Judgment — ECLI:EU:T:2002:254
Date: 2002-10-22
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices
Concepts: Relevant market;Assessment criteria;Proceedings;Decision of the Commission
Procedure: Action for annulment - successful
Origin: France

Summary of the Judgment 
1. Competition — Concentrations — Examination by the Commission — Decision 
requesting information addressed to the notifying parties — Automatic suspension 
of the four-month period referred to in Article 10(3) of Regulation No 4064/89 
(Council Regulation No 4064/89, Arts 10(3) and (4) and 11(5)) 
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SUMMARY — CASE T-310/01 
2. Competition — Concentrations — Assessment of compatibility with the common 
market — Relevant market — Geographical definition 
(Council Regulation No 4064/89, Art. 2(3)) 
3. Competition — Concentrations — Assessment of compatibility with the common 
market — Creation or strengthening of a dominant position impeding competition — 
Assessment criteria 
(Council Regulation No 4064/89, Art. 2(3)) 
4. Competition — Concentrations — Assessment of compatibility with the common 
market — Creation or strengthening of a dominant position impeding competition — 
Relevance of the range of products and brands of the entity created by the 
concentration — Not decisive where presence and supply vary from one national 
market to another 
(Council Regulation No 4064/89, Art. 2(3» 
5. Competition — Concentrations — Incompleteness of a decision declaring a concen­
tration incompatible with the common market — Not relevant if the decision is 
otherwise justified by a set of factors 
(Council Regulation No 4064/89, Art. 2(3)) 
6. Competition — Concentrations — Administrative procedure — Observance of the 
rights of the defence — Statement of objections — Necessary content 
(Commission Regulation No 447/98, Art. 13(2)) 
1. Where, following a failure by the 
parties notifying a concentration 
between undertakings to respond to a 
letter requesting information within the 
reasonable period set therein, the Com­
mission adopts a decision, pursuant to 
Article 11(5) of Regulation No 4064/89 
on the control of concentrations 
between undertakings, ordering the 
parties to provide it with the infor­
mation requested, the four-month 
period referred to in Article 10(3) of 
that regulation is 'exceptionally... sus­
pended', under the mandatory terms of 
Article 10(4). Where a decision requir­
ing information has been properly sent 
by the Commission to a notifying 
undertaking, the fact that the term 
'exceptionally' is used does not pre­
clude that decision from automatically 
suspending the four-month period from 
the date on which it is found that the 
necessary information has not been 
provided until the date on which it is 
provided. 
What is exceptional, within the mean­
ing of Regulation No 4064/89, about 
suspension of the relevant period is the 
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occurrence of the conditions which 
allow a decision requesting infor­
mation to be adopted and not the 
consequences to be inferred from such 
a decision. 
(see paras 99-100, 104, 106, 109) 
2. The geographic market to be taken into 
account for the purpose of applying 
Regulation No 4064/89 on the control 
of concentrations between undertak­
ings is a defined geographic area in 
which the product concerned is mar­
keted and where the conditions of 
competition are sufficiently homogen­
eous for all economic operators, so that 
the effect on competition of the con­
centration notified can be evaluated 
rationally. 
(see para. 154) 
3. When applying Regulation No 4064/89 
on the control of concentrations 
between undertakings, the Commission 
must, for the purpose of demonstrating 
the risk of the creation or strengthening 
of a dominant position impeding com­
petition on previously defined national 
sectoral markets, use evidence of econ­
omic power relating to those markets. 
It may also take account of trans­
national effects which may increase the 
impact which a concentration has on 
each of the national sectoral markets 
deemed relevant but those effects must 
be demonstrated to the requisite legal 
standard and not merely presumed to 
exist. 
(see paras 171, 178-179) 
4. When applying Regulation No 4064/89 
on the control of concentrations 
between undertakings, the Commission 
may not base the arguments supporting 
its assessment of the risk of the creation 
or strengthening of a dominant pos­
ition impeding competition on the 
national sectoral markets affected by 
a concentration on the fact that the 
new entity will have a range of prod­
ucts and brands which is unrivalled 
throughout the European Community 
where it is unable to establish that the 
entire range is offered on the relevant 
national markets. 
(see paras 239-243, 255-257, 262) 
5. However incomplete a Commission 
decision finding a concentration 
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SUMMARY — CASE T-310/01 
incompatible with the common market 
may be, that cannot entail annulment 
of the decision if, and to the extent to 
which, all the other elements of the 
decision permit the Community judi­
cature to conclude that in any event 
implementation of the transaction will 
create or strengthen a dominant pos­
ition as a result of which effective 
competition will be significantly 
impeded for the purposes of 
Article 2(3) of Regulation No 4064/89 
on the control of concentrations 
between undertakings. 
(see para. 412) 
6. The statement of objections must con­
tain an account of the objections cast in 
sufficiently clear terms to achieve the 
objective ascribed to it by the Commu­
nity regulations, namely to provide all 
the information the undertakings need 
to defend themselves properly before 
the Commission adopts a final 
decision. 
That requirement is particularly strict 
in the procedures for reviewing con­
centrations between undertakings gov­
erned by Regulation No 4064/94 in 
which the Commission adopts a pros­
pective approach to the state of com­
petition to which the concentration 
under examination is likely to give rise 
in the future In those procedures, the 
statement of objections is not solely 
intended to spell out the complaints 
and give the undertaking to which it is 
addressed the opportunity to submit 
comments in response. It is also 
intended to give the notifying parties 
the chance to suggest corrective meas­
ures and, in particular, proposals for 
divestiture and sufficient time, given 
the requirement for speed which char­
acterises the general scheme of Regu­
lation No 4064/89, to ascertain the 
extent to which divestiture is necessary 
with a view to rendering the trans­
action compatible with the common 
market in good time. 
(see paras 440-444) 
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