Opinion of the Advocate General — ECLI:EU:C:2022:817
Date: 2022-10-20
Language of the case: English
Subject matter: Competition
Procedure: Application to intervene;Action for annulment;Appeal - unfounded;Appeal - successful

summary set out in paragraphs 128 to 136 of the judgment under appeal. 51 See also paragraphs 238 and 239 of the judgment under appeal. 52 According to the definition set out in footnote 39 to paragraph 29 of the Guidelines, the diversion ratio from product A to product B measures the proportion of the sales of product A lost due to a price increase of product A that are captured by product B. 53 See also the summary of the first theory of harm set out in paragraphs 128 to 136 of the judgment under appeal. 54 As regards the application of those rules in competition law, see, inter alia, my Opinion in Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission (C‑105/04 P, EU:C:2005:751, points 72 to 74). 55 See recital 1197, 1223 and 2340 et seq. of the decision at issue. 56 See references in Monti, G., ‘EU Merger Control After CK Telecoms UK Investments v Commission’, World Competition, Vol. 43, No 4, 2020, pp. 447, 453 to 456, in particular footnote 34. 57 Monti, G., (footnote 56 of the present Opinion), p. 455. 58 Commission Regulation of 7 April 2004 implementing Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings (OJ 2004 L 133, p. 1). 59 Judgment of 30 January 2020, Generics (UK) and Others (C‑307/18, EU:C:2020:52, paragraphs 103 and 105); see also my Opinion in Generics (UK) and Others (C‑307/18, EU:C:2020:28, points 158 to 166). 60 Judgment of 30 January 2020, Generics (UK) and Others (C‑307/18, EU:C:2020:52, paragraph 104); see also my Opinion in Generics (UK) and Others (C‑307/18, EU:C:2020:28, point 148 et seq.). 61 See, to that effect, judgments of 18 September 2001, M6 and Others v Commission (T‑112/99, EU:T:2001:215, paragraphs 77 and 78), and of 30 June 2016, CB v Commission (T‑491/07 RENV, not published, EU:T:2016:379, paragraphs 69 and 70). 62 See, to that effect, judgment of 10 July 2008, Bertelsmann and Sony Corporation of America v Impala (C‑413/06 P, EU:C:2008:392, paragraph 50 and the case-law cited). 63 See, to that effect, judgment of 10 July 2008, Bertelsmann and Sony Corporation of America v Impala (C‑413/06 P, EU:C:2008:392, paragraphs 46 and 51). 64 Judgments of 15 February 2005, Commission v Tetra Laval (C‑12/03 P, EU:C:2005:87, paragraph 39), and of 10 July 2008, Bertelsmann and Sony Corporation of America v Impala (C‑413/06 P, EU:C:2008:392, paragraph 145). 65 See judgment of 26 January 2017, Commission v Keramag Keramische Werke and Others (C‑613/13 P, EU:C:2017:49, paragraph 52 and the case-law cited). 66 See also, to that effect, judgment of 9 July 2007, Sun Chemical Group and Others v Commission (T‑282/06, EU:T:2007:203, paragraphs 56 and 57). 67 See, inter alia, recitals 1175 to 1225 and, in particular, recitals 1226 and 1227 of the decision at issue. 68 See recitals 330 to 1174 of the decision at issue. In particular, the General Court took into account the following factors and evidence: prior to the concentration, O2 exerted an important competitive constraint and, in the absence of the concentration, would continue to do so (recitals 778 to 872 of the decision at issue; see paragraph 132 of the judgment under appeal); the merged entity will have less incentive to compete aggressively after the concentration (recitals 873 to 906 of the decision at issue; see paragraph 133 of the judgment under appeal); the other two mobile network operators have primarily focused competition on value generation and on customer retention, and are unlikely to have the same ability to compete after the concentration at issue and, in any event, are likely to be disinclined to compete aggressively (recitals 907 to 960 of the decision at issue; see paragraph 135 of the judgment under appeal); the non-MNOs cannot compensate for the significant loss of competition resulting from the concentration at issue, and it is likely that the limited competitive pressure which they exert will be further reduced after that concentration (paragraphs 961 to 1148 of the decision at issue; see paragraph 136 of the judgment under appeal). However, the General Court made no reference to the content of recitals 1149 to 1174 of the decision at issue, concerning competition from independent specialist retailers. 69 See paragraph 116, footnote 53, of its appeal and paragraphs 146 and 147 of CK Telecoms’ response. 70 In paragraph 120 of its appeal, although without directly referring to paragraph 289 of the judgment under appeal, the Commission confines itself to asserting that the threshold of ‘significant’ in nature relates to the concept of ‘significant impediment to effective competition’, as implemented by the Guidelines, and not, individually, to the various findings forming part of a theory of harm. Similarly, in footnote 68 to paragraph 127 of that appeal, the Commission states only by way of example that the General Court ‘has not sought to determine whether, in combination with the other negative effects caused by the concentration [at issue], the overall competitive harm likely to result from the concentration would be significant’. 71 By the seventh part of the first plea at first instance, to which a response is given in paragraphs 286 to 291 of the judgment under appeal, CK Telecoms complained that the Commission, in essence, had failed to make an overall assessment of the existence of non-coordinated effects and failed to state the reasons why it had concluded, in recitals 1226 and 1227 of the decision at issue, that the alleged constraints removed by the concentration at issue are important within the meaning of paragraph 25 of the Guidelines and that the alleged impediments to competition brought about by the concentration are significant within the meaning of Article 2(3) of Regulation No 139/2004. 72 See recital 1228 et seq. of the decision at issue. 73 The square brackets contain confidential information, referred to in the public version of the judgment under appeal as ‘plan [A] and plan [B]’. 74 See recitals 1229 to 1234 of the decision at issue and paragraph 295 of the judgment under appeal. 75 See recital 1232 of the decision at issue and paragraph 298 of the judgment under appeal. 76 See also paragraph 299 of the judgment under appeal. 77 See recitals 1733 and 1737 of the decision at issue. 78 See recitals 1732 to 1742 of the decision at issue and paragraphs 398 and 399 of the judgment under appeal. 79 See also paragraph 416 of the judgment under appeal. 80 See paragraphs 205 to 215 of the application. 81 See paragraphs 133 to 138 of the reply. 82 In the absence of an express complaint to that effect by the Commission, there is no need to examine whether that approach infringes the principle ‘ne ultra petita’; see, in that regard, judgment of 14 November 2017, British Airways v Commission (C‑122/16 P, EU:C:2017:861, paragraph 81 and the case-law cited). 83 See judgments of 19 January 2017, Commission v Total and Elf Aquitaine (C‑351/15 P, EU:C:2017:27, paragraph 19 and the case-law cited), and of 11 June 2020, Commission v Di Bernardo (C‑114/19 P, EU:C:2020:457, paragraph 55 and the case-law cited). 84 That paragraph upholds CK Telecoms’ first plea, but does not rule on the sixth and seventh parts thereof. 85 That paragraph confines itself to upholding the third, fourth and fifth parts of CK Telecoms’ third plea. 86 Those paragraphs uphold the sixth part of the third plea, but do not rule on the ‘other parts of that plea’, that is to say its first, second and seventh parts. 87 That paragraph upholds the first three parts of the fourth plea, but does not rule on the fourth, fifth and sixth parts of that plea. 88 See paragraphs 125 and 455 of the judgment under appeal. 89 See, in particular, points 122 and 180 of the present Opinion.