more Member States to be able to refer a concentration to the Commission and for the Commission to be able to agree to examine it, two substantive conditions must be satisfied. In accordance with Article 22(1) and (3) of Regulation No 139/2004, the concentration concerned must, first, ‘[affect] trade between Member States’ and, second, ‘[threaten] to significantly affect competition within the territory of the Member State or States making [the referral] request’. 144 By contrast, contrary to the applicants’ view, in order to fall within the scope of that provision, a concentration must not have a European dimension. In accordance with the first subparagraph of Article 22(1) of Regulation No 139/2004, a referral request may be made in respect of ‘any concentration as defined in Article 3 [of that regulation] that does not have a [European] dimension within the meaning of Article 1 [of that regulation]’. 145 As regards the first substantive condition referred to in paragraph 143 above, the application of which by the Commission in the contested decision is the subject of the present plea, that condition must be given an interpretation which is consistent with that given to it in the context of Articles 101 and 102 TFEU (judgment of 15 December 1999, Kesko v Commission, T‑22/97, EU:T:1999:327, paragraph 106). 146 Thus, as stated in paragraph 43 of the referral notice and as also stated in paragraph 14 of the Article 22 guidance, withdrawn by the Commission Communication of 2 December 2024 (OJ C, C/2024/7190, p. 1) following the judgment of 3 September 2024, Illumina and Grail v Commission (C‑611/22 P and C‑625/22 P, EU:C:2024:677), a concentration fulfils the requirement that it must affect trade between Member States if it is liable to have some discernible influence on the pattern of trade between Member States. 147 According to the case-law, in view of the nature of the control of concentrations established by Regulation No 139/2004, the Commission is required to carry out a prospective analysis of the effects of the concentration concerned and hence to consider, in the context of Article 22 of that regulation, its effect on trade between Member States in the future (see, to that effect, judgment of 15 December 1999, Kesko v Commission, T‑22/97, EU:T:1999:327, paragraph 107). 148 More specifically, in order for a concentration to be capable of affecting trade between Member States, it must be possible to foresee with a sufficient degree of probability and on the basis of objective factors of law or fact that that concentration may have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States, such as might prejudice the realisation of the aim of a single market in all the Member States (see, to that effect, judgment of 15 December 1999, Kesko v Commission, T‑22/97, EU:T:1999:327, paragraph 103 and the case-law cited). 149 According to the case-law, trade between Member States is affected, in particular, by a concentration which hampers the operations on the national market of, or entry into that market by, producers or sellers from other Member States, or which prevents competitors from other Member States from establishing themselves on the market in question. Where the holder of a dominant position obstructs access to the market by competitors, 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 internal market (see, to that effect, judgment of 15 December 1999, Kesko v Commission, T‑22/97, EU:T:1999:327, paragraphs 104 and 105 and the case-law cited). 150 In the exercise of that ex ante review of concentrations, the Commission has a margin of discretion with regard to economic matters for the purpose of the application of the substantive rules of Regulation No 139/2004, since it carries out prospective economic analyses seeking to determine the likelihood of certain developments in the relevant market within a foreseeable time frame (see, to that effect, judgment of 13 July 2023, Commission v CK Telecoms UK Investments, C‑376/20 P, EU:C:2023:561, paragraph 82 and the case-law cited). 151 That prospective analysis called for in relation to the review of concentrations falls within the margin of discretion with regard to economic matters which is available to the Commission for the purposes of applying the substantive rules of Regulation No 139/2004, which justifies judicial review being confined to ascertaining that the facts have been accurately stated and that there has been no manifest error of assessment (see, to that effect, judgment of 13 July 2023, Commission v CK Telecoms UK Investments, C‑376/20 P, EU:C:2023:561, paragraph 84 and the case-law cited). In particular, it is not for the Court to substitute its own economic assessment for that of the Commission (see judgment of 23 May 2019, KPN v Commission, T‑370/17, EU:T:2019:354, paragraph 107 and the case-law cited). 152 As regards the analysis of the substantive conditions laid down in Article 22(3) of Regulation No 139/2004, it is noteworthy that the expression ‘where it considers’ used in that provision, which did not yet appear in Article 22(3) of Regulation No 4064/89, also indicates that the Commission has a margin of discretion when carrying out that analysis, which it must do within a time limit of ten working days on the basis of the information available. First, Article 22(3) of Regulation No 139/2004 provides that, if the Commission does not take a decision within that period, it is to be deemed to have adopted a decision accepting the referral request. Secondly, since the Commission is not required actively to seek information on the concentration concerned (see paragraph 72 above), it must base its analysis primarily on the information available, namely the information transmitted in the referral request which is based on a preliminary assessment carried out by the requesting Member State (see paragraph 69 above) and, where applicable, in requests to join submitted by other Member States under the second subparagraph of Article 22(2) of Regulation No 139/2004, as well as in any observations submitted by the undertakings concerned. 153 It is in the light of those considerations that it is necessary to examine the arguments raised by the applicants and to ascertain whether they show that the Commission made a manifest error of assessment in its analysis of the condition relating to the effect on trade between Member States, as provided for in Article 22(1) and (3) of Regulation No 139/2004. 154 In the first place, as regards the arguments based on the alleged absence of a prospective analysis of the future effects of the concentration at issue on trade between Member States, it should be noted that the Commission, after setting out, in paragraphs 57 to 62 of the contested decision, the findings of the ACL and the observations of Brasserie Nationale concerning the condition relating to the effect on trade between Member States, as laid down in Article 22(1) and (3) of Regulation No 139/2004, carried out its own examination of that condition in paragraphs 63 to 69 of the contested decision. 155 First of all, the Commission examined the structure and characteristics of the relevant markets. First, it considered, in paragraph 64 of the contested decision, taking into account the information provided by the ACL, that imports from other Member States represented a significant proportion of the wholesale distribution of beverages sold in Luxembourg, in particular through the CHR/on-trade channel and for beer. Secondly, it considered, in paragraphs 65 and 66 of the contested decision, that the importance of imports through that channel, at least for beer, was also apparent from the fact that the parties to the concentration at issue distributed international and European brands of beer in Luxembourg. Next, the Commission analysed the market power of those parties. It noted, in paragraph 67 of the contested decision, that the combined market share of those parties on the market for the wholesale distribution of beverages through that channel was approximately 80% and, specifically as regards the wholesale distribution of beer through that channel, exceeded 70%. It added, still in paragraph 67 of the contested decision, that Brasserie Nationale was vertically integrated upstream in the production and supply of beer, holding a market share of approximately 40 to 50%. The Commission concluded, again in paragraph 67 of the contested decision, that the resulting market power on the vertically related market could give rise to foreclosure concerns, in particular as regards the access of beverage producers which were established outside Luxembourg and had no distribution capacity in that Member State, and which were dependent on the network and local assets of the wholesale distributors. Lastly, the Commission concluded, in paragraphs 63 and 69 of the contested decision, that the concentration at issue was liable to affect trade between Member States since it would prevent access to the Luxembourg market by beverage producers, in particular beer producers, established in other Member States without a CHR/on-trade distribution network in Luxembourg. 156 It follows that the Commission carried out a prospective analysis of the potential future effects of the concentration at issue on trade between Member States, in accordance with the case-law cited in paragraphs 147 and 148 above. Those effects are highlighted by the expression ‘could raise’ and the word ‘liable’, as used in paragraphs 67 and 69 of the contested decision. As stated in those paragraphs, they relate to foreclosure concerns, in particular as regards access to the Luxembourg market, characterised by the importance of imports, by beverage producers from other Member States with no distribution capacity through the CHR/on-trade channel in Luxembourg, and arise from the significant combined market power of the parties to the concentration at issue on the market for the wholesale distribution of beverages through that channel and their vertical integration in the production and supply of beer. 157 In the second place, it is necessary to examine the arguments by which the applicants seek to call into question the validity of the Commission’s analysis of the effect on trade between Member States, as set out in paragraph 155 above. 158 First, it should be noted that, contrary to what the applicants claim, the Commission did not require, in paragraphs 58 to 61 of the contested decision, that the concentration at issue bring about an improvement in the competitive conditions that existed prior to the concentration, but merely set out the ACL’s findings regarding the structure and characteristics of the relevant markets. 159 Secondly, although the applicants complain that the Commission did not draw any conclusions from the high share of imports, referred to in paragraphs 64 to 66 of the contested decision, it should be noted that that fact, which concerns the structure and characteristics of the market for the wholesale distribution of beverages through the CHR/on-trade channel in Luxembourg, was taken into account implicitly, but necessarily, along with the combined market power and vertical integration of the parties to the concentration at issue on that market, when determining, in paragraph 67 of the contested decision, that there would be foreclosure concerns as regards access to that market by beverage producers from other Member States with no distribution capacity through that channel. Similarly, that fact was taken into account in the Commission’s overall assessment, in paragraph 69 of the contested decision, as is confirmed by the first part of the sentence in that paragraph, which is worded ‘in view of the foregoing’. 160 Thirdly, contrary to the applicants’ view, the Commission did distinguish the competitive conditions prior to the concentration from future competitive conditions in so far as the expression ‘could raise’ and the term ‘liable’, as used in paragraphs 67 and 69 of the contested decision, describe the potential future effects which, according to the Commission, result from the concentration at issue (see also paragraph 156 above). 161 Fourthly, the applicants’ claim that the finding, in paragraph 67 of the contested decision, that international producers rely heavily on the network and local assets of the wholesale distributors to reach each point of sale of the CHR/on-trade channel in Luxembourg is incorrect and has been contradicted is a mere unsubstantiated assertion. As regards the letter of 22 February 2024 from Brasserie Nationale to the Commission, to which the applicants refer, that letter merely disputes, in point III.1, ‘any potential, however indirect, to foreclose the market [in terms of] Munhowen or [the Brasserie Nationale group]’, without, however, stating the specific reasons why Brasserie Nationale considers that there is no risk of foreclosure of the market. The applicants cannot, therefore, criticise the Commission for not having responded to all of Brasserie Nationale’s arguments. In any event, the Commission was not required to respond to each argument raised by Brasserie Nationale in that letter, since an overall answer may suffice in order to comply with its obligation to state reasons under Article 296 TFEU (see, to that effect, judgment of 9 November 2022, Feralpi v Commission, T‑657/19, EU:T:2022:691, paragraph 533 (not published) and the case-law cited). 162 Fifthly, the argument that AB InBev was able to replace its business relationship with Boissons Heintz after the implementation of the concentration at issue says nothing about the difficulties which that concentration may cause to other producers wishing to enter the market for the wholesale distribution of beverages through the CHR/on-trade channel in Luxembourg, in particular for beer. 163 Sixthly, in so far as the Commission stated, in paragraph 67 of the contested decision, that the combined market share of the parties to the concentration at issue in Luxembourg was approximately 80% of the market for the wholesale distribution of beverages through the CHR/on-trade channel and exceeded 70% in the wholesale distribution of beer through that same channel, the applicants cannot criticise it for failing to state reasons for its conclusions as to the market power of the entity resulting from that concentration. Furthermore, it should be noted, as the Commission did, that the latter did not assert that the market shares held by that entity would be ‘too high’. 164 Seventhly, as regards the argument that the high share of imports indicates that the geographical market to be considered is the ‘Greater Region’, namely Luxembourg and the neighbouring German, Belgian and French regions, it is stated in paragraph 42 of the Commission Notice on the definition of the relevant market for the purposes of Union competition law of 22 February 2024 (OJ C, C/2024/1645, p. 1), as relied on by the Commission, that ‘the mere existence of imports or the possibility of switching to imports in a given geographic area does not necessarily lead to a widening of the geographic market to include the area from which the goods were or could be exported. Customers located in the area from which the goods were or could be exported may face different conditions of competition compared to customers located in the area where imports are delivered. In those circumstances, if geographic markets were defined widely to include the areas of export and delivery of imported goods, this could erroneously include in the relevant market areas where customers are likely to be affected differently by the relevant conduct or concentration’. 165 The Commission established the existence of different competitive conditions in so far as it found, in paragraph 68 of the contested decision, that the structure of supply in Luxembourg differed from that of neighbouring countries and that demand had different characteristics in Luxembourg as compared with neighbouring countries. The applicants cannot call that finding into question merely by making the unsubstantiated assertion that it does not correspond to reality. 166 In so far as the applicants’ argument should be understood as seeking to dispute a possible effect on trade between Member States in the event that the relevant geographic market was national in scope, as has been found in the present case, it is sufficient to recall that, in accordance with the case-law cited in paragraph 149 above, trade between Member States may be affected even by a concentration which hampers the operations on the national market, or entry into that market, by, producers or sellers from other Member States, or which prevents competitors from other Member States from establishing themselves on that market. 167 Furthermore, Brasserie Nationale itself concedes, in point III.2. of its letter to the Commission of 22 February 2024, that ‘trade between Member States may be affected [by the concentration at issue]’ because the relevant geographic market is that of the Greater Region. As is apparent from point III.1 of that letter, Brasserie Nationale therefore considers only that the effect on trade between Member States arises for reasons other than those stated by the ACL in its referral request. 168 It follows that the arguments put forward by the applicants are not capable of demonstrating the existence of a manifest error of assessment in the Commission’s analysis of the effect on trade between Member States, as set out in paragraph 155 above. 169 In particular, the applicants have not succeeded in calling into question the findings that, first, imports represented a significant proportion of the wholesale distribution of beverages sold in Luxembourg, in particular through the CHR/on-trade channel and more specifically as regards beer (paragraphs 64 to 66 of the contested decision), and, second, the combined market share in Luxembourg of the parties to the concentration at issue on the market for the wholesale distribution of beverages through that channel was approximately 80% and, specifically as regards the wholesale distribution of beer through that channel, exceeded 70%. Moreover, the applicants do not dispute that Brasserie Nationale was vertically integrated upstream in the production and supply of beer, where it had a market share of approximately 40 to 50% (paragraph 67 of the contested decision). 170 In view of those circumstances, in particular the significant combined market power of the parties to the concentration at issue and their vertical integration in the production and supply of beer, the Commission did not make a manifest error of assessment in finding, in paragraph 67 of the contested decision, that the concentration at issue could make access to the market for the wholesale distribution of beverages through the CHR/on-trade channel in Luxembourg (in particular for beer) more difficult for producers from other Member States without a distribution network through that channel in Luxembourg. Consequently, in the light of the case-law referred to in paragraph 149 above, the Commission also did not make a manifest error of assessment in concluding, in paragraph 69 of the contested decision, that that concentration was liable to affect trade between Member States. 171 The sixth plea must, therefore, be rejected. The seventh plea, alleging that there is no threat of a significant effect on competition in the territory of Luxembourg 172 The applicants submit that the Commission’s analysis of the threat of a significant effect on competition in Luxembourg is implausible. 173 First, as regards the horizontal effects concerning the market for the wholesale distribution of beverages through the CHR/on-trade channel in Luxembourg, the applicants, acknowledging the apparent significant market share of the new entity resulting from the concentration at issue, submit that the relevant question is whether that market share is likely to give rise to non-coordinated effects. As there were no international wholesale distributors active in Luxembourg, the concentration at issue would not change that situation since it would not create any new barriers to market entry. Although, according to the applicants, it is true that there are exclusive rights between the HoReCa establishments and the breweries, AB InBev has had no difficulty circumventing that new entity since the concentration was implemented. The overlap in the brand portfolio of the parties to the concentration at issue is irrelevant since, in order to exist on the market, any other distributor must be able to distribute those same brands. As regards the absence of countervailing buyer power of HoReCa establishments, the applicants consider that the concentration at issue does not aggravate the existing situation. They maintain that the Commission has not established that the cost of 500 000 United States dollars (USD) (approximately EUR 435 248) for a warehouse constitutes a barrier to entry for a wholesale beverage distributor. It neither carried out a profitability analysis nor took account of the possibility of delivery from warehouses situated in Belgium or France. 174 Secondly, as regards the horizontal effects concerning the market for the distribution of beer through the CHR/on-trade channel in Luxembourg, Brasserie Nationale disputes the definition of that market, while taking the view that the Commission is a priori entitled to use that definition in its preliminary assessment. Following on from their previous criticisms, the applicants submit that, in the context of merger control, the relevant question is not whether the competitive conditions could be improved, but whether the concentration at issue adversely affects competition in Luxembourg. Merger control cannot therefore remedy the competitive conditions prevailing on the market prior to that concentration. 175 Thirdly, as regards the non-horizontal effects, the applicants dispute the Commission’s finding that the concentration at issue is likely to close off a significant outlet for producers and suppliers. The Commission failed to take account of the existing alternatives, the possibility for a new distributor to establish itself in Luxembourg and the ability of distributors in the Greater Region to deliver directly to Luxembourg from warehouses near the border. That is confirmed by the fact that AB InBev was able to find an alternative channel after the termination of its commercial agreements with Boissons Heintz. The applicants submit that it is AB InBev which holds market power and whose conduct may significantly influence competition, and not the hypothetical increase in production by Brasserie Nationale, which is an SME. In their view, it is implausible that the latter could increase its prices without regard to upstream competitors on the beer supply market, namely international groups such as AB InBev, Heineken and Carlsberg Group. In addition, the applicants claim that AB InBev cannot complain of difficulties in gaining access to distributors since, thanks to its right of pre-emption, it was able to acquire 100% of the shares in Boissons Heintz in which it had a 10% shareholding until 7 February 2024. 176 The Commission and AB InBev dispute the applicants’ arguments. 177 The present plea concerns the second substantive condition laid down in Article 22(1) and (3) of Regulation No 139/2004, according to which the concentration must ‘[threaten] to significantly affect competition within the territory of the Member State or States making the [referral] request’ (see paragraph 143 above). 178 In that regard, it should be noted that that substantive condition differs, in its wording, from the relevant criterion for declaring a concentration incompatible with the internal market, as provided for in Article 2(3) of Regulation No 139/2004. More specifically, unlike the latter provision, that substantive condition is not based on there being a significant obstacle to effective competition, but only on there being a ‘threat’ of a significant effect on competition. 179 That difference is explained by the fact that the sole purpose of a decision under Article 22 of Regulation No 139/2004 is to make a decision on the referral of a concentration to the Commission, on the basis of the information available and within a time limit of 10 working days (see also paragraph 152 above). It is, therefore, not comparable to a decision ruling, pursuant to Article 2(2) and (3) of Regulation No 139/2004, on the compatibility of a concentration with the internal market, nor does it prejudice such a decision. 180 Thus, as is apparent from paragraph 44 of the referral notice, a concentration satisfies the second substantive condition of Article 22(1) and (3) of Regulation No 139/2004 where a preliminary assessment indicates that there is real risk that that concentration may have a significant adverse impact on competition in the territory of the Member State or States making the referral request, and thus that it deserves close scrutiny. As is also mentioned in paragraph 44 of that notice, such preliminary indications may be in the nature of prima facie evidence of such a possible significant adverse impact, but would be without prejudice to the outcome of a full investigation. 181 In accordance with the case-law referred to in paragraphs 150 and 151 above, the Commission has a margin of discretion with regard to economic matters for the purposes of applying the substantive rules of Regulation No 139/2004, since it carries out prospective economic analyses seeking to determine the likelihood of certain developments in the relevant market within a foreseeable time frame. The review by the EU Courts is, therefore, confined to ascertaining that the facts have been accurately stated and that there has been no manifest error of assessment. It is not for the Court to substitute its own economic assessment for that of the Commission. 182 As stated in paragraph 152 above, the Commission has a margin of discretion when analysing the substantive conditions laid down in Article 22(3) of Regulation No 139/2004, since it must carry out that analysis within a time limit of 10 working days on the basis of the information available. 183 It is in the light of those considerations that it is necessary to examine the arguments by which the applicants attempt to call into question the Commission’s analysis concerning the condition relating to the threat of a significant effect on competition, and to ascertain whether they demonstrate the existence of a manifest error of assessment. Analysis of the horizontal effects 184 As a preliminary point, it is clear from paragraph 12 of the Guidelines on the assessment of horizontal mergers under the Council Regulation on the control of concentrations between undertakings (OJ 2004 C 31, p. 5; ‘the Guidelines on horizontal mergers’), which are binding on the Commission provided they do not depart from the rules in the Treaty and from Regulation No 139/2004 (see judgment of 7 June 2013, Spar Österreichische Warenhandels v Commission, T‑405/08, not published, EU:T:2013:306, paragraph 58 and the case-law cited), that in order to assess the foreseeable impact of a concentration on the relevant markets, the Commission analyses its possible anti-competitive effects, such as coordinated and non-coordinated effects, and the countervailing factors such as buyer power, the extent of entry barriers and possible efficiencies put forward by the parties. 185 In the first place, as regards the market for the wholesale distribution of beverages through the CHR/on-trade channel in Luxembourg, the Commission concluded, in paragraph 73 of the contested decision, that the concentration at issue threatened to give rise to non-coordinated effects resulting from horizontal overlaps on that market. 186 First, the Commission noted, in paragraph 74 of the contested decision, that the concentration at issue appeared to result in the parties to that concentration having a high combined market share of between 70 and 80%. Although the applicants concede that the apparent market share of the merged entity is significant, they submit that it is necessary to consider whether that market share is likely to give rise to non-coordinated effects. As is apparent from paragraphs 26 and 27 of the Guidelines on horizontal mergers, combined market shares are an important factor in establishing whether such effects are likely to result from a concentration. In addition, it is apparent from paragraph 17 of those guidelines that market shares of 50% or more may in themselves be evidence of the existence of a dominant market position. 187 Secondly, the applicants do not dispute the finding, in paragraph 75 of the contested decision, that their competitors, which held limited market shares of less than 5% each, did not appear to be in a position to exert competitive pressure on the entity resulting from the concentration at issue and would probably leave the market subsequently. Nor do the applicants dispute that, as the Commission noted in that paragraph, there were no international players active in Luxembourg. Those findings indicate that that entity has an appreciably larger market share than that of its closest competitor and that there is a risk that competitive forces will be eliminated. In accordance with paragraph 25 of the Guidelines on horizontal mergers, these are factors to be taken into account and cannot be called into question by the assertion that the absence of international players active in Luxembourg constitutes a situation which remains unchanged after the implementation of that concentration. 188 Thirdly, in so far as the Commission found, in paragraphs 76 and 77 of the contested decision, that the parties to the concentration at issue were close competitors with significant market power and whose brand portfolios overlap considerably, that is a factor to be taken into account, in accordance with paragraph 28 of the Guidelines on horizontal mergers. It is true that, as is also apparent from paragraph 28, it is less likely that a concentration will significantly impede effective competition when there is a high degree of substitutability between the products of the parties to the concentration and those supplied by rival producers. However, the applicants’ vague and unsubstantiated assertion that all distributors are capable of distributing large international beverage brands is not sufficient to demonstrate such a high degree of substitutability, or to call into question the overlap, as set out in paragraph 76 of the contested decision, between the portfolios of Boissons Heintz and Munhowen which relates to 31 brands, notably Luxembourg brands of beer and mineral water. 189 Fourthly, the Commission noted, in paragraph 78 of the contested decision, that the customers, consisting of approximately 2 700 bars, hotels and restaurants, did not appear to have sufficient countervailing buyer power to counter the market power of the entity resulting from the concentration at issue. The applicants cannot call that finding into question by maintaining that that situation is not new and will not be aggravated by that concentration. The Commission was required to consider, under paragraph 65 of the Guidelines on horizontal mergers, the extent to which that entity’s customers would be in a position to counter the increase in market power that that concentration would be likely to create; an increase which, moreover, is not disputed by the applicants (see paragraph 186 above). According to paragraph 65 of those guidelines, it is more likely that large and sophisticated customers will possess this kind of countervailing buyer power than smaller firms in a fragmented industry. Paragraph 67 of those guidelines states that a merger of two suppliers may reduce buyer power if it removes a credible alternative. That could be the case here, since it is apparent from the contested decision that that concentration combines the market shares of the two largest distributors on the relevant market (paragraphs 73 and 74 of the contested decision) which were previously close competitors with overlapping brand portfolios (paragraphs 76 and 77 of the contested decision). 190 Fifthly, the Commission considered, in paragraph 79 of the contested decision, that potential new entrants appeared to face significant barriers to entry to the wholesale distribution market in Luxembourg due to the need for significant investment, in particular as regards, first, warehouse storage space, which was very limited in Luxembourg and the construction of which could cost up to USD 500 000 (approximately EUR 435 248) per year for a capacity of approximately 17 000 hectolitres, and second, the necessary fleet of lorries. 191 In that regard, the Court notes that the applicants concede that the cost of USD 500 000 (approximately EUR 435 248) for warehouse storage space is conceivable. In so far as the applicants consider that the Commission should have examined whether that amount constituted a barrier in itself, it is sufficient to note that they do not dispute the need for other investments, including a fleet of lorries. Because of those necessary costs, distributors in Luxembourg appear to have advantages over their potential competitors. In accordance with paragraph 70 of the Guidelines on horizontal mergers, those advantages can constitute barriers to entry. 192 Admittedly, as the applicants claim, warehouses located in the Greater Region may potentially be used for market entry. However, as the Commission found in paragraph 79 of the contested decision, no new competitor has recently entered the market, which, according to paragraph 70 of those guidelines, may also demonstrate the existence of barriers to entry. 193 In any event, it must be borne in mind that, pursuant to paragraph 68 of those guidelines, in order for the entry of new competitors to be considered a sufficient competitive constraint on the parties to the concentration, it must be shown to be likely, timely and sufficient to deter or defeat any potential anti-competitive effects of the concentration. However, the applicants have not provided such evidence. On the contrary, they even admit that there are exclusive rights between HoReCa establishments and breweries, which is likely to make the entry of new competitors more difficult, as is apparent from paragraph 69 of those guidelines. That is not called into question by the fact that AB InBev was able to replace its business relationships, since that fact does not demonstrate either the entry of new competitors or the existence of a sufficient competitive constraint for the parties to the concentration at issue. 194 In the second place, as regards the market for the wholesale distribution of beer through the CHR/on-trade channel in Luxembourg, the Commission concluded, in paragraph 80 of the contested decision, that the concentration at issue threatened to give rise to non-coordinated effects resulting from horizontal overlaps on that market. 195 More specifically, it considered that the concentration at issue could lead to high combined market shares (paragraph 81 of the contested decision) and that the considerations relating to the wholesale distribution of all beverages through the CHR/on-trade channel in Luxembourg applied mutatis mutandis to the market in question, in particular the considerations relating to the limited number of competitors with only marginal market shares, to the fact that the parties to that concentration were close competitors, to the customers’ lack of countervailing buyer power and to the existence of high barriers to entry (paragraph 83 of the contested decision). 196 First, the applicants criticise the definition of the market for the distribution of beer through the CHR/on-trade channel. In that regard, the Commission stated, in paragraph 52 of the contested decision, that it could not rule out, at the preliminary stage of the procedure, that that market constituted a separate market, while observing that its analysis was without prejudice to the outcome of the in-depth investigation into the compatibility of the concentration at issue with the internal market which it would carry out after acceptance of the referral request. In so far as the applicants themselves admit that the Commission is a priori entitled to use that definition of the relevant market in a preliminary assessment and in view of the fact that they do not put forward any evidence to support an alternative definition of that market, their criticism cannot succeed. 197 Secondly, the applicants consider that the contested decision describes only the situation that existed before the concentration at issue and that it does not analyse whether the concentration adversely affects competition in Luxembourg. It is true that if one of the parties to that concentration was already in a dominant position on a relevant market before that concentration, that situation may escape the analysis of the competitive effects of the concentration. However, that does not apply when the dominant position on a relevant market results from or is strengthened by that concentration (see, in that regard, judgment of 23 May 2019, KPN v Commission, T‑370/17, EU:T:2019:354, paragraph 113 and the case-law cited). It is in particular the latter scenario which the Commission envisaged in the present case. The future and potential effects of that competition are highlighted by the expression ‘appears to lead to high combined market shares of the parties’, as used in paragraph 81 of the contested decision. In addition, as set out in paragraph 186 above, combined market shares are an important factor in establishing whether non-coordinated effects are likely to result from a concentration. 198 It follows that the arguments put forward by the applicants are not capable of demonstrating that the Commission made a manifest error of assessment in its analysis of the horizontal effects of the concentration at issue. 199 In particular, it is not disputed that, first, the concentration at issue leads to a high combined market share of the parties to that concentration on the Luxembourg markets for the wholesale distribution of beverages and beer through the CHR/on-trade channel (see paragraphs 186 and 195 above) and, secondly, the competitors of those parties hold very limited market shares (see paragraphs 187 and 195 above). The existence of very large market shares is highly important and the relationship between the market shares of the parties to the concentration and of their competitors, especially those of the next largest, is relevant evidence of the existence of a dominant position or of a significant impediment to effective competition (see, to that effect, judgment of 20 December 2023, Naturstrom v Commission, T‑60/21, not published, EU:T:2023:839, paragraph 342). 200 In addition, the parties to the concentration at issue are close competitors whose brand portfolios overlap considerably (see paragraphs 188 and 195 above) and their customers do not have sufficient countervailing buyer power (see paragraphs 189 and 195 above). Furthermore, it has not been demonstrated that the entry of new competitors into the market is likely (paragraphs 190 to 193 and 195 above). 201 In the light of those circumstances, the Commission did not make a manifest error of assessment in finding, in paragraphs 73 and 80 of the contested decision, that the concentration at issue threatened to give rise to non-coordinated effects resulting from horizontal overlaps on the Luxembourg markets for the wholesale distribution of beverages and beer through the CHR/on-trade channel. Analysis of the non-horizontal effects 202 The Commission concluded, in paragraph 84 of the contested decision, that the concentration at issue threatened to create a risk of customer foreclosure resulting from non-horizontal overlaps between, on the one hand, the Luxembourg market for the production and supply of beer through the CHR/on-trade channel and, on the other, the Luxembourg markets for the wholesale distribution of beverages (including beer) through that channel, as well as the smaller market limited to the wholesale distribution of beer in Luxembourg through that channel. 203 In accordance with paragraph 59 of the Guidelines on the assessment of non-horizontal mergers under the Council Regulation on the control of concentrations between undertakings (OJ 2008 C 265, p. 6; ‘the Guidelines on non-horizontal mergers’), which are binding on the Commission by virtue of the case-law cited in paragraph 184 above, in assessing the likelihood of an anticompetitive customer foreclosure scenario, the Commission examines, first, whether the merged entity would have the ability to foreclose access to downstream markets, second, whether it would have the incentive to do so, and third, whether a foreclosure strategy would have a significant detrimental effect on consumers in the downstream market. 204 It follows from paragraphs 85 to 87 of the contested decision that the Commission examined those three cumulative conditions in the present case, without that approach being criticised by the applicants. 205 First, the Commission considered, in paragraph 85 of the contested decision, that the entity resulting from the concentration at issue may have the ability to foreclose its competitors’ access to a sufficient customer base in Luxembourg on the upstream market for the production and supply of beer through the CHR/on-trade channel. In that regard, the applicants do not dispute the fact that the combined market share of the parties to that concentration is between 70 and 80% as regards the downstream markets, namely the Luxembourg markets for the wholesale distribution of all beverages and for the wholesale distribution of beer through that channel. Nor do they call into question the fact that beer producers and suppliers based in Luxembourg and other Member States rely on those parties as a distribution channel. Those factors are an indication that that entity has a significant degree of market power on the downstream markets, as described in paragraph 61 of the Guidelines on non-horizontal mergers, and constitutes, as the Commission noted in paragraph 85 of the contested decision, a significant outlet for those producers and suppliers. 206 In so far as the applicants assert that the Commission failed to take account of the existing alternatives in Luxembourg, it is also apparent from paragraph 85 of the contested decision, which has not been called into question by the applicants, that none of the competing distributors and wholesalers has a market share of more than 5% and that they therefore do not represent a credible alternative on account of their relatively small size. For the reasons set out in paragraphs 192 and 193 above, the distributors of the Greater Region cannot, contrary to the applicants’ view, be considered a sufficient competitive constraint. Therefore, the fact that AB InBev was able to replace its business relationships is irrelevant. It is also irrelevant that AB InBev did not itself acquire Boissons Heintz by exercising its right of pre-emption, since it is an independent economic decision of that undertaking. An economic operator on the upstream market cannot be required to enter the downstream market itself in order to improve the conditions of access to that market. 207 Secondly, the Commission found, in paragraph 86 of the contested decision, that the entity resulting from the concentration at issue might have an incentive to foreclose its competitors’ access to a sufficient customer base in Luxembourg on the upstream market for the production and supply of beer through the CHR/on-trade channel. It pointed out in that paragraph that Brasserie Nationale held a market share of between 40 and 50% and that it had an annual production capacity of 240 000 hectolitres, whereas its beer production in 2022 was only at 155 000 hectolitres. The applicants dispute that finding, submitting that the 100% increase in production compared with large international groups is unrealistic and that an increase in Brasserie Nationale’s production would not be detrimental to competition. They add that Brasserie Nationale is only an SME and that AB InBev holds all the market power. 208 In that regard, it should be noted that the Commission did not consider that Brasserie Nationale could double its production, in that it compared, in paragraph 86 of the contested decision, that undertaking’s production in 2022, which was 155 000 hectolitres, with its potential annual production capacity of 240 000 hectolitres. Since those figures have not been disputed by the applicants, it follows that Brasserie Nationale had an unused additional production capacity of 85 000 hectolitres which enabled it to increase its production by that quantity. 209 In addition, it should be borne in mind, as stated in paragraph 68 of the Guidelines on non-horizontal mergers, that the incentive to foreclose depends on the degree to which it is profitable, since the merged entity faces a trade-off between the possible costs associated with foreclosing the downstream market to its upstream competitors, on the one hand, and the possible gains from doing so, on the other. The other arguments by which the applicants dispute the Commission’s findings, in paragraph 86 of the contested decision, relating to the incentive to foreclose downstream markets do not concern the profitability of such a foreclosure strategy, but only its effects on competition. They will, therefore, be examined in the context of the foreclosure strategy impact assessment in paragraphs 211 and 212 below. 210 In those circumstances, in view of the additional production capacity referred to in paragraph 208 above and Brasserie Nationale’s market share referred to in paragraph 207, which is not disputed by the applicants, the applicants cannot criticise the Commission for taking the view, in paragraph 86 of the contested decision, that it could not be ruled out that the merged entity would have an incentive to favour the distribution of its own beer products and increase the profit gain from increasing its market share downstream at the expense of foreclosed rivals. 211 Thirdly, the Commission considered, in paragraph 87 of the contested decision, that any customer foreclosure strategy was likely to have a significant impact on the upstream market for the production and supply of beer through the CHR/on-trade channel and on the beer sector in general. In particular, it considered that, in view of its important position on that market, it could not be ruled out that Brasserie Nationale might capture additional volumes resulting from the foreclosure of upstream competitors and that any customer foreclosure strategy could result in higher prices or more limited choice for end customers, in particular because of the lack of access to the downstream market for upstream competitors or an increase in costs for downstream competitors. The applicants dispute that reasoning, arguing that, in so far as competitors on the upstream market are large international groups, such as AB InBev, Carlsberg Group or Heineken, it is implausible that Brasserie Nationale could increase its prices without its customers turning to competitors. 212 However, it is not disputed, first, that Brasserie Nationale holds, as the Commission stated in paragraph 87 of the contested decision, an estimated market share of between 40 and 50% on the upstream market for the production and supply of beer through the CHR/on-trade channel in Luxembourg and, second, that the combined market share of the parties to the concentration at issue is approximately between 70 and 80% on the Luxembourg markets for the wholesale distribution of all beverages and the wholesale distribution of beer through that channel, as is apparent from paragraph 85 of the contested decision. In view of the important position occupied by the merged entity on those markets, it is not possible to find, without further evidence, that the competition exerted by the international groups may constitute a sufficient constraint on that entity. As the Commission contends, even if it could be ruled out that an increase in production by Brasserie Nationale would have negative consequences for those international players, that would not be the case for other smaller competitors on the upstream market. 213 It follows that the arguments put forward by the applicants are not capable of demonstrating the existence of a manifest error of assessment in the analysis of the non-horizontal effects of the concentration at issue. 214 In particular, considering the significant degree of market power and the important role, as a distribution channel, of the parties to the concentration at issue on the downstream markets, on the one hand (see paragraphs 205 and 206 above) and Brasserie Nationale’s high market share on the upstream market, on the other (see paragraphs 207 and 208 above), the Commission did not make a manifest error of assessment in finding, in paragraphs 85 and 86 of the contested decision, that the merged entity would have both the ability to foreclose its competitors’ access to a sufficient customer base in Luxembourg on the upstream market and the incentive to do so. Nor did the Commission make a manifest error of assessment in finding, in paragraph 87 of the contested decision, that such a customer foreclosure strategy was likely to have a significant impact on effective competition on the upstream market and on the beer market in general, in particular because of the negative consequences arising from the lack of access to the downstream market for upstream competitors (see paragraph 211 above). 215 In the light of the foregoing considerations, it must be concluded that the applicants have not succeeded in calling into question the preliminary assessments relating to the horizontal and non-horizontal effects of the concentration at issue and that the Commission was entitled to take the view, in paragraph 88 of the contested decision, without committing a manifest error of assessment, that that concentration threatened to ‘significantly affect competition on the upstream market for the production and supply of beer through the CHR/on-trade channel in Luxembourg and on the downstream markets for the wholesale distribution of all beverages through that channel in Luxembourg and the wholesale distribution of beer through that channel in Luxembourg’. 216 The seventh plea must, therefore, be rejected. The eighth plea, alleging that the considerations relating to the appropriateness of the referral are irrelevant 217 The applicants dispute the Commission’s finding that, in the absence of a national merger control system in Luxembourg, the acceptance of the referral request is appropriate and in line with its discretion. They note that Article 22 of Regulation No 139/2004 constitutes a legal regime the conditions for the application of which are laid down in paragraph 3 of that article. Considerations of expediency have no place in such a regime, with the result that the question of the appropriateness of that acceptance does not arise. That applies a fortiori in so far as that regime lays down a series of exceptions. 218 The applicants submit that, although that article has historically been able to make up for the lack of a merger control in certain Member States such as Luxembourg, that is no longer legally permissible 20 years after the adoption of Regulation No 139/2004. In their view, if the Council of the European Union, the Commission and the European Parliament had wished to make merger control compulsory in each Member State, they had 20 years in which to do so. In response to an oral question put by the Court at the hearing, the applicants stated that, by their arguments, they were not seeking to call into question the general possibility for the Grand Duchy of Luxembourg to make a referral request under Article 22(1) of that regulation as such. 219 The Commission and AB InBev dispute the applicants’ arguments. 220 As a preliminary point, it should be recalled that Article 22 of Regulation No 139/2004 allows Member States which do not have national merger control rules to request the Commission to scrutinise concentrations that may have adverse effects in their territory, where those concentrations also affect trade between Member States (see, to that effect, judgment of 3 September 2024, Illumina and Grail v Commission, C‑611/22 P and C‑625/22 P, EU:C:2024:677, paragraphs 147, 164 and 199). 221 Accordingly, Article 22 of Regulation No 139/2004 allows the Grand Duchy of Luxembourg to refer the examination of a concentration to the Commission, despite the fact that that Member State does not have national merger control rules. 222 In accordance with Article 22(3) of Regulation No 139/2004, the Commission ‘may’ decide to examine a concentration which is the subject of such a referral request if the formal and substantive conditions laid down in that provision have been satisfied. 223 While it follows that those conditions must be satisfied in order for a referral request to be accepted, the word ‘may’ indicates that the Commission is not obliged to accept it, but has a margin of discretion in that regard. Thus, as stated in paragraph 7 of the referral notice, the Commission retains a considerable margin of discretion in deciding whether to agree to examine, under Article 22 of Regulation No 139/2004, concentrations not falling within its original jurisdiction, pursuant to that regulation. 224 The Commission was, therefore, entitled to assess the appropriateness of the referral of the concentration at issue by taking into account the factors characterising the situation in this case. More specifically, the applicants cannot criticise the Commission for having taken account, in paragraph 92 of the contested decision, of the fact that the Grand Duchy of Luxembourg did not have a merger control system and that, if the referral request were not accepted, the concentration at issue and its effects would not be caught by any other merger control system. 225 The eighth plea must, therefore, be rejected. Costs 226 Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As the applicants have been unsuccessful, they must be ordered to pay their own costs and those incurred by the Commission, in accordance with the form of order sought by the Commission. 227 In accordance with Article 138(3) of the Rules of Procedure, AB InBev and the ACL are to bear their own costs. On those grounds, THE GENERAL COURT (Sixth Chamber, Extended Composition) hereby: 1. Dismisses the action; 2. Orders Brasserie Nationale (formerly Brasseries Funck-Bricher and Bofferding) and Munhowen SA to bear their own costs and to pay those incurred by the European Commission; 3. Orders Anheuser-Busch InBev and the Autorité de concurrence du Grand-Duché de Luxembourg to bear their own costs. Costeira Kancheva Öberg Zilgalvis Tichy-Fisslberger Delivered in open court in Luxembourg on 2 July 2025. [Signatures] Contents Background to the dispute The entities in question The concentration at issue The referral request to the Commission The contested decision Forms of order sought Law Representation of the applicants by an independent lawyer The first plea, alleging infringement of the language rules applicable under Regulation No 1 The second plea, alleging failure to comply with the time limit of 15 working days provided for in the second subparagraph of Article 22(1) of Regulation No 139/2004 Interpretation of the concept of ‘made known’ The starting point of the time limit of 15 working days in the present case Verification by the Commission of compliance with the time limit of 15 working days The alleged infringement of the principles of legitimate expectations and legal certainty The third plea, alleging infringement of the time limit laid down in the first subparagraph of Article 22(2) of Regulation No 139/2004 The fourth plea, alleging late communication of the contested decision The fifth plea, alleging infringement of the rights of the defence and of the principles of equality of arms, procedural fairness and legitimate expectations The sixth plea, alleging that there is no effect on trade between Member States The seventh plea, alleging that there is no threat of a significant effect on competition in the territory of Luxembourg Analysis of the horizontal effects Analysis of the non-horizontal effects The eighth plea, alleging that the considerations relating to the appropriateness of the referral are irrelevant Costs * Language of the case: French.