Order — ECLI:EU:T:2004:353
Date: 2004-12-07
Language of the case: French
Court formation: Third Chamber, Extended Composition
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices
Concepts: Costs
Procedure: Action for annulment;Application as to costs
Origin: France

Summary of the Judgment 
1. Actions for annulment — Actionable measures — Measures producing binding legal 
effects — Measure altering the statement of reasons for a previous measure — 
Assessment by reference to the impact of the alteration on the decision-making 
substance of the measure in question 
(Art. 230 EC) 
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SUMMARY — CASE T-251/00 
2. Competition — Concentrations between undertakings — Examination by the Com­
mission — Approval decision — Legal certainty — Statement of reasons pronounc­
ing on the ancillary and necessary character of restrictions on competition which have 
been notified — Legal assessment determining the substance of the decision set out in 
the operative part 
(Council Regulation No 4064/89, Art. 6(1) (b)) 
3. Acts of the institutions — Retrospective withdrawal — Conditions — Unlawfulness 
of the act withdrawn — Compliance with the principle of the protection of legitimate 
expectations — Burden of proof 
4. Acts of the institutions — Statement of reasons — Obligation — Scope 
(Art. 253 EC) 
1. Any measure which produces binding 
legal effects such as to affect the inter­
ests of an applicant by bringing about a 
distinct change in his legal position is 
an act or decision which may be the 
subject of an action for annulment 
under Article 230 EC. To determine 
whether an act or decision produces 
such effects, it is necessary to look to its 
substance. Thus, a decision whereby 
the Commission alters only the reason­
ing of a previous decision may be the 
subject-matter of an action if that 
alteration changes the substance of 
what was decided in the operative part 
of the decision in question and, by so 
doing, brings about a distinct change in 
the legal position of the person to 
whom it is addressed. Although the 
courts have consistently held that only 
the operative part of an act is capable 
of producing binding legal effects and, 
thereby, of having adverse effects, 
nevertheless the statement of the rea­
sons for a measure must be taken into 
account in determining the exact mean­
ing of what is stated in the operative 
part. 
2. Under Article 6(1)(b) of Regulation 
No 4064/89 on the control of concen­
trations between undertakings, the 
decision whereby a concentration is 
declared compatible with the common 
market also covers restrictions on 
competition directly related to the 
concentration and necessary for its 
implementation. 
Taking into account the terms and the 
legislative context, as well as the origin 
and aims of that provision, it must be 
interpreted as meaning that where, in 
the grounds of a decision approving a 
concentration, the Commission catego­
rises the restrictions notified by the 
parties to the concentration as ancillary 
restrictions, non-ancillary restrictions 
or ancillary restrictions for a limited 
period, the Commission is not deliver­
ing a mere opinion without binding 
legal force but, on the contrary, is 
making legal assessments which deter­
mine the substance of what it decided 
in the operative part of the decision. (see paras 63-68) 
II - 4826 
LAGARDÈRE AND CANAL+ v COMMISSION 
If that were not so, the parties to a 
concentration would not obtain the 
benefit of legal certainty as to the 
whole of the operation even though, 
where the conditions laid down by that 
provision are actually fulfilled, the 
whole operation is recognised as being 
economically inseparable. By incor­
porating Article 6(1) into Regulation 
No 4064/89, the Community legis­
lature intended to establish a decision­
making procedure which enables the 
parties to a concentration within the 
meaning of Article 3 of that regulation 
to obtain, in consideration of the 
binding system laid down by Articles 4 
and 7 of the regulation, of an obli­
gation of notification and of the sus­
pensory effect of that obligation, legal 
certainty not only in relation to the 
concentration but also as regards the 
restrictions notified by the parties to 
the concentration as being directly 
related and necessary to its implemen­
tation. 
To compel the parties to a concen­
tration, in return for legal certainty as 
to the restrictions which they consider 
economically inseparable from the con­
centration, to give notice of such 
restrictions pursuant to other provi­
sions, in particular Regulation No 17, 
simultaneously with notification under 
Regulation No 4064/89, would be 
contrary to the principle of effective 
control of concentrations with a Com­
munity dimension. In addition, in the 
introduction to its notice on ancillary 
restrictions, the Commission itself 
observed that 'this avoids parallel 
Commission proceedings, one con­
cerned with the assessment of the 
concentration under [Regulation 
No 4064/89], and the other aimed at 
applying Articles [81 EC and 82 EC] to 
the restrictions which are ancillary to 
the concentration'. 
(see paras 101, 103-104, 109) 
3. A body which has power to adopt a 
particular legal measure also has power 
to abrogate or amend it by adopting an 
actus contrarius, unless such power is 
expressly conferred upon another 
body. 
In that regard, whilst the retroactive 
withdrawal of a legal measure which 
has conferred individual rights or simi­
lar benefits is contrary to the general 
principles of law, the retrospective 
withdrawal of an illegal administrative 
act must be accepted, albeit subject to 
very strict conditions. It is permissible 
only if it occurs within a reasonable 
time and sufficient account is taken of 
the legitimate expectations of the bene­
ficiary of the act who may have been 
led to rely on its lawfulness. 
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SUMMARY — CASE T-251/00 
The institution responsible for the 
withdrawn act has the burden of prov­
ing its illegality and of demonstrating 
that the other conditions for retrospec­
tive withdrawal of an illegal act are 
fulfilled. 
(see paras 130, 139-141) 
4. The extent of the obligation to state 
reasons depends on the nature of the 
measure in question and on the context 
in which it was adopted. The statement 
of reasons must disclose in a clear and 
unequivocal fashion the reasoning of 
the institution, in such a way as to give 
the persons concerned sufficient infor­
mation to enable them to ascertain 
whether the decision is well founded or 
whether it is vitiated by a defect which 
may permit its legality to be contested, 
and to enable the Community judica­
ture to carry out its review of the 
legality of the measure. 
(see para. 155) 
II - 4828