Judgment — ECLI:EU:T:2003:101
Date: 2003-04-03
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices;Concentrations between undertakings;Concerted practices
Concepts: Statement of reasons;Applications by natural or legal persons;Intervention;Admissibility and examination of applications, forms of order sought and pleas in law;Rights of the defence and procedural guarantees;Proceedings;Decision of the Commission;Commitments;Division of powers between the Commission and the national authorities
Procedure: Action for annulment - unfounded
Origin: Netherlands

Summary of the Judgment 
1. Competition — Concentrations — Investigation by the Commission — Adoption of 
a decision declaring a concentration compatible with the common market without 
initiating the Phase II procedure — Condition — Absence of serious doubts — 
Commitments entered into by the undertakings concerned likely to make the notified 
concentration compatible — Assessments of an economic nature — Margin of 
discretion — Review by the Court — Purpose — No manifest error of assessment 
(Council Regulation No 4064/89, Art. 6(1» 
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SUMMARY — CASE T-l 19/02 
2. Procedure — Intervention — Plea in law not raised by the applicant — Inadmissible 
(EC Statute of the Court of Justice, Art. 37, third and fourth paras; Rules of Procedure 
of the Court of First Instance, Art. 116(3)) 
3. Procedure — Expedited procedure — "Whether account to be taken of a plea first 
raised at the hearing — Infringement of the rights of the defence 
(Rules of Procedure of the Court of First Instance, Arts 76a and 116(4)) 
4. Competition — Concentrations — Assessment of compatibility with the common 
market — Commitments entered into by the undertakings concerned likely to make 
the notified concentration compatible — Requirement of compatibility with Article 81 
EC — Commitment to grant trade-mark licences containing a clause requiring the 
licensee to concentrate sales on the territory of a Member State — Whether 
permissible 
(Art. 81(1) and (3) EC; Council Regulation No 4064/89, Art. 2(1)) 
5. Competition —· Concentrations — Administrative procedure — Commitments 
entered into by the undertakings concerned — Modifications notified after the 
time-limit — Account taken by the Commission of the modified commitments in 
order to find the concentration compatible with the common market — Whether 
permissible — Conditions 
(Commission Regulation No 447/98, Art. 18(1); Commission Notice on remedies 
acceptable under Regulations No 4064/89 and No 447/98, para. 37) 
6. Actions for annulment — Natural or legal persons — Measures of direct and 
individual concern to them — Decision to refer the examination of a concentration 
to the competent national authorities — Third-party undertaking 
(Art. 230, fourth para., EC; Council Regulation No 4064/89, Art. 9(3)) 
7. Actions for annulment — Natural or legal persons — Measures of direct and 
individual concern to them — Decision to refer the examination of a concentration 
to the competent authorities of a Member State — Third-party undertaking 
(Art. 230, fourth para., EC: Council Regulation No 4064/89, Art. 9(3)) 
8. Competition — Concentrations — Investigation by the Commission — Referral of 
the examination of a concentration to the competent authorities of a Member State — 
Conditions — Review by the Court — Scope 
(Council Regulation No 4064/89, Art. 9(2) (a)) 
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9. Competition — Concentrations — Investigation by tbc Commission — Decision to 
refer the examination of a concentration to the competent authorities of a Member 
State — Discretion of the Commission — Review by the Court — Limits 
(Council Regulation No 4064/89, Art. 9(3)) 
10. Competition — Concentrations — Investigation by the Commission — Decision to 
refer the examination of a concentration to the competent authorities of a Member 
State — Conditions — Risk of a fragmented assessment of a single transaction — 
Irrelevant 
(Council Regulation No 4064/89, Art. 9(2) and (3)) 
11. Competition — Concentrations — Referral of the examination of a concentration to 
the competent authorities of a Member State — Obligations imposed on those 
authorities — Limits 
(Art. 10 EC; Council Regulation No 4064/89, Art. 9) 
12. Competition — Concentrations — Referral of the examination of a concentration to 
the competent authorities of a Member State — Effects — Exclusive competence of 
the national authorities to rule on the concentration — Commission may not bind the 
national authorities as to their substantive findings 
(Council Regulation No 4064/89, Art. 9(2) and (3)) 
13. Acts of the institutions — Statement of reasons — Obligation — Scope — Decision 
to refer the examination of a concentration to the competent authorities of a Member 
State 
(Art. 253 EC; Council Regulation No 4064/89, Art. 9(2)(a) and (3)) 
1. Although the Commission has no dis­
cretion as regards the initiation of the 
Phase II procedure where it encounters 
serious doubts with respect to the 
compatibility of a concentration with 
the common market, it nevertheless 
enjoys a certain margin of discretion in 
identifying and evaluating the circum­
stances of the case in order to deter­
mine whether or not they present 
serious doubts or, where commitments 
have been proposed, whether they 
continue to present them. Even if the 
notion of 'serious doubts' is an objec­
tive one, the identification of such 
doubts necessarily requires the Com­
mission to carry out complex economic 
assessments, in particular where it must 
assess whether the commitments pro­
posed by the parties to the concen­
tration are sufficient to dispel those 
serious doubts. 
Where the Community Courts are 
called on to consider whether, having 
regard to their scope and content, such 
commitments are of a kind which 
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SUMMARY — CASE T-119/02 
permits the Commission to adopt a 
decision of approval without initiating 
the Phase II procedure, it must examine 
whether the Commission was entitled, 
without committing a manifest error of 
assessment, to take the view that those 
commitments constituted a direct and 
sufficient response capable of clearly 
dispelling all serious doubts. 
(see paras 77, 80) 
2. Whilst the third paragraph of Article 37 
of the Statute of the Court of Justice 
and Article 116(3) of the Rules of 
Procedure of the Court of First Instance 
do not preclude the intervener from 
advancing arguments which are new or 
which differ from those of the party he 
supports, lest his intervention be 
limited to restating the arguments 
advanced in the application, it cannot 
be accepted that those provisions per­
mit him to alter or distort the context 
of the dispute defined in the appli­
cation by raising new pleas in law. 
Therefore, an intervener, who must, 
under Article 116(3) of the Rules of 
Procedure, accept the case as he finds it 
at the time of his intervention and 
whose submissions in an application to 
intervene are, under the fourth para­
graph of Article 37 of the Statute of the 
Court of Justice, to be limited to 
supporting the submissions of one of 
the main parties, does not have stand­
ing to raise a plea which has not been 
raised by the applicant. Such a plea 
must be rejected as inadmissible. 
(see paras 203-204, 212-213) 
3. Where, in an expedited procedure 
under Article 76a of the Rules of 
Procedure of the Court of First 
Instance, a plea was not — in accord­
ance with paragraph 2 of that 
article ·— the subject of a statement 
in intervention within the meaning of 
Article 116(4) of those Rules and was 
necessarily and unavoidably submitted 
for the first time at the hearing before 
the Court, it is capable of prejudicing 
the right, pursuant to the adversarial 
principle, of the party whose claims it 
is intended to counter to state its views 
properly in that regard. If the Court 
were to have to examine such a plea 
and, as the case may be, declare it to be 
well founded, that might result in an 
infringement of the rights of the 
defence in the proceedings before the 
Court. 
(see para. 205) 
4. The Commission cannot, when apply­
ing Regulation No 4064/89, approve 
commitments which are contrary to the 
competition rules laid down in the 
Treaty because they impair the preser-
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ROYAL PHILIPS ELECTRONICS v COMMISSION 
vation or development of effective 
competition in the common market. 
In that context, the Commission must 
appraise the compatibility of those 
commitments in particular according 
to the criteria of Article 81(1) and (3) 
EC. 
A clause which, in the context of a 
commitment to grant trade-mark 
licences imposed on the parties to the 
concentration, obliges a licensee to 
concentrate the sale of the products 
covered by the licence on his territory 
does not, in principle, have as its object 
or effect the restriction of competition 
within the meaning of Article 81(1) EC 
and, even if it has to be interpreted as 
prohibiting the licensees from expor­
ting products bearing the trade mark in 
question to other Member States, is not 
such as to restrict competition appreci­
ably on the relevant markets in the 
Community or affect significantly trade 
between the Member States within the 
meaning of that provision if it is clear 
that, in respect of the products con­
cerned, the markets are national in 
dimension and are not affected by 
significant parallel imports. 
(see paras 216-218) 
5. Article 18(1) of Regulation No 447/98 
on the notifications, time-limits and 
hearings provided for in Regulation 
No 4064/89 on the control of concen­
trations between undertakings must be 
interpreted as meaning that, whilst the 
parties to a concentration cannot 
oblige the Commission to take account 
of commitments and modifications to 
them submitted after the three-week 
time-limit for notification prescribed in 
Article 18(1), the Commission must 
nevertheless be able, where it considers 
that it has the time necessary to exam­
ine them, to authorise the concen­
tration in light of those commitments, 
even if modifications are made to them 
after that time-limit. 
Consideration of such modifications 
made after that time-limit is also in 
keeping with the Notice on remedies 
accep tab le under Regula t ions 
No 4 0 6 4 / 8 9 and R e g u l a t i o n 
No 447/98, adopted by the Commis­
sion and binding on it in so far as it 
does not depart from the rules in the 
T rea ty and from R e g u l a t i o n 
No 4064/89 if those modifications 
can be regarded as limited modifica­
tions within the meaning of paragraph 
37 of that notice. 
(see paras 235, 239, 242, 249) 
6. For a Community measure to be of 
direct concern to a natural or legal 
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SUMMARY — CASET-119/02 
person within the meaning of 
Article 230 EC, it must directly affect 
the person's legal situation and its 
implementation must be purely auto­
matic and result from Community rules 
alone without the application of other 
intermediate rules. 
The purpose of a decision to refer the 
examination of a concentration to the 
competent authorities of a Member 
State, adopted by the Commission 
under Article 9(3) of Regulation 
No 4064/89 on the control of concen­
trations between undertakings is not to 
rule on the effects of the concentration 
on the relevant markets which are the 
subject of the referral but to transfer 
responsibility for the examination of 
certain aspects of the concentration to 
those national authorities which have 
requested the referral in order that they 
may give a ruling in accordance with 
their national competition law. 
However, since the effect of that refer­
ral decision is to deprive a third-party 
undertaking of the opportunity to have 
the Commission review the lawfulness 
of the concentration from the point of 
view of Regulation No 4064/89, of the 
procedural rights conferred by that 
regulation on third parties and of the 
judicial protection provided for by the 
Treaty, it must be regarded as capable 
of affecting the legal situation of that 
undertaking. 
(see paras 272, 280, 286) 
7. Persons other than the addressees of a 
decision can claim to be individually 
concerned within the meaning of 
Article 230 EC only if that decision 
affects them by reason of certain 
attributes peculiar to them, or by 
reason of a factual situation which 
differentiates them from all other per­
sons and distinguishes them individ­
ually in the same way as the addressee. 
Where, under Regulation No 4064/89 
on the control of concentrations 
between undertakings, a third-party 
undertaking would, in its capacity as 
the main competitor of the parties to 
the concentration the position of which 
was taken into account by the Com­
mission in the administrative procedure 
conducted by it and on account of its 
active participation in that procedure, 
have been regarded as individually 
concerned by a decision of the Com­
mission declaring the concentration 
compatible with the common market, 
it must also be regarded as being so 
affected by the decision to refer the 
examination of the concentration to 
the competent authorities of a Member 
State, since that decision deprives it of 
the opportunity to challenge before the 
Community Courts assessments which 
it would have been entitled to challenge 
had the referral not been made. 
(see paras 291-292, 297) 
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ROYAL PHILIPS ELECTRONICS v COMMISSION 
8. For a concentration to be the subject of 
a referral on the basis of Article 9(2)(a) 
of Regulation No 4064/89, that provi­
sion requires two cumulative con­
ditions to be satisfied. First, the con­
centration must threaten to create or 
strengthen a dominant position as a 
result of which effective competition 
will be significantly impeded on a 
market within that Member State. 
Second, that market must present all 
the characteristics of a distinct market. 
Those conditions are matters of law 
and must be interpreted on the basis of 
objective factors. For that reason, the 
Community judicature must, having 
regard both to the specific features of 
the case before it and the technical or 
complex nature of the Commission's 
assessments, carry out a comprehensive 
review as to whether a concentration 
falls within the scope of Article 9(2)(a) 
of Regulation No 4064/89. 
(see paras 326-327) 
9. Although the Commission has broad 
discretion as regards the decision 
whether or not to refer the examination 
of a concentration to the competent 
national authorities of a Member State 
under the first subparagraph of 
Article 9(3) of Regulation No 4064/89, 
that discretion is not unlimited. The 
Commission cannot decide to make 
such a referral if, when the Member 
State's request for a referral is exam­
ined, it is clear, on the basis of a body 
of precise and coherent evidence, that 
such a referral cannot safeguard or 
restore effective competition on the 
relevant markets. 
Review of that question by the Com­
munity Courts is a limited review 
which, in the light of Article 9(3) and 
(8) of Regulation No 4064/89, must be 
restricted to establishing whether the 
Commission was entitled, without 
committing a manifest error of assess­
ment when it adopted the decision, to 
consider that the referral to the 
national competition authorities would 
enable them to safeguard or restore 
effective competition on the relevant 
market so that it was unnecessary to 
deal with the case itself. 
(see paras 342-344, 346) 
10. The Commission is entitled to consider 
that the referral of the examination of a 
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SUMMARY — CASE T-119/02 
concentration to the competent 
national authorities of a Member State 
under Article 9(3) of Regulation 
No 4064/89 will safeguard or restore 
effective competition on the relevant 
markets if the Member State concerned 
has specific laws on the control of 
concentrations and specialised bodies 
to ensure that those laws are imple­
mented under the supervision of the 
national courts and if, in their request 
for a referral, the national authorities 
identified the precise competition prob­
lems raised by the concentration on the 
relevant markets. 
Although the referral conditions laid 
down in Article 9(2)(a) and (b) of 
Regulation No 4064/89 are to be 
interpreted restrictively so that referrals 
to national authorities of concen­
trations with a Community dimension 
are limited to exceptional cases, the 
risk that concentrations with a Com­
munity dimension will, in a large 
number of cases, be subject to a frag­
mented assessment undermining the 
'one-stop-shop' principle cannot invali­
date such a referral decision. That risk 
is inherent in the referral procedure 
currently provided for in Regulation 
No 4064/89. It is not for the Court, 
even in the course of its review of the 
Commission's exercise of its discretion 
under the first subparagraph of 
Article 9(3) of Regulation No 4064/89, 
to act in place of the legislator in order 
to fill any loopholes in the referral 
system established by Article 9 of that 
regulation. 
(see paras 347-349, 354-356) 
11. The national authorities to which the 
Commission has referred the decision 
on the compatibility of a concentration 
with the common market must comply 
with the obligations imposed by 
Article 9 of Regulation No 4064/89 
and, pursuant to Article 10 EC, take all 
appropriate measures to ensure fulfil­
ment of the obligations arising out of 
the Treaty or resulting from action 
taken by the institutions and abstain 
from any measure which might jeop­
ardise the attainment of the objectives 
of the Treaty. Provided they comply 
with those obligations, they are free to 
rule on the substance of the concen­
tration referred to them on the basis of 
a proper examination conducted in 
accordance with national competition 
law. 
(see paras 369-371) 
12. When adopting a referral decision 
under Article 9 of Regulation 
No 4064/89, the Commission is not 
obliged, with a view to avoiding the 
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ROYAL PHILIPS ELECTRONICS v COMMISSION 
adoption of contradictory decisions, to 
consult the national competition auth­
orities beforehand or to initiate Phase II 
with respect to those aspects of the 
concentration which are not the subject 
of the referral decision solely in order 
to maintain the possibility of cooper­
ation with the national competition 
authorities. The referral decision ter­
minates the procedure applying Regu­
lation No 4064/89 to those aspects of 
the concentration which are the subject 
of the referral and transfers exclusive 
competence to assess those aspects to 
the national competition authorities 
ruling on the basis of their national 
law, with the result that the Commis­
sion loses any power to deal with those 
aspects. It cannot therefore be per­
mitted to intervene in the decision­
making process of the national compe­
tition authorities, even if it decides to 
initiate the Phase II procedure with 
respect to those aspects of the concen­
tration which are not the subject of the 
referral decision. 
Therefore, when examining the con­
ditions for referral under Article 9(2)(a) 
of Regulation No 4064/89, the Com­
mission cannot, without depriving 
point (b) of the first subparagraph of 
Article 9(3) of that regulation of its 
substance, conduct an examination of 
the compatibility of the concentration 
in such a way as to bind the national 
authorities in regard to their substan­
tive findings but must merely establish 
whether, prima facie, on the basis of 
the evidence available to it at the time 
when it assesses the merits of the 
request for referral, the concentration 
whose referral is requested threatens to 
create or strengthen a dominant pos­
ition on the relevant markets. The risk 
that the decision of the national auth­
orities will be inconsistent, or even 
irreconcilable, with the decision 
adopted by the Commission is inherent 
in the referral system established by 
Article 9 of Regulation No 4064/89. 
(sec paras 372-373, 377, 381) 
13. In order to comply with the obligation 
to state reasons laid clown in 
Article 253 EC, a decision to refer the 
examination of a concentration to the 
competent national authorities of a 
Member State which has been adopted 
under Article 9(2)(a) of Regulation 
No 4064/89 must contain a sufficient 
and relevant indication of the factors 
taken into consideration in establishing 
that there is a threat of the creation or 
strengthening of a dominant position 
as a result of which effective compe­
tition would be significantly impeded 
on a market within the Member State 
concerned, and that there is a distinct 
market. 
(see para. 395) 
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