Judgment;Abstract;Judgment (extracts) — ECLI:EU:T:2024:813
Date: 2024-11-13
Language of the case: German
Court formation: Seventh Chamber, Extended Composition
Subject matter: Competition;Concentrations between undertakings
Procedure: Action for annulment - unfounded;Action for annulment - inadmissible
Origin: Germany

summary in nature, it must be stated that that part of the contested decision, although its heading refers to a ‘prima facie’ analysis, contains a full examination of all the objections raised by the market participants during the assessment relating to the commitments initially submitted by Vodafone (see, in particular, recitals 1995 to 2005). Therefore, the Commission’s examination of the potentially negative effects of the WCBA commitment on competitors cannot be qualified as being summary in nature, which is sufficient to dismiss the applicant’s argument. 346 In any event, as the Commission submits in the present proceedings, the use of the expression ‘prima facie’ in the heading to that examination stems from an application of paragraph 104 of the Notice on remedies, according to which ‘in assessing whether the proposed purchaser threatens to create competition problems, the Commission will undertake a prima facie assessment in the light of the information available to the Commission in the purchaser approval process’. While it is true that that paragraph concerns the approval of the purchaser and of the sale and purchase agreement in the context of a divestiture commitment, it should be noted, first, that it is apparent from paragraph 129 of that notice that many of the principles relating to the implementation of divestiture commitments can equally be applied to other types of commitment and, second, that the examination of the risks to competition which might arise from the approval of the undertaking benefiting from a commitment providing for access to a network follows a logic similar to that which makes it possible to determine whether the purchaser proposed in the context of a divestiture commitment threatens to create competition problems, with the result that the Commission may carry out a similar analysis of those threats or that threat in those two situations. 347 It follows from the foregoing that the applicant has not demonstrated that the examination carried out by the Commission in the contested decision of the effects of the concentration in conjunction with the WCBA commitment on competitors active on the fixed internet access market was insufficient, or insufficiently reasoned, with the result that that complaint must be rejected. (b) The assessment of the ‘prima facie’ effects of the WCBA commitment on competition was manifestly erroneous … 358 As regards the substance of the other arguments put forward by the applicant, it must be pointed out that the Commission must show, when conducting its phase II examination of the concentration, with a sufficient degree of probability that the merger, as modified by the commitments proposed by the parties thereto, will not significantly impede effective competition in the internal market or in a substantial part of it (see judgment of 23 May 2019, KPN v Commission, T‑370/17, EU:T:2019:354, paragraph 110 and the case-law cited). 359 Similarly as for an assessment of the effects of a concentration, the question whether a commitment raises competition concerns involves an assessment of probabilities and not an obligation on the Commission to show beyond any reasonable doubt that the commitment in question does not give rise to any competition concerns (see, by analogy, judgment of 11 December 2013, Cisco Systems and Messagenet v Commission, T‑79/12, EU:T:2013:635, paragraph 47). 360 Moreover, notifying parties are not obliged to confine themselves to proposing commitments aimed strictly at restoring the competitive situation existing before the concentration in order to allow the Commission to declare that transaction compatible with the internal market (see, to that effect, judgment of 23 February 2006, Cementbouw Handel & Industrie v Commission, T‑282/02, EU:T:2006:64, paragraph 308). 361 In the present case, as regards, in the first place, the applicant’s allegation that the WCBA commitment would adversely affect the market and strengthen its oligopolistic structure by granting wholesale access on preferred terms to Telefónica, it must be observed that, in the contested decision, the Commission explained that that remedy would strengthen that operator, but that that would not give rise to competition concerns since Telefónica was not a strong competitor in the markets for fixed internet access and for 2P bundles, in which it had a limited market share of 5 to 6%, and its growth rate was negative. The Commission added that, although the WCBA commitment offered more attractive commercial conditions than those offered by Deutsche Telekom, that would not have the effect of increasing Telefónica’s competitiveness in such a way as to create competition problems in itself (see recitals 1993 and 1994 of the contested decision). 362 In order to demonstrate the contrary, the applicant merely puts forward vague and general arguments which cannot call into question that evidence put forward by the Commission. 363 Accordingly, while the applicant maintains that Telefónica was a large vertically integrated pan-European cable operator, it does not dispute the limited market share and the negative growth rate of that operator on the relevant markets, namely the markets for fixed internet access and 2P bundles, as found by the Commission in the contested decision, that is to say, the factors which enabled it to conclude that Telefónica was not a strong competitor on those markets and that the strengthening of that operator, to which the WCBA commitment would give rise, would not in itself give rise to competition concerns. 364 Furthermore, it should be observed that the applicant has not demonstrated that, under the WCBA commitment, Telefónica’s position on the relevant markets would be altered in such a way that that remedy would, in the relatively near future, be capable, in itself, of resulting in competition concerns to the detriment of small and medium-sized competitors. 365 Therefore, the applicant has not shown that the Commission made a manifest error of assessment in finding that the WCBA commitment would not in itself have the effect of creating competition concerns. … On those grounds, THE GENERAL COURT (Seventh Chamber, Extended Composition) hereby: 1. Dismisses the action; 2. Orders NetCologne Gesellschaft für Telekommunikation mbH to pay the costs. van der Woude da Silva Passos Reine Truchot Sampol Pucurull Delivered in open court in Luxembourg on 13 November 2024. [Signatures] * Language of the case: German. 1 Only the paragraphs of the present judgment which the Court considers it appropriate to publish are reproduced here.