JUDGMENT OF THE GENERAL COURT (Second Chamber)
18 May 2022 (*)
(Competition – Concentrations – Market for rolled products and pre-rolled strip made of copper and copper alloys – Decision declaring the concentration incompatible with the internal market and the EEA Agreement – Commitments – Relevant market – Assessment of the horizontal and vertical effects of the transaction on competition – Manifest error of assessment – Principle of good administration – Rights of the defence)
In Case T‑251/19,
Wieland-Werke AG, established in Ulm (Germany), represented by U. Soltész, C. von Köckritz and K. Winkelmann, lawyers,
applicant,
v
European Commission, represented by P. Berghe, A. Cleenewerck de Crayencour, M. Farley and F. Jimeno Fernández, acting as Agents,
defendant,
APPLICATION under Article 263 TFEU seeking annulment of Commission Decision C(2019) 922 final of 5 February 2019 declaring a concentration to be incompatible with the internal market and the EEA Agreement (Case M.8900 – Wieland/Aurubis Rolled Products/Schwermetall),
THE GENERAL COURT (Second Chamber),
composed of V. Tomljenović, President, F. Schalin and P. Škvařilová-Pelzl (Rapporteur), Judges,
Registrar: E. Coulon,
gives the following
Judgment
I.      Background to the dispute
A.      Parties to the concentration and products at issue
1        The applicant, Wieland-Werke AG, is a German company which manufactures and supplies semi-finished products made of copper and copper alloys. In the production chain for copper products, the applicant’s activity ranges from casting shapes to selling semi-finished products. It manufactures rolled products made of copper and copper alloys (‘rolled products’) in Germany, the United Kingdom, the United States and Singapore.
2        Aurubis AG is a German company, with a worldwide reach, active in the production, sale and distribution of non-ferrous metals (including copper), and is the largest integrated copper producer in the European Union.
3        Aurubis Flat Rolled Products (‘ARP’) is a company controlled by Aurubis, which manufactures and sells semi-finished rolled products worldwide.
4        Schwermetall Halbzeugwerk GmbH & Co. KG (‘Schwermetall’) is a German company, held in equal parts (50%) by the applicant and Aurubis. That joint venture, based in Germany, manufactures, in addition to rolled products, pre-rolled strip made of copper and copper alloys (‘pre-rolled strip’), which it sells to the applicant, ARP and other manufacturers of rolled products. Schwermetall is thus responsible for over 60% of European pre-rolled strip sales.
5        Rolled products are used as an input for the manufacturing of many products, including in the electrical engineering or electronics industries. They are used, for example, for the production of electrical connectors used in cars, trains and aircraft.
6        Pre-rolled strip is an essential input in the manufacturing of rolled products.
B.      Administrative proceedings
7        On 13 June 2018, the applicant notified a proposed concentration to the European Commission pursuant to Article 4 of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (OJ 2004 L 24, p. 1), relating to the applicant’s acquisition of ARP and of Aurubis’ 50% stake in Schwermetall (‘the concentration at issue’).
8        By decision of 1 August 2018 (‘the decision to initiate in-depth investigation proceedings’), the Commission found that the concentration at issue raised serious doubts as to its compatibility with the internal market and the Agreement on the European Economic Area (EEA), which the first commitments that the applicant had proposed to it, on 11 July 2018 (‘the first proposed commitments’), were not sufficient to eliminate, and decided to initiate, in accordance with Article 6(1)(c) of Regulation No 139/2004, in-depth investigation proceedings.
9        In the context of those proceedings, the applicant proposed new commitments to the Commission, on 17 October 2018 (‘the second proposed commitments’). After the applicant had been issued with the statement of objections, in accordance with Article 18 of Regulation No 139/2004, on 24 October 2018, in which the Commission had rejected the second proposed commitments, and the oral hearing had been held on 19 November 2018, the applicant submitted to the Commission, on 3 December 2018, a third proposal for commitments (‘the third proposed commitments’), in respect of which the Commission launched a market test. The results of that test were negative.
10      On 11 December 2018, the Commission adopted Decision C(2018) 8497 final declaring a concentration to be compatible with the internal market and the EEA Agreement (Case M.8909 – KME/MKM) (‘the KME/MKM decision’), by which it authorised, unconditionally, a concentration, notified on 4 June 2018, between KME AG and MKM Mansfelder Kupfer und Messing GmbH (‘MKM’), respectively the third and fourth largest suppliers of rolled products in the European Economic Area (EEA), on the ground that that concentration concerned primarily the part of the market for rolled products with low added value, where KME and MKM would continue to face effective competition.
C.      Contested decision
11      On 5 February 2019, the Commission adopted Decision C(2019) 922 final declaring a concentration to be incompatible with the internal market and the EEA Agreement (Case M.8900 – Wieland/[ARP]/Schwermetall) (‘the contested decision’). In the confidential version of the contested decision, recital number 375 follows on from recital number 377, missing out number 376, meaning that, in that version, the recitals are numbered using the number following on from that shown in the public version of the same decision. In the present judgment, reference is made solely to the numbering of the recitals as they appear in the confidential version of the contested decision.
12      In the contested decision, as regards the relevant markets in respect of the concentration at issue, the Commission found that those markets consisted of the market or markets for copper shapes (billets and cakes), the market for pre-rolled strip and the market for rolled products, encompassing different segments, and that those markets were all at least EEA-wide.
13      As regards the competition analysis of the concentration at issue, first, the Commission found that the two parallel acquisition transactions constituting that concentration would lead to very large combined market shares, both in terms of production volumes and turnover, and to a high degree of concentration on the market for rolled products (Section 6.2 of the contested decision).
14      It also found that, on account of the applicant combining its activities with those of ARP and Schwermetall, the concentration at issue would eliminate competition between two important and close competitors on the market for rolled products, in particular in that market’s ‘high-end’ segment, where the applicant already enjoyed significant market power (Section 6.3 of the contested decision).
15      Furthermore, the Commission took the view that, following the concentration at issue, the reaction of other competitors on the market for rolled products could not defeat a likely price increase, in particular in that market’s ‘high-end’ segment, where few other competitors would remain, while the barriers to entry and repositioning in that segment would be significant and production capacities limited (Section 6.4 of the contested decision). In addition, it found that industrial customers would not have sufficient possibilities to switch suppliers on the market for rolled products, in particular in its ‘high-end’ segment, since that market is highly differentiated and specialised and the suppliers need to follow the qualification processes of industrial customers, which pursue multi-sourcing strategies that further aggravate the situation (Section 6.5 of the contested decision).
16      Moreover, the Commission found that some of the applicant’s internal documents and the results of the market investigation carried out in the context of the administrative proceedings indicated that the concentration at issue would be likely to lead to price increases on the market for rolled products (Section 6.6 of the contested decision). Thus, it concluded that the horizontal effects of that concentration would be likely to result in a significant impediment to effective competition on the market for rolled products and in the creation of a dominant position for the applicant on that market (Sections 6.6 and 6.7 of the contested decision).
17      Second, the Commission found that the applicant’s acquisition of Aurubis’ 50% stake in Schwermetall, meaning a change from joint control by Aurubis and the applicant to sole control by the applicant over Schwermetall, would produce vertical effects that would reinforce and deepen the significant impediment to effective competition on the market for rolled products already caused by the horizontal effects of the concentration at issue, since that acquisition would allow the applicant to access sensitive information about Schwermetall’s customers on the merchant market for pre-rolled strip and to hinder development or raise costs for those customers, which were also its competitors on the downstream market for rolled products, without any resulting efficiency gain (Section 6.9 of the contested decision).
18      By contrast, the Commission found that the concentration at issue would not impede effective competition on the market for copper shapes, namely the market for billets and cakes (Section 6.10 of the contested decision).
19      Lastly, the Commission stated that the third proposed commitments, like, before them, the second proposed commitments, did not allow for a comprehensive response to all the competition concerns raised, in so far as they would not eliminate the significant impediment to effective competition identified on the market for rolled products on account of the elimination of the important competitive constraints exerted on the applicant by ARP or the creation of a dominant position for the applicant on that market (Section 7 of the contested decision).
20      The Commission thus concluded that the concentration at issue had to be declared incompatible with the internal market and with the EEA Agreement, pursuant to Article 8(3) of Regulation No 139/2004 and Article 57 of that agreement.
21      Article 1 of the contested decision thus states that ‘the notified concentration whereby [the applicant] acquires control of the whole of [ARP’s] business and the whole of [Schwermetall] within the meaning of Article 3(1)(b) of [Regulation No 139/2004] is hereby declared incompatible with the internal market and with the [EEA Agreement]’.
D.      Procedure and forms of order sought
22      By application lodged at the Registry of the General Court on 15 April 2019, the applicant brought the present action.
23      The present case was allocated to the First Chamber.
24      As a result of the partial renewal of the General Court, the present case was allocated to a new Judge-Rapporteur, sitting in the Second Chamber.
25      The General Court (Second Chamber) decided, pursuant to Article 106(3) of its Rules of Procedure, to rule on the action without an oral part of the procedure.
26      The applicant claims that the Court should:
–        annul the contested decision;
–        order the Commission to pay the costs.
27      The Commission contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
II.    Law
28      In support of the present action, the applicant raises 11 pleas in law.
29      In the present case, the Court considers it appropriate to begin by examining the second plea in law.
A.      The second plea in law, alleging a flawed and manifestly erroneous assessment of the facts concerning the identification of the relevant market as highly differentiated and characterised by different segments
30      By the second plea in law, the applicant claims that, in the contested decision, the Commission carried out its competition analysis not as regards the relevant market, namely the overall market for rolled products, but as regards a market for rolled products that is highly differentiated and characterised by different segments, which were identified by means of a flawed and manifestly erroneous assessment of the facts.
31      The second plea is divided into two parts.
1.      The first part of the second plea in law
32      By the first part of the second plea, the applicant argues, in essence, that the Commission failed to comply with its obligation, in accordance with the case-law, to provide a proper and precise definition of the relevant market, by having engaged, in the contested decision, in a blurry and arbitrary segmentation of that market which, as the Commission acknowledged in paragraphs 26 and 31 of the defence, cannot be segmented in a precise manner. According to the applicant, the segmentation carried out by the Commission, based on a distinction between ‘high-end’ and ‘commoditised’ alloys, is not in line with objective reality.
33      The Commission disputes the applicant’s arguments and contends that the first part of the second plea should be rejected as unfounded.
34      According to settled case-law, a proper definition of the relevant market is a necessary precondition for the assessment of the effects on competition of the notified concentration, as amended by any proposed commitments, pursuant to Article 2 of Regulation No 139/2004 (see, to that effect, judgment of 23 May 2019, KPN v Commission, T‑370/17, EU:T:2019:354, paragraph 57 and the case-law cited).
35      In the present case, in recital 108 of the contested decision, the Commission found that ‘an overall market for rolled products [existed]’ but that, ‘due to the different characteristics of the input material and the different parameters in the manufacture of rolled products, as well as the different requirements in various end applications, [that] market [was] highly differentiated and [consisted] of multiple segments, which [exhibited] different levels and intensities of competition and potential competitive pressure’.
36      The applicant does not dispute that the relevant market is the overall market for rolled products, but criticises, in essence, the Commission for having found that that market was highly differentiated and driven by different competitive dynamics, depending on whether the rolled products concerned belonged to the ‘high-end’ segment or the ‘low-end’ or ‘commoditised’ segment of that market, without having precisely delineated those segments.
37      First of all, it should be noted that, in order to define the relevant market, the Commission followed the standard methodology set out in the Notice on the definition of relevant market for the purposes of [EU] competition law (OJ 1997 C 372, p. 5; ‘the Notice on the definition of relevant market’), which requires a consideration of demand-side substitutability and, as the case may be, supply-side substitutability, where its effects are equivalent to those of demand-side substitution in terms of effectiveness and immediacy. It is the implementation of that methodology that, in Section 5.2.4.3 of the contested decision, led the Commission to find, in the light of the results of the market investigation, that, first, demand-side substitution was limited by the specific requirements of industrial customers and, second, supply-side substitution was not perfect, in so far as the ability of competitors to manufacture the rolled products required by the industrial customers depended not only on the technology (machines) they had, but also on their know-how and their capability to be qualified or certified by the industrial customers for certain end applications. In particular, only a limited number of undertakings on the relevant market were in a position to supply ‘high-end’ rolled products.
38      In that regard, the Commission cannot be criticised for having, in the contested decision, followed the methodology laid down in its own notice, the merits of which the applicant has moreover not called into question in the present case. The Commission cannot depart from rules which it has imposed on itself (see judgment of 28 June 2005, Dansk Rørindustri and Others v Commission, C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraphs 209, 211 and 213 and the case-law cited). Thus, to the extent that the Notice on the definition of relevant market lays down, in mandatory terms, the method by which the Commission intends to define markets in the future and does not retain any margin of assessment, the Commission must indeed take account of the provisions of that notice (judgment of 14 December 2005, General Electric v Commission, T‑210/01, EU:T:2005:456, paragraph 516).
39      Next, in so far as the applicant criticises, in essence, the Commission
for having referred, in the context of applying that methodology, to a distinction between ‘high-end’ rolled products and ‘low-end’ or ‘commoditised’ rolled products that is blurry, arbitrary and not in line with objective reality, it must be stated, first of all, that the applicant does not dispute that rolled products are not homogeneous products but that they are products which are differentiated according to a great number of criteria (composition, level of finishing, end applications, etc.). Each of those criteria allows the overall market for rolled products to be segmented, without any of them being, a priori, paramount or allowing separate product markets to be identified.
40      Moreover, it must be borne in mind that, in the context of differentiated product markets, the existence of an overall market does not affect the possibility of identifying different competitive dynamics in some market segments. Only such a segmentation, which seeks to account for the different competitive dynamics actually at play on the market, is able to respond to the main objective of defining the relevant market for the purposes of EU competition law, in both its product and geographic dimension, which, as stated in paragraph 2 of the Notice on the definition of relevant market, is to identify in a systematic way the competitive constraints that the undertakings concerned face and to determine those actual competitors capable of constraining those undertakings’ behaviour and of preventing them from behaving independently of effective competitive pressure. It is thus the proper definition of the relevant market, in both its product and geographic dimension, that allows for the effects on competition of the notified concentration to be evaluated in the most rational way possible (see, to that effect, as regards the geographic market, judgment of 31 March 1998, France and Others v Commission, C‑68/94 and C‑30/95, EU:C:1998:148, paragraph 143 and the case-law cited). The Commission must thus take account of the overall economic context so as to make it possible to assess the actual economic power of the undertakings in question (see judgment of 6 June 2002, Airtours v Commission, T‑342/99, EU:T:2002:146, paragraph 20 and the case-law cited) and the market power of the new entity that will result from the concentration transaction.
41      In the contested decision, the Commission stated precisely that different competitive dynamics were at play, on the overall market for rolled products, between ‘high-end’ rolled products and ‘low-end’ or ‘commoditised’ rolled products. Such a segmentation of the relevant product market was relevant and sufficient, even in the absence of a more precise segment delineation, since it allowed for an evaluation, in the most rational way possible, of the actual market power of the new entity that would result from the concentration at issue. In engaging in such a segmentation, the Commission nevertheless did not go so far as finding that there were two separate sub-markets within the overall market for rolled products, which, moreover, is not an allegation that the applicant makes vis-à-vis the Commission in the context of the present action.
42      Lastly, the Commission established, with examples in support, in particular in recitals 117, 124, 125, 133, 270, 274, 279, 282, 286, 287, 458 and 459 of the contested decision, that the parties to the concentration at issue themselves distinguished, in the ordinary course of their business, between ‘high-end’ rolled products and ‘low-end’ or ‘commoditised’ rolled products and identified certain types of rolled products as belonging to the ‘high-end’ segment of the relevant market, such as rolled products for connectors made of high performance alloys (‘HPAs’) or by hot-dip tinning (‘HDT’) and dual gauge strip, which confirms the relevance of such a segmentation in order to understand the competitive dynamics at play on the relevant market.
43      In the light of the foregoing considerations, it cannot be held that the Commission engaged, in the contested decision, in a blurry and arbitrary segmentation of the relevant market and thereby failed to fulfil its obligation to define that market properly.
44      Consequently, the first part of the second plea in law must be rejected.
2.      The second part of the second plea in law
45      By the second part of the second plea, the applicant submits that the segmentation of the relevant market, carried out by the Commission in the contested decision, was based on insufficient evidence, on account of the fact that manufacturers of equipment for the production of rolled products were not consulted, and on an incorrect assessment of competitors’ technical capabilities. The applicant does not dispute either the existence or the content of the competitors’ responses to the market investigation referred to in recital 115 of the contested decision, the statement of an industrial customer cited in recital 116 of that decision and the internal document described in recital 117 of that decision, on which the Commission based its assessments, but criticises, in essence, the Commission for failing to reach the conclusion that, on the whole, all competitors could meet, in one way or another, all the requirements of the industrial customers, with the result that it was not appropriate to distinguish between ‘high-end’ and ‘low-end’ or ‘commoditised’ segments so as properly to assess the effects of the concentration at issue on competition on the relevant market.
46      The Commission disputes the applicant’s arguments and claims that the second part of the second plea should be rejected as unfounded.
47      In that regard, it should be borne in mind that, in the context of the merger control procedure, the Commission must carry out an autonomous assessment and while, in that context, the opinion of market participants constitutes an important source of information, it cannot bind it, especially since it is generally not uniform. Thus, the mere fact that the Commission does not endorse the opinion expressed by certain market participants does not mean that it failed to take that feedback into account in the context of its assessment (see, to that effect, judgment of 5 October 2020, HeidelbergCement and Schwenk Zement v Commission, T‑380/17, EU:T:2020:471, paragraph 673
(not published) and the case-law cited)).
48      In the present case, it is apparent from recitals 115 to 119 of the contested decision that, in order to substantiate the distinction between ‘high-end’ or ‘specialised’ and ‘low-end’ or ‘commoditised’ rolled products, the Commission referred to testimonies of suppliers of rolled products or industrial customers which were directly faced with the technical difficulties that they described and which would have had no interest in providing the Commission, on that particular subject, with incorrect information so that it would not capture, in its decision, the distinction between the abovementioned products. Moreover, the Commission relied on an internal document of the applicant, drawn up in the ordinary course of its business and running counter to what it asserts for the purpose of defending its interests in the context of the present action. All the elements of that document confirmed that there was a distinction between ‘high-end’ or ‘specialised’ rolled products and ‘low-end’ or ‘commoditised’ rolled products. It must therefore be stated that the Commission based its assessment as to whether there was such a distinction on a set of reliable, substantiated, consistent, relevant and sufficient items of evidence.
49      In that regard, in so far as the applicant claims, in essence, that the Commission based its segmentation of the relevant market on a distinction between rolled products depending on type of alloys or copper levels or type of end uses, it is sufficient to recall that the segmentation carried out by the Commission in the contested decision was based, first and foremost, on a variable combination of several criteria enabling the identification of specialised rolled products, the manufacturing of which required specific equipment and know-how and the conversion price and, therefore, the added value of which were higher. Certain rolled products made of certain types of copper or copper alloys or suitable for certain end uses could, pursuant to those criteria, belong to the segment for ‘high-end’ rolled products, without it being possible, however, to infer from that that the segmentation was itself based on the different compositions of the rolled products at issue or on their different end uses. Therefore, it is irrelevant that the same alloy can, as the case may be, be part of the composition of a ‘high-end’ rolled product or a ‘low-end’ or ‘commoditised’ rolled product or that the same end use can be served by a ‘high-end’ rolled product or a ‘low-end’ or ‘commoditised’ rolled product, because none of those criteria is decisive, in itself, for the purpose of classifying rolled products in the categories ‘high-end’ or ‘low-end’ or ‘commoditised’.
50      In so far as the applicant objects that the industrial customers do not always have specific requirements and that many competitors produce, in essence, commoditised rolled products, it should be noted that that objection is not such as to call into question the segmentation of the relevant market applied in the present case by the Commission, since that segmentation explains, according to the Commission, the specific competitive dynamics at play in the ‘low-end’ or ‘commoditised’ segment of the relevant market, as is apparent from recital 115 of the contested decision. It does not contradict the existence of another segment, that for ‘high-end’ rolled products, in which the industrial customers have specific requirements and which is accessible only to a small number of competitors. Moreover, as the Commission correctly states, the strategies developed by certain operators on the relevant market, such as the applicant, consisting in abandoning the production of certain types of rolled products, described as ‘commoditised’ or ‘low-end’, in order to focus on the production of other products, described as ‘high-end’, demonstrate the relevance of the segmentation applied by the Commission in order to take account of the different competitive dynamics at play on the relevant market.
51      In so far as the applicant claims, in essence, that the Commission failed to take account of the fact that both ‘low-end’ or ‘commoditised’ rolled products and ‘high-end’ rolled products could be manufactured, subject to some quick adjustments, using ordinary equipment and that it failed to consult the equipment manufacturers in that regard, it should be observed that the limited capacity of many competitors to produce all types of rolled products was dependent, according to the Commission, not only on the equipment at their disposal but also on their level of know-how and technical capability. Therefore, the fact that the same equipment might serve to manufacture a wide range of rolled products is not sufficient for a finding that the competitors that have it at their disposal are capable of manufacturing rolled products of all types and quality meeting all of the industrial customers’ requirements and, in particular, ‘high-end’ rolled products. Equally, the fact that certain competitors, such as the applicant or Alfred Wertli AG, were able to manufacture different types of rolled products, be they ‘high-end’ or ‘low-end’ or ‘commoditised’, with their equipment, does not support the conclusion that they all had the capability to produce all types of rolled products with their equipment.
52      In that context, the opinion of competitors about their technical capabilities to produce all types of rolled products and that of their industrial customers on the same subject constituted information that is more direct and reliable than the information which might have been inferred from the opinion of equipment manufacturers on the use that their customers might make of their machines. Those customers were better able to evaluate their own technical limitations.
53      In addition, the fact that there are options to subcontract or outsource certain operations in the rolled product production process does not suffice to call into question the merits of the Commission’s assessment, since, when the competitors or the industrial customers expressed their opinion, they did so in full knowledge of the relevant market and therefore by taking account also of the solutions of subcontracting and outsourcing certain operations which were available on that market.
54      Furthermore, in so far as the applicant argues that the Commission erred in law and contradicted itself as regards the data in Tables 4 and 5 set out in recital 277 of the contested decision, in referring to the statement of an industrial customer according to which only the applicant, ARP and KME manufactured rolled products for the high-technology connector sector, it must be stated, first, that the Commission merely cited that statement, in recital 116 of the contested decision, in order to illustrate its assessment, based on the market investigation, that the more specialised a rolled product is, the fewer its suppliers. Second, the information in recital 277 of the contested decision and in Tables 4 and 5 set out therein is not necessarily inconsistent with the industrial customer’s statement cited by the Commission. In that recital, the Commission stated that rolled products made of HPAs were generally products with high added value and that rolled products made of bronze were important for the connector industry and belonged, to that extent, to the segment for ‘high-end’ rolled products. However, it did not state that rolled products made of HPAs and of bronze were all intended for the connector industry and, in particular, for high-technology connectors. Thus, while Tables 4 and 5 showed volumes sold (in tonnes) and market shares in the EEA, between 2015 and 2017, of undertakings supplying rolled products made of HPAs and of bronze and referred, in that regard, to undertakings other than the applicant, namely ARP and KME, it did not necessarily follow from that that those undertakings supplied rolled products for high-technology connectors. The applicant’s arguments are therefore not sufficient for a finding, in that regard, that the contested decision is vitiated by an error or inconsistency.
55      Lastly, in so far as the applicant criticises the Commission for taking account of supply-side substitutability and finding that it was unidirectional and not perfect, it should be borne in mind that, as was stated in paragraph 37 above, that taking into account was consistent with the standard methodology set out in the Notice on the definition of relevant market, which the applicant has not disputed as such. For the reasons set out in paragraph 38 above, the Commission was required to follow that methodology in the present case. In addition, the Commission provided the specific reasons that led it, pursuant to that methodology, to the conclusion that supply-side substitutability, on the relevant market, was unidirectional and not perfect, and the examination of the present action is not such as to call those reasons into question. Therefore, it is not necessary to call into question the Commission’s assessments in that regard.
56      Consequently, the second part of the second plea must be rejected and, accordingly, the second plea in law must be rejected in its entirety.
B.      The first plea in law, alleging manifest errors of assessment and of law, and a breach of the principle of legal certainty, concerning the market to be taken into account for the purposes of the competition analysis of the concentration at issue and the proposed commitments
57      By the first plea in law, divided into two parts, the first alleging manifest errors of assessment and the second an error of law in the application of Article 2 of Regulation No 139/2004, the applicant, in essence, criticises the Commission as regards a manifest inconsistency consisting in it having, on the one hand, and, in the applicant’s view, correctly, in Section 5 of the contested decision, defined the relevant market as the overall market for rolled products, and, on the other hand, and, in the applicant’s view, incorrectly, in Sections 6 and 7 of that decision, focused its market investigation and its competition analysis of the concentration at issue and the proposed commitments on particular segments of that market, defined in an artificial and subjective manner, such as the alleged segment for ‘high-end’ rolled products, or on market sub-segments defined by type of copper or copper alloys, industrial sectors or product application fields. According to the applicant, the competition analysis of the concentration at issue and the proposed commitments, carried out by the Commission, was highly flawed as a result of that inconsistency. Furthermore, the segmentation of the relevant market by type of copper and copper alloys, carried out by the Commission, was unworkable because, as is apparent from the annex to the contested decision, there are hundreds of copper alloys. Moreover, such a segmentation was abandoned in the statement of objections. Furthermore, the assessments based, in the contested decision, on the concept of ‘complex and differentiated market’ were not substantiated by any citation from case-law or past decisions or by any evidence. Those assessments go against the principle of legal certainty.
58      The Commission disputes the applicant’s arguments and contends that the first plea should be rejected. According to it, the complaint alleging breach of the principle of legal certainty is inadmissible, as it is not sufficiently precise having regard to the case-law. As regards the complaint alleging manifest errors of assessment and of law as regards the market to be taken into account in its analyses, the Commission states it is unfounded.
59      As regards the plea of inadmissibility raised by the Commission, in the defence, against the complaint alleging breach of the principle of legal certainty, which the applicant has not specifically addressed in the reply, it should be borne in mind that, under Article 21 of the Statute of the Court of Justice of the European Union and Article 76(d) of the Rules of Procedure of the General Court, the application initiating proceedings must contain a brief statement of the pleas in law on which the application is based. That statement must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the action, if necessary without any other supporting information. The application must, accordingly, specify the nature of the grounds on which it is based, with the result that a mere abstract statement of the grounds does not satisfy the requirements of the Rules of Procedure (see judgment of 12 March 2020, Elche Club de Fútbol v Commission, T‑901/16, EU:T:2020:97, paragraph 79 and the case-law cited). Similar requirements are called for where a submission is made in support of a plea in law (judgment of 14 May 1998, Mo och Domsjö v Commission, T‑352/94, EU:T:1998:103, paragraph 333).
60      In the present case, in the application, the applicant has not specified the nature of the breach of the principle of legal certainty on which it relies. Accordingly, and as the Commission correctly submits, that complaint must be rejected as inadmissible.
61      As regards the substance of both parts of the first plea, that plea claims, in essence, that there is an internal inconsistency in the contested decision concerning the market to be taken into account in order to assess the effects on competition of the concentration at issue, as amended by the proposed commitments.
62      In that regard, it should be noted that the Commission cannot, without vitiating its decision by inconsistency, assess the effects on competition of a concentration that was notified to it, as amended by any proposed commitments, on a market that is different from the one previously defined as being the relevant market. The internal inconsistency of certain assessments set out in the contested decision can reveal a manifest error of assessment vitiating that decision (see, to that effect, judgment of 6 June 2002, Airtours v Commission, T‑342/99, EU:T:2002:146, paragraphs 105 to 108).
63      Furthermore, such an inconsistency can also reveal an infringement of Article 2 of Regulation No 139/2004, since the proper definition of the relevant market is a necessary precondition for applying that article (see paragraph 34 above).
64      Nevertheless, a distinction should be drawn between the definition of the relevant market, namely the market on which the notified concentration occurs and which might therefore be affected by it, and the assessment of the effects of that concentration on competition on that market. The competition analysis of the notified concentration can lead to a finding that that concentration does not impede competition equally on all parts of the relevant market, without that affecting or calling into question the very definition of that market (see, to that effect and by analogy, as regards the distinction between the geographic market that might be affected and the market on which the transaction would give rise to a significant impediment to effective competition, judgment of 5 October 2020, HeidelbergCement and Schwenk Zement v Commission, T‑380/17, EU:T:2020:471, paragraphs 309, 310, 347 and 366 (not published)). It follows that the mere finding that a significant impediment to effective competition has a bigger and more direct impact on a part of the relevant product or geographic market is without prejudice to that impediment occurring and being found to exist on that market, in so far as the part of that market on which the impact is bigger and more direct cannot be separated from the rest of that market.
65      In the present case, in recital 136 of the contested decision, the Commission found, as regards the relevant product market, the following:
‘In conclusion, in the light of the considerations in recitals (107) to (135) [of the contested decision] and taking account of the results of the market investigation and of all the evidence available to it, the Commission concludes that there is an overall rolled products market, covering a wide spectrum where more commoditised products are located at the lower-end of the spectrum and more specialised products at a higher-end of the spectrum. The high degree of differentiation in terms of product performance, know-how and technology, specifications of customers, intensity of competition and pricing, however, results in the existence of different segments within the overall market [for rolled products], that exhibit different levels and intensities of competition. The Commission will accordingly conduct its competitive assessment both at the overall rolled products market level and at segment level in the high-end part of the market – which constitutes the principal overlap between the … activities [of the parties to the concentration at issue] in the rolled products market – such as high-end connector strip, HPAs strip and HDT strip.’
66      As the Commission correctly submits, it had previously defined the relevant market as being the overall market for rolled products, highly differentiated and characterised by the existence of different segments driven by specific competitive dynamics, such as the segment for ‘high-end’ rolled products, with the result that, as stated in recital 214 of the contested decision, its competition analysis of the concentration at issue and the proposed commitments had, in order better to assess and capture the closeness of competition between the parties to the concentration at issue and the competitive pressure exerted on them by the other market participants, to be carried out not only at the level of that market, but also of those segments, in which different competitive dynamics were at play. In particular, the Commission found, in recitals 427, 576, 577, 650 and 794 of the contested decision, that the segment for ‘high-end’ rolled products differed from other parts of the relevant market as regards the intensity of competition in it. While, in the ‘low-end’ or ‘commoditised’ segment of the relevant market, there were more buyers than producers, the opposite could be observed in the segment for ‘high-end’ rolled products, characterised by its oligopolistic structure, where a small number of producers, namely, in addition to the parties to the concentration at issue, the new merged entity following the transaction between KME and MKM (‘KME/MKM’), Diehl Metal Applications (‘Diehl’) and Gebr. Kemper GmbH + Co. KG Metallwerke (‘Kemper’), were in a position of strength vis-à-vis the buyers. The taking into account of the competitive dynamics at play in the different segments was all the more important, in the present case, since those dynamics explained the economic strategies implemented by the participants on the relevant market. In particular, as the Commission stated in recitals 274, 311, 507, 509 and 538 of the contested decision, the applicant had decided to implement a ‘cream skimming’ strategy as regards the relevant market consisting in focusing on the segments of that market that had the highest growth and were the most profitable, in particular the segment for ‘high-end’ rolled products or sub-segments belonging, essentially, to that segment, where the applicant had increased market power, on account of, in particular, the oligopolistic structure of those segments, and where the activities of the parties to the concentration at issue mainly overlapped, with the result that the applicant’s market power would be further increased.
67      Since the segment for ‘high-end’ rolled products, or sub-segments belonging, essentially, to that segment, represented a part of the overall market for rolled products, the Commission cannot thus be criticised for
having, in the contested decision, committed an error of law in assessing the effects on competition of the concentration at issue, as amended by any proposed commitments, on a market that is different than the one that it had previously defined as being the relevant market.
68      Moreover, the Commission cannot be criticised for having limited its competition analysis to only that part of the relevant market. The recitals referred to by the applicant in support of its arguments must not be read in isolation, but considered in their context and, consequently, in relation to the contested decision in its entirety. As the Commission correctly states, in order to assess the effects on competition of the concentration at issue, as amended by the third proposed commitments, it referred to the prevailing competitive situation, prior to the concentration at issue, or that which would prevail, following that concentration, both on the overall market for rolled products and on certain specific segments of that market, namely the segment for ‘high-end’ rolled products or sub-segments belonging, essentially, to that segment.
69      While, on several occasions, in the contested decision, the Commission focused its analysis on certain specific segments of the relevant market, in particular the segment for ‘high-end’ rolled products or certain sub-segments belonging, essentially, to that segment, that is linked to the fact that, as it stated in recitals 136 and 316 of that decision, those segments were those which already exhibited the highest level of concentration on the relevant market, where the principal overlap between the activities of the parties to the concentration at issue was, where the competitive relationship between those parties was the closest and where, following that concentration, the applicant would focus its activities and have an even higher degree of market power than the one it already had prior to that concentration. Thus, the Commission focused on the segments of the relevant market in which, according to it, competition would be most directly and highly affected by the concentration at issue and where the significant impediment to effective competition, within the meaning of Article 2(3) of Regulation No 139/2004, resulting from that concentration, was most evident.
70      In Section 6.4 of the contested decision, the Commission assessed to what extent the increased market power that the applicant would have, following the concentration at issue, in relation to the one it already had prior to that concentration, in the segment for ‘high-end’ rolled products, would allow it to free itself from the constraints exerted by its competitors and increase its prices without fearing their reaction. Likewise, in Section 6.5 of the contested decision, it assessed to what extent, following the concentration at issue, industrial customers operating in the segment for ‘high-end’ rolled products would be able to switch suppliers so as to react to price increases orchestrated by the applicant.
71      In the present case, the fact that the Commission found that the concentration at issue would have a more significant impact on competition in certain segments of the relevant market, in particular the segment for ‘high-end’ rolled products or certain sub-segments belonging, essentially, to that segment, does not lead to the conclusion that, in so doing, it changed its definition of the relevant market, identified as being the overall, highly differentiated market for rolled products, by reducing it to only the segments or sub-segments of that market in which it considered that competition would be most directly and highly affected and where the significant impediment to effective competition resulting from that concentration would be most evident, as was apparent in particular from recital 210 of the contested decision.
72      The Commission’s finding that the significant impediment to effective competition which concerned more specifically the segment for ‘high-end’ rolled products or certain sub-segments belonging, essentially, to that segment would occur on the relevant market was in no way incorrect, since the former was an inseparable part of the latter (see paragraph 64 above); it did not mean, however, that it thus intended to extend its assessments that related specifically to those segments or sub-segments to all other parts of the relevant market, such as the segment for ‘low-end’ or ‘commoditised’ rolled products. Moreover, the applicant does not provide any examples of instances where the Commission expressly transposed assessments concerning the segment for ‘high-end’ rolled products or certain sub-segments belonging, essentially, to that segment to the segment for ‘low-end’ or ‘commoditised’ rolled products.
73      In any event, it should be noted that the weakening of competition in the segment for ‘high-end’ rolled products or in certain key sub-segments belonging, essentially, to that segment was such as to affect, in turn, competition on the relevant market as a whole, since it could facilitate the applicant in implementing a ‘cream skimming’ strategy on that market, as described in recitals 274 and 509 of the contested decision, namely a strategy consisting in the applicant focusing on the growing and most profitable segments of that market where, as stated in recitals 210, 507 and 597 of that decision, its market power was most significant and where it could most easily increase its prices, by leaving the least profitable activities on that market to its competitors, thus strengthening its overall position on that market vis-à-vis its competitors. Such a strengthening of market power on the part of the applicant, on account of the concentration at issue, was all the more problematic since, as the Commission stated also in the contested decision, the applicant was already a leader on the overall market for rolled products, even prior to that concentration.
74      In the light of all the foregoing considerations, the first plea in law must be rejected as unfounded.
C.      The third plea in law, alleging manifest errors of assessment on account of the adoption of an approach contradicting the one taken in the KME/MKM decision
75      In the context of the third plea in law, the applicant submits that there are several manifest errors of assessment on account of an approach of the Commission, in the contested decision, which, according to the applicant, is contradictory and inconsistent with the approach taken in the KME/MKM decision. The applicant proceeds from the assumption that, first, the relevant markets in the two decisions are identical, namely the overall market for rolled products, second, in the present case, the Commission applied stricter analysis criteria than in the KME/MKM decision and, third, the concentration between KME and MKM could not have been found compatible on the basis of the analyses carried out by the Commission in the contested decision.
76      The Commission disputes the applicant’s arguments and contends that the third plea should be rejected as irrelevant and, in any event, unfounded.
77      In the present case, the applicant proceeds from the assumption that, in so far as the KME/MKM decision and the contested decision concerned the relevant market, the fact that, in that latter decision, the Commission adopted a different approach and reached different conclusions from those set out in the KME/MKM decision is indicative of manifest errors of assessment vitiating the contested decision.
78      In that regard, it should be borne in mind that, when the Commission takes a decision on the compatibility of a concentration with the internal market and the EEA Agreement on the basis of a notification and a file pertaining to that transaction, an applicant is not entitled to call the Commission’s findings into question on the ground that they differ from those made previously in a different case, on the basis of a different notification and a different file, even where the markets at issue in the two cases are similar, or even identical. Thus, in so far as that applicant relies on assessments made by the Commission in a previous decision, those parts of its arguments are irrelevant (see, to that effect, judgments of 14 December 2005, General Electric v Commission, T‑210/01, EU:T:2005:456, paragraph 118, and of 13 May 2015, Niki Luftfahrt v Commission, T‑162/10, EU:T:2015:283, paragraph 142 and the case-law cited).
79      In any event, neither the Commission nor, a fortiori, the Court is bound by the findings of fact or economic assessments in a previous decision. Even supposing that the analysis in the contested decision differs from that in the previous decision without any objective justification for that difference, the Court ought to annul the contested decision in the present proceedings only if satisfied that that decision, as opposed to the previous decision, is vitiated by errors (see, to that effect, judgments of 14 December 2005, General Electric v Commission, T‑210/01, EU:T:2005:456, paragraph 120, and of 13 May 2015, Niki Luftfahrt v Commission, T‑162/10, EU:T:2015:283, paragraph 144). It is thus still for the applicant to show in what way the assessments in the contested decision are, in themselves and independently of those set out in the previous decision, incorrect.
80      In so far as, in the context of the present plea, the applicant refers to assessments of the Commission that it disputes in themselves, independently of those set out in the KME/MKM decision, in the context of the fourth, fifth, eighth and ninth pleas in the present action, their merits must be reviewed in the light of the complaints and arguments specifically expanded upon in the context of those pleas. Subject to that proviso, the third plea in law must be rejected as irrelevant.
D.      The fourth plea in law, alleging manifest errors of assessment resulting from the taking into account, for the first time in the contested decision, of a theory of harm based on a sui generis test as regards the effects of the concentration at issue, mixing horizontal and vertical effects
81      In the context of the fourth plea in law, the applicant argues, in essence, that the Commission vitiated the contested decision by manifest errors of assessment in taking into account, for the first time in that decision, a theory of harm based on a sui generis test, mixing horizontal and vertical effects.
82      The Commission disputes the applicant’s arguments and contends that all the complaints raised in the context of the fourth plea should be rejected as unfounded.
83      Primarily, the applicant claims that the Commission applied an incorrect test mixing different standards. It does not dispute the Commission’s assessment, set out in recitals 178 and 200 of the contested decision, that the two parallel transactions corresponding to its acquisition, first, of ARP, and second, of Aurubis’ 50% stake in Schwermetall were closely linked and had to be treated as a single concentration. Nor does it dispute the Commission’s assessment, set out in recital 200 of that decision, that the horizontal effects of the concentration at issue had to be assessed in accordance with the principles set out in the Guidelines on the assessment of horizontal mergers under [Regulation No 139/2004] (OJ 2004 C 31, p. 5; ‘the Guidelines on the assessment of horizontal mergers’). The applicant merely disputes, in the present case, the Commission’s assessment, set out in recitals 200 and 598 of the contested decision, that the vertical anticompetitive effects of the concentration at issue, arising solely from its acquisition of Aurubis’ 50% stake in Schwermetall, had to be assessed in accordance with the principles set out in paragraph 36 of the Guidelines on the assessment of horizontal mergers and in paragraphs 18 and 78 of the Guidelines on the assessment of non-horizontal mergers under [Regulation No 139/2004] (OJ 2008 C 265, p. 6; ‘the Guidelines on the assessment of non-horizontal mergers’), rather than having regard only to the Guidelines on the assessment of non-horizontal mergers and paragraphs 28 to 77 thereof.
84      In that regard, it should be noted that, as stated in paragraph 7 of the Guidelines on the assessment of non-horizontal mergers, in practice, mergers may entail both horizontal and non-horizontal effects, and, in such a case, the Commission appraises the various effects in accordance with the guidance set out in the relevant notices.
85      First of all, as the Commission correctly stated in recitals 183 to 186 of the contested decision, the vertical anticompetitive effects of the concentration at issue were closely linked to the horizontal anticompetitive effects thereof which they would reinforce and deepen by giving the applicant the possibility of raising the costs of an input that is essential for its competitors, namely pre-rolled strip sold by Schwermetall on the merchant market, and of accessing competitors’ confidential information as regards that input’s volumes and prices. It was also correct in stating that a reasonable assessment of the vertical anticompetitive effects of the concentration at issue involved taking into account its horizontal effects, namely the fact that, following that concentration and on account of the fact that the applicant would combine its activities with those of ARP and Schwermetall, it would have a much larger share of the relevant market than it previously did. Accordingly, the vertical anticompetitive effects of the concentration at issue had to be assessed in the light of its horizontal anticompetitive effects.
86      As regards the question of which principles or specific rules, contained in its guidance, the Commission had to have regard to so as to assess the vertical anticompetitive effects of the concentration at issue, together with the horizontal anticompetitive effects thereof, the sole criterion to take into account, in that regard, was that of their relevance in the present case.
87      As the Commission correctly stated in recital 188 of the contested decision, the principles laid down in paragraph 36 of the Guidelines on the assessment of horizontal mergers were relevant in the present case, in so far as they allowed to take account of the vertical aspects of certain proposed horizontal mergers, like the fact that the merged entity could have such a degree of control, or influence over, the supply of the inputs for the products at issue that expansion or entry by competitors on the market for those inputs could become more costly. The concentration at issue had, in addition to an important horizontal dimension, an additional vertical dimension, in giving the applicant the capacity of restricting its competitors’ ability to compete with it on the relevant market,
by raising the cost of pre-rolled strip supplied to them by Schwermetall, and the incentive to adopt that conduct.
88      In addition, the Commission also correctly stated, in recitals 189 to 191 of the contested decision, that the principles laid down in paragraphs 18 and 78 of the Guidelines on the assessment of non-horizontal mergers were relevant in the present case, in so far as they allowed it to take account of the vertical aspects of certain proposed mergers. In particular, paragraph 18 of those guidelines refers to foreclosure resulting inter alia from a merger hampering or eliminating actual or potential rivals’ access to supplies, reducing their ability to compete. The vertical effects of the concentration at issue could lead to a future ‘foreclosure’, for the smaller competitors on the relevant market, as regards access to Schwermetall’s pre-rolled strip, which was an essential input for them. As regards paragraph 78 of those guidelines, it refers to the possibility, through vertical integration, of gaining access to commercially sensitive information regarding competitors’ downstream activities, allowing the merged entity to price less aggressively in the downstream market to the detriment of consumers, or to put competitors at a competitive disadvantage, thereby dissuading them from entering or expanding in the market. The vertical effects of the concentration at issue could allow the applicant to make use to that end of the confidential information which it would have about its competitors on the relevant market as regards pre-rolled strip supplied to them by Schwermetall.
89      Lastly, the Commission also correctly found, in recitals 192 to 199 of the contested decision, that it was not relevant, in the present case, to carry out an analysis of the vertical effects of foreclosure of input access in line with the more specific rules laid down in paragraphs 28 to 77 of the Guidelines on the assessment of non-horizontal mergers, as the applicant submitted in the reply to the statement of objections.
90      As is apparent from paragraphs 12 and 13 of the Guidelines on the assessment of non-horizontal mergers, those rules are in essence designed in order to assess purely vertical mergers, which do not have parallel horizontal effects and, accordingly, do not entail the loss of direct competition between the parties to the notified concentration. That type of concentration transaction results in efficiency gains that are specific to it. In the present case, the acquisition, by the applicant, of Aurubis’ 50% stake in Schwermetall was not, in itself, a purely vertical transaction since the applicant already had, prior to that acquisition, joint control over Schwermetall which allowed it to generate the abovementioned efficiency gains, by obtaining pre-rolled strip at cost price, or even a little below that price, as the data analysed by the Commission in recital 336 of the contested decision indicated. Moreover, that acquisition had to be assessed with a view to the horizontal transaction corresponding to the acquisition of ARP.
91      For all those reasons, it must be stated that the Commission did not commit an error in examining the vertical effects of the concentration at issue in accordance with the general principles laid down in paragraph 36 of the Guidelines on the assessment of horizontal mergers and paragraphs 18 and 78 of the Guidelines on the assessment of non-horizontal mergers, rather than having regard to the specific rules laid down in paragraphs 28 to 77 of the Guidelines on the assessment of non-horizontal mergers.
92      Therefore, the primary complaint raised by the applicant must be rejected.
93      In the alternative, the applicant submits that, even supposing that the test – mixing different standards – applied by the Commission, had been correct, it was applied inconsistently in the contested decision. The applicant proceeds from the assumption that, in the contested decision, the Commission found that the third proposed commitments would have allowed to remedy to a large extent the horizontal anticompetitive effects of the concentration at issue.
94      However, the applicant’s line of argument is based, in that regard, on a misreading of the contested decision. Admittedly, in recital 804 of that decision, the Commission found that, ‘if implemented, the [third proposed] commitments … would therefore have a significant impact on the market position of the merged entity on the overall rolled copper market’. That finding nevertheless depended on the possibility of identifying an appropriate purchaser, in a position to operate in a viable and competitive manner the business which would have had to be divested in the context of the third proposed commitments. As is apparent from Section 7.3.3.2 of the contested decision, the Commission stated precisely that it had not been able to identify such a purchaser. Therefore, the applicant is not justified in claiming that, in the contested decision, the Commission found that the third proposed commitments would remedy to a large extent the horizontal anticompetitive effects of the concentration at issue and its arguments to the contrary have no factual basis.
95      Moreover, the Commission cannot be criticised, after having stated that it was not in a position to find that the third proposed commitments would remedy the horizontal anticompetitive effects of the concentration at issue, for continuing its examination by observing that nor did those commitments address the vertical anticompetitive effects of that concentration.
96      Consequently, the complaint raised by the applicant in the alternative must be rejected, and, accordingly, the fourth plea in law must be rejected in its entirety as unfounded.
E.      The fifth plea in law, alleging manifest errors in the assessment of the competitive situation prevailing on the relevant market or in the specific segments of that market
97      By the fifth plea in law, divided into three parts, the applicant argues that there are manifest errors vitiating the Commission’s assessments, in Sections 6.3 and 6.4 of the contested decision, as regards the competitive situation on the relevant market, taken as a whole, or in the alleged ‘high-end’ segment of that market or the particular sub-segments of that specific segment.
98      It is important to note that the applicant does not dispute the Commission’s assessments set out in Section 6.2 and recital 249 of the contested decision, according to which the concentration at issue would result, on the relevant market, first, in the parties to the concentration having market shares of a large, or even very large, combined volume, and, in any event, significantly larger than those held by its next competitor, namely KME/MKM, second, in those same parties having market shares of an even higher value and, third, in a high level of concentration of the relevant market, which would, taken as a whole, lead to a significant impediment to effective competition on that market.
1.      The first part of the fifth plea in law
99      By the first part of the fifth plea, the applicant argues that, in Section 6.3.1 of the contested decision, the Commission committed a manifest error of assessment by overstating the applicant’s relative competitive position, prior to the concentration at issue, describing it as a clear leader on the relevant market, in particular in the alleged ‘high-end’ segment of that market, which already enjoyed a significant degree of market power. According to the applicant, the Commission based its assessment on some of the applicant’s internal documents which were unreliable and incorrect, since they were based on rough estimates, reasonable assumptions as regards the level of its relative prices or of its profitability, or exaggerated presentations, prepared for promotional purposes, of its position or power on the relevant market. KME, MKM and Kemper also describe themselves, on their websites, as ‘market leader[s]’. The Commission also relied on vague and obviously unfounded statements of industrial customers and competitors, stating inter alia that in the alleged segment for ‘high-end’ rolled products, capacity was full, whereas the segment for ‘commoditised’ rolled products suffered from production overcapacity. The principle of good administration prohibited the Commission from selecting documents in support of its conclusions, without taking account of their intrinsic low probative value, to the detriment of other evidence in the file. The Commission should have engaged in more thorough investigations allowing it to collect empirical data and to carry out an objective analysis of the relative positions of each of the market participants in question, as required by the case-law.
100    The Commission disputes the applicant’s arguments and contends that the first part of the fifth plea should be rejected as unfounded.
101    In the present case, in order to find that, prior to the concentration at issue, the applicant was the clear leader on the relevant market, in particular in the ‘high-end’ segment of that market, and already had significant market power, the Commission relied, as stated in recitals 251 and 264 of the contested decision, on the body of evidence set out in recitals 252 to 263 of that decision.
102    First, the Commission referred to the results of the reconstruction of the relevant market, which it had carried out in order to assess the applicant’s relative market shares, in sales volume, in sales value and in production, and the relative growth rate of its sales, in volume and value (in total conversion revenues and per tonne of products sold).
103    Second, it referred to the responses of industrial customers to the market investigation, from which it was apparent that the applicant differed in particular from its competitors in its wide range of rolled products and the high quality of its products. The Commission added that the applicant was also especially capable of addressing the specific needs of industrial customers, for example for rolled products for the production of connectors for the automotive industry or for stampers, in respect of which the Commission referred, via a hyperlink, to a website in which the applicant described its MULTICOIL solution.
104    Third, the Commission referred to internal documents of the parties to the concentration at issue, annexed to the form notifying the concentration at issue (‘the Form CO’) (see paragraph 7 above) or to the responses to the Commission’s requests for information. In particular, in recital 261 of the contested decision, it relied on an internal document of the applicant which compared its performance, in particular as regards profitability measured by reference to earnings before interest, taxes, depreciation and amortisation, in general and per tonne of rolled products sold, to that of its main competitors and from which it was apparent that it was much more profitable than those competitors.
105    Likewise, in order to conclude, in recitals 265 and 291 of the contested decision, that, prior to the concentration at issue, the applicant was not only a leader on the relevant market, but was also particularly strong in the ‘high-end’ segment of that market, the Commission referred, in recitals 256 to 290 of that decision, to internal documents of the applicant, annexed to the Form CO and to responses to the Commission’s requests for information.
106    First of all, the Commission took the view that it was apparent from some of those internal documents, cited in recitals 267 to 274 of the contested decision, that the applicant’s long-term strategy was to leave the ‘low-end’ segment of the relevant market in order to grow and differentiate itself in the ‘high-end’ segment of that market, by increasing its production of specialised rolled products in the most profitable areas of connectivity, environment/climate change, and mobility, in particular its production of rolled products made of HPAs, by HDT, and dual gauge strip.
107    According to the Commission, it was apparent also from some of those documents, cited in recitals 275 and 276 of the contested decision, that, according to the applicant’s own estimates, it already had a very large market share in those segments, which it was planning to increase in the following years. The Commission compared those estimates to the results of its own reconstruction of the relevant market, for the segments concerned, between 2015 and 2017, in recitals 277 and 278 of the contested decision, and found that the applicant’s estimates were higher, but that, despite the observed difference, they led to the same finding, that is to say, that the applicant’s market share was large, or even very large, both on the relevant market and in certain sub-segments belonging, essentially, to the ‘high-end’ segment of that market.
108    Next, the Commission stated that it was apparent from an internal document of the applicant, cited in recital 279 of the contested decision, that the applicant regarded itself as a ‘market leader’ in its strategy focusing on specialised rolled products for connectors and stampers, its main competitors being presented, in that regard, as ‘followers’.
109    Lastly, the Commission stated, in recitals 280 to 290 of the contested decision, that, in so far as the segment for ‘high-end’ rolled products was characterised by high barriers to entry and by a tendency to expansion, linked to demand growth and production capacity constraints, leading to high prices, the applicant’s position as a leader and its market power were thereby reinforced in that segment, and would be all the more so following the concentration at issue, which, moreover, had as its aim precisely such a strengthening, according to certain internal documents of the applicant. In order to find that there were production capacity constraints in the segment for ‘high-end’ rolled products, the Commission referred, in recitals 285 to 287 of the contested decision, to certain documents, public or internal, of the parties to the concentration at issue, certain responses of competitors to the market investigation and certain comments made by the parties to the concentration at issue during the administrative proceedings, which were analysed in more detail in Section 6.4.3 and, accordingly, in recitals 449 to 463 of that decision.
110    In order to conclude, in recitals 292 and 299 of the contested decision, that the applicant’s market strength was reflected in its high profitability, compared to its competitors’ profitability, the Commission, after making a brief reference to the applicant’s internal document previously mentioned in recital 261 of the contested decision (see paragraph 104 above), relied, in recitals 293 to 298 of the contested decision, on an analysis of the applicant’s profitability, in particular as regards rolled products for connectors and stampers belonging, essentially, to the ‘high-end’ segment of the relevant market, carried out on the basis of information that the parties to the concentration at issue had provided to it during the administrative proceedings concerning their conversion or fabrication
revenues.
111    At the end of its analyses, the Commission concluded, in recitals 300 to 316 of the contested decision, that a number of facts indicated that the applicant already possessed and exercised a significant degree of market power, prior to the concentration at issue, on the relevant market and, in particular, in the ‘high-end’ segment of that market.
112    In that regard, the Commission found, in recitals 302 to 305 of the contested decision, that it was apparent from certain internal documents of the applicant that it was able to charge higher conversion prices than its competitors for rolled products for connectors and stampers, which was corroborated by information communicated by the parties to the concentration at issue on their conversion or fabrication revenues. That finding, added to that of the higher profitability of the applicant found to exist in the segment for ‘high-end’ rolled products (see paragraph 110 above), was an indication of the applicant’s significant market power on the relevant market, in particular in the ‘high-end’ segment of that market.
113    In addition, in recitals 306 to 310 of the contested decision, the Commission found that certain internal documents of the applicant confirmed that its industrial customers were highly dependent on its supplies of certain groups of special alloys, in respect of which it had a better range of rolled products (HPAs), could supply certain finishes (HDT) or was already qualified by the industrial customers, and that it was thus in a position to increase its prices without fearing losing those customers.
114    Moreover, the Commission found, in recitals 311 and 312 of the contested decision, that certain internal documents of the applicant showed that it was in a position to pursue a strategy of withdrawing from the segment for ‘low-end’ or ‘commoditised’ rolled products in order to focus on that for ‘high-end’ rolled products and, for example, choose to serve customers supplied with specialised rolled products.
115    Lastly, the Commission found, in recitals 313 to 315 of the contested decision, that the responses of industrial customers to the market investigation also suggested that the applicant had significant market power, since it was regarded by those customers as a particularly expensive supplier, whose prices were relatively high compared to those of its competitors, but that, for certain alloys, it was an indispensable supplier.
116    In the present case, in so far as the applicant disputes the overall reliability of the internal documents to which the Commission referred, in the contested decision, in order to establish its position or power on the relevant market, it must be stated that, in the light of the principle of the unfettered evaluation of evidence which prevails in EU law (see judgment of 19 December 2013, Siemens and Others v Commission, C‑239/11 P, C‑489/11 P and C‑498/11 P, not published, EU:C:2013:866, paragraph 128 and the case-law cited; see also, to that effect, judgment of 25 January 2007, Dalmine v Commission, C‑407/04 P, EU:C:2007:53, paragraph 63), those documents were items of evidence which could be taken into account, by the Commission, in the context of the recourse to the body of evidence method, for the purpose of substantiating its assessments.
117    Contrary to what the applicant submits, the content of those internal documents must be regarded as particularly credible. Those documents were drawn up by persons who were directly involved in the applicant’s business on the relevant market, at the material time. They were intended to clarify how decisions were taken within the undertaking. Thus, in order to be useful, they had to reflect accurately the applicant’s position on the market or to supply reasonable estimates on the development of that position, in the light of the strategy implemented by the applicant and its competitors’ relative position on that market. By contrast, those documents in no way sought to defend the applicant’s interests in the context of the present dispute. Moreover, their content even runs counter to those interests, since they can be relied on in support of the Commission’s position. In the light of the case-law according to which, first, it is necessary to attach great importance to the fact that documents were drawn up in close connection with the events or by a direct witness of those events, and, second, statements which run counter to the interests of the declarant must in principle be regarded as particularly reliable evidence (judgment of 16 June 2015, FSL and Others v Commission, T‑655/11, EU:T:2015:383, paragraph 183), the probative value of those documents must therefore be regarded as high.
118    Moreover, as is apparent from the presentation of the contested decision set out in paragraphs 101 to 115 above, those documents’ content was consistent with other indicia or evidence gathered by the Commission during the administrative proceedings and, in particular, with the results of the reconstruction of the relevant market, which it had carried out itself, with the responses of industrial customers and competitors to the market investigation and with other public or internal documents or certain statements of the parties to the concentration at issue. Taken as a whole, the evidence gathered by the Commission established to the requisite legal standard that, even prior to the concentration at issue, the applicant had, on the relevant market, much larger market shares than all its competitors and a market power that was sufficiently significant, in particular in the segment for ‘high-end’ rolled products, where its activities were focused, to allow it to set its business strategy independently of its competitors and industrial customers and be considerably more expensive and profitable than those competitors. The body of evidence thus gathered by the Commission was sufficiently consistent, reliable and relevant to substantiate the conclusions it reached as a result.
119    In so far as the Commission thus had a consistent, reliable and relevant body of evidence available to it to substantiate its conclusions, it was justified in not carrying out new investigations, having regard, moreover, to the time constraints imposed on it by the procedural time limits laid down by Regulation No 139/2004.
120    In addition and in so far as the applicant argues, in essence, that the Commission selected, from the file, only evidence which supported its assessments, in the contested decision, implying thereby that the Commission left out other evidence that would have undermined or contradicted those assessments. it should be borne in mind that, in accordance with the case-law, the only relevant criterion for the purpose of assessing evidence lawfully adduced relates to its credibility (see judgment of 19 December 2013, Siemens and Others v Commission, C‑239/11 P, C‑489/11 P and C‑498/11 P, not published, EU:C:2013:866, paragraph 128 and the case-law cited; see also, to that effect, judgment of 25 January 2007, Dalmine v Commission, C‑407/04 P, EU:C:2007:53, paragraph 63) and the sole fact that, in the context of a Commission decision based on a body of evidence, some indicia are prioritised and others discounted does not suffice to call into question the lawfulness of that decision, when the choices made by the Commission, in that regard, are adequately justified (see, to that effect, judgment of 6 July 2010, Ryanair v Commission, T‑342/07, EU:T:2010:280, paragraph 108).
121    In the present case, the applicant has, in its pleadings, merely called into question the reliability of the evidence cited by the Commission without stating which evidence in the file, which would have contradicted or undermined the former, had been left out by the Commission. It has not put forward anything such as to contradict the content of the documents and statements on which the Commission relied. It is not for the Court to search, in the file, whether there is such evidence, but for the one who relies on a plea in law, complaint or argument to supply the evidence substantiating it, making it possible for the Court to determine precisely where that evidence can be found in the annexes (see, to that effect, judgment of 17 September 2007, Microsoft v Commission, T‑201/04, EU:T:2007:289, paragraph 99). In the present case, it was thus for the applicant to put forward evidence such as to call into question the Commission’s substantiated findings, which it has failed to do.
122    In conclusion, the applicant has therefore not succeeded in calling into question the analysis carried out by the Commission in Section 6.3.1 of the contested decision.
123    Consequently, the first part of the fifth plea in law must be rejected.
2.      The second part of the fifth plea in law
124    By the second part of the fifth plea, the applicant argues that, in Section 6.3.2 of the contested decision, the Commission committed a manifest error of assessment by overstating the importance and closeness of competition between the parties to the concentration at issue, in particular in the alleged ‘high-end’ segment of the relevant market.
125    The Commission disputes the applicant’s arguments and contends that the second part of the fifth plea should be rejected as unfounded.
126    First, in the context of the second part of the fifth plea, the applicant criticises the Commission for having observed, in Section 6.3.2.1 and in recital 375 of the contested decision, that ARP was an important, if not the most important, competitor of the applicant on the relevant market. It argues that the Commission failed to take account, in its analyses, of many other strong competitors, such as Diehl, Kemper, Olin Brass, now held by Global Brass and Copper Holdings, Inc. (‘GBC’), PMX Industries, Inc., part of the Poongsan group, Sofia Med SA or Messingwerk Plettenberg Herfeld GmbH & Co. KG (‘Messingwerk Plettenberg’), which were referred to during the market investigation and in the written observations on the decision to initiate in-depth investigation proceedings, and in particular its closest competitor, namely KME/MKM, having regard to the ‘priority rule’, according to which a concentration should be examined in the light of all transactions previously notified.
127    In that regard, it should be noted that the Commission stated, in recital 375 of the contested decision, that it ‘[had] not considered ARP to be the closest competitor of [the applicant]’. According to the Commission, in accordance with the Guidelines on the assessment of horizontal mergers, it was sufficient to establish that the parties to the concentration were ‘close competitors’. It followed from evidence in the file that ARP was an important and close competitor of the applicant in the key segments of the relevant market and that conclusion is not called into question by the applicant’s complaint according to which it was not ‘the closest competitor’ of ARP on the relevant market.
128    Depending on the circumstances, a relevant product market may include more or less close substitutes, so that the competition between the products belonging to that market may vary in intensity, irrespective of market shares. Consequently, the non-coordinated effects of a concentration may depend more on the closeness of the products of the merging parties than on their respective market shares. Thus, paragraph 28 of the Guidelines on the assessment of horizontal mergers states, inter alia, that ‘the higher the degree of substitutability between the merging firms’ products, the more likely it is that the merging firms will raise prices significantly’.
129    The concept of ‘close competitor’, based on the more or less high level of substitutability of the products, allows account to be taken of the fact that rivalry between the merging parties is an important source of competition on the market and may therefore be a central factor in the analysis as to whether the reduction in competitive constraints arising from a concentration could lead to significant price increases on the relevant market.
130    Thus, even supposing that, as the applicant claims, the evidence in the file should have led the Commission to find that KME/MKM was the applicant’s ‘closest competitor’, it would not follow from that that the Commission’s – legally sufficient – assessment that the parties to the concentration at issue were close competitors is itself incorrect.
131    In any event, it should be noted that the Commission’s assessment according to which the parties to the concentration at issue were important and close competitors in key segments of the relevant market, in which their activities were focused and overlapped, was based on various items of evidence, namely the sales data of suppliers of rolled products, testimonies of market participants and internal documents of the parties. Those data and testimonies were credible, in so far as they were data that had been collected directly from the source, from each of the market participants concerned, or were direct testimonies as regards the events recounted. In addition, the internal documents of the parties to the concentration at issue to which the Commission referred could be considered to be particularly credible and reliable, in so far as they were drawn up by them, at the material time, during the ordinary course of their business and without their content being in line with those parties’ interests in the context of the present action. All those items constituted a body of credible and consistent evidence establishing that the parties to the concentration at issue were important and close competitors in key segments of the relevant market, in which their activities were focused and overlapped.
132    In that context, it is thus for the applicant to put forward evidence such as to call into question that finding. The applicant has merely stated, without furnishing any supporting evidence, that ‘the market position of [its] closest competitor[, namely] KME[, including KMD Connectors Stolberg GmbH, the joint subsidiary of KME (50%) and two Chinese undertakings, Golden Dragon Precise Copper Tube Group Inc. (34%) and Chongqing Wanzhou Economy Technology Development Co (16%),] and MKM (especially with regard to quality and pricing) [was] grossly understated in the [contested decision] and obviously misjudged by the Commission’. Such a complaint, directed against the contested decision, is not substantiated by evidence, as required by the case-law (see paragraph 121 above), and must therefore be rejected as unfounded. Moreover, in so far as the applicant refers to one of its internal documents listing its competitors on the relevant market, cited in recital 319 of the contested decision, from which it was apparent that, ‘when adding the sales volume [of] KME and MKM …, the new entity KME/MKM [would] be the second largest [market] player’, it is sufficient to note that that does not lead to the conclusion, reached by the applicant, that KME/MKM thus became ‘the applicant’s closest competitor’, since, as is apparent from paragraph 28 of the Guidelines on the assessment of horizontal mergers, the relevant criterion in that regard is the degree of substitutability between the products of the undertakings in question.
133    Moreover, the applicant claims that the Commission erred in considering, in recital 321 et seq. of the contested decision, that ARP had certain competitive advantages on account of being part of the Aurubis group.
134    In that regard, it should be noted that the applicant does not dispute the Commission’s assessments, based on Aurubis’ annual report, according to which the core of the group’s business model was the vertical integration of its activities. The main advantages of a vertical integration model are better control over the undertaking’s entire production process and a reduction in production costs, given that the undertaking is its own supplier (elimination of double mark-ups). That two-fold advantage, which is, moreover, referred to, as the Commission states in recital 321 of the contested decision, in Aurubis’ annual report, should also benefit ARP, as an integral part of that group, in particular as regards the supply of copper cathodes and copper shapes (billets and cakes) for the manufacturing of its rolled products.
135    Admittedly, the applicant claims that ARP does not benefit from any supply advantage and that, in particular, its plants in Stolberg (Germany) and Zutphen (Netherlands) bought cathodes at market price within the Aurubis group. Nevertheless, such a complaint, directed against the contested decision, is not substantiated, as required by the case-law (see paragraph 121 above), and must therefore be rejected as unfounded. In any event, that complaint does not call into question the advantage of having control over the entire production process or the advantage established by the Commission in recital 324 of the contested decision, concerning Aurubis’ financial capability to invest in research and development in key segments of the relevant market.
136    As regards the applicant’s argument that the advantages from which ARP benefited would disappear following the concentration at issue, with the result that they should not have been taken into account, it has no relevance, since in the present case, it was necessary to determine whether, prior to that concentration, ARP was an important, even if not the most important, competitor of the applicant on the relevant market.
137    Lastly, in so far as the applicant argues that the Commission overstated, in recital 327 of the contested decision, the importance of the financial strength of the Aurubis group, by misreading a paragraph entitled ‘We Grow’ in a document entitled ‘Aurubis’ Vision 2025’, which described an objective pursued by the Aurubis group and not its actual situation, it should be pointed out that, in that recital, the Commission primarily stated, on the basis of a different document from
the one cited by the applicant, that Aurubis also had a strong presence outside the EEA and on a worldwide scale, in particular in North America, which allowed it to benefit from high economies of scale and intra-group synergies and that that well-balanced geographic presence ‘[ensured] superior financial performance’ for the Aurubis group, as had been established in the document entitled ‘Aurubis’ Vision 2025’. Therefore, the finding thus made by the Commission indeed corresponded to a general strategy on the part of the Aurubis group, which had already been implemented prior to the concentration at issue.
138    Accordingly, all the criticisms made by the applicant in respect of Section 6.3.2.1 of the contested decision must be rejected.
139    Second, the applicant claims that the Commission overstated, in Section 6.3.2.2 of the contested decision, the competitive pressure exerted by ARP in certain key sub-segments of the relevant market belonging, essentially, to the ‘high-end’ segment of that market.
140    In that regard, it should be pointed out that, in order to reach the conclusion that ARP was an important and close competitor of the applicant in key segments of the relevant market, the Commission relied, as set out in paragraph 131 above, on a body of credible and consistent evidence.
141    In accordance with the case-law cited in paragraph 120 above, the conclusion that the Commission reached following the overall assessment of those various items of evidence and indicia cannot be called into question on the basis of a single one of them.
142    In the present case, the applicant does not dispute ARP’s large market shares, resulting from the reconstruction of the relevant market carried out by the Commission, in particular as regards rolled products made of HPAs, bronze, brass or oxygen-free electronic copper (‘OFE copper’). In so far as it claims that ARP’s market shares for rolled products made of HPAs grew at the same rate as the market, it is sufficient to find that, according to the sales figures in volume provided by the applicant and extracts from Table 4 set out in recital 277 of the contested decision, to which recital 348 of that decision refers, that increase was 1.5 times that of the market, indicating that ARP gained, in practice, market shares.
143    In so far as the applicant disputes the reliability of the data broken down by copper alloys or fields of end uses that it itself and ARP had supplied to the Commission, it should be noted that those data were corroborated by other evidence supporting the Commission’s conclusion. Moreover, as the applicant acknowledges, they corresponded, in the absence of complete data, to ‘best guesses’ of the undertakings directly concerned and, therefore, to the most reliable evidence that the Commission could actually obtain in that regard. As regards the data broken down by fields of end uses, the Commission moreover acknowledged, in footnote 224
to the contested decision, that those data were approximate and were valid only as regards the main conclusions that could be drawn from them. In that context and in the light of the case-law, according to which, where it takes a decision on whether a concentration is incompatible with the internal market, it is open to it to have recourse to a body of evidence which, taken as a whole, meets the criteria of firm, precise and consistent evidence required by the case-law (see, to that effect, judgments of 6 July 2010, Ryanair v Commission, T‑342/07, EU:T:2010:280, paragraph 136, and of 9 March 2015, Deutsche Börse v Commission, T‑175/12, not published, EU:T:2015:148, paragraph 133), the Commission cannot be criticised for thus having used, as indicia, data which could not, in themselves, be considered to be perfect evidence.
144    Moreover and contrary to what the applicant submits, the Commission was justified in requesting those data from the parties to the concentration at issue, under Article 11 of Regulation No 139/2004, since, as stated in recital 352 of the contested decision, those data, even if they were approximate, could allow it to assess in more detail the competitive relationship between ARP and the applicant in certain key segments of the relevant market.
145    In so far as the applicant claims that, as regards the specific segment for rolled products for heat exchangers, the Commission itself acknowledged that the applicant was not actually in competition with ARP, it in no way states how such a finding would call into question the Commission’s conclusion that the parties to the concentration at issue were close competitors. It is not apparent from recitals 356 to 359 of the contested decision that the Commission relied, in particular, on the finding that the parties to the concentration at issue were close competitors in that specific segment. Rather, it is apparent from the data reproduced in Table 18 set out in recital 357 of the contested decision that the estimated size of that segment was relatively small (0.4%), compared to that of other segments, such as connectors for the automotive industry and for automotive stamping (15% and 8.3%, respectively) or stamping (5.5%) and that the concentration at issue would above all allow the applicant to become a major player in the segment for rolled products for heat exchangers, with a market share of [65-75]%, where it would have previously had only a marginal position, with a market share of [2-7]%, inasmuch as it would combine that share with ARP’s market share of [65-70]%. That was, moreover, consistent with the Commission’s observation, set out in recital 304 of the contested decision, according to which, in the specific segment for rolled products for heat exchangers and unlike most of the other segments where the activities of the parties to the concentration at issue overlapped, the applicant was not in a position to charge higher conversion prices than ARP.
146    Accordingly, all the criticisms made by the applicant in respect of Section 6.3.2.2 of the contested decision must be rejected.
147    Third, the applicant argues that, in Section 6.3.2.5 of the contested decision, the Commission, in finding that the applicant was an increasingly important competitor of ARP in the segments in which the latter was strong, in particular the segment for rolled products made of OFE copper, which covered end uses belonging to the ‘high-end’ segment of the relevant market, such as direct copper bond substrates (‘DCB substrates’), failed to take account of the fact that the applicant was in close competition not only with ARP and MKM but also with all other competitors which could be supplied with pre-rolled strip made of OFE copper on the merchant market, in particular by Aurubis Hamburg.
148    However, the applicant fails to take account of the fact that, in Section 6.3.2.5 of the contested decision, the Commission set out to establish, in accordance with paragraph 28 of the Guidelines on the assessment of horizontal mergers, not that the parties to the concentration at issue were the closest competitors, but only that they were close competitors in sub-segments belonging, essentially, to the ‘high-end’ segment of the relevant market, in which ARP was strong, such as the sub-segment for rolled products made of OFE copper, in particular those intended for DCB substrates, for which ARP had until then been the sole supplier, while the applicant was on the brink of supplying some industrial customers.
149    In that regard, the Commission referred to the data in Table 19 set out in recital 399 of the contested decision, from which it was apparent that, in 2017, ARP had a market share volume evaluated at [50-60]% in the segment for rolled products made of OFE copper, followed by MKM with [20-30]%, the applicant with [10-20]%, with all other competitors, excluding imports, sharing the remaining [0-5]% of the market. The Commission also referred to internal documents produced by the parties to the concentration at issue in the ordinary course of their business, cited in recitals 397 and 401 of the contested decision, and to statements of an important industrial customer in the segment for DCB substrates, cited in recitals 398 and 402 of that decision, from which it was apparent that the applicant was the sole potential competitor of ARP in the specific segment for rolled products made of OFE copper intended for DCB substrates.
150    Those data and that testimony were credible, in so far as they were information that had been collected directly from the source, from each of the market participants concerned, or were a direct testimony as regards the events recounted. In addition, the internal documents of the parties to the concentration at issue to which the Commission referred could be considered to be particularly credible and reliable, in so far as they had been drawn up by them, at the material time, during the ordinary course of their business and without their content being in line with those parties’ interests in the context of the present action. All those items constituted a body of credible and consistent evidence establishing that the parties to the concentration at issue were important and close competitors in the specific segment for rolled products made of OFE copper intended for DCB substrates. The criticism made by the applicant as regards the Commission’s conclusion based on that body of credible and consistent evidence is not substantiated, as required by the case-law (see paragraph 121 above), and must therefore be rejected as unfounded.
151    Accordingly, all the criticisms made by the applicant in respect of Section 6.3.2.5 of the contested decision must be rejected, with the result that, ultimately, the applicant has not succeeded in calling into question the analysis carried out by the Commission in Section 6.3.2 of that decision.
152    Having regard to all the foregoing considerations, the second part of the fifth plea in law must be rejected.
3.      The third part of the fifth plea in law
153    In the context of the third part of the fifth plea, which is divided into four limbs, the applicant claims that the Commission committed a manifest error of assessment, in Section 6.4 of the contested decision, in understating the competitive pressure exercised by the competitors of the parties to the concentration at issue and their ability to offset a potential price increase on the part of the applicant on the relevant market, in particular in the alleged ‘high-end’ segment of that market.
154    The Commission disputes the applicant’s arguments and contends that the third part of the fifth plea, divided into four limbs, should be rejected as unfounded.
(a)    The first limb of the third part of the fifth plea in law
155    In the context of the first limb of the third part of the fifth plea, the applicant argues that, in Section 6.4.1 of the contested decision, the Commission committed a manifest error of assessment on account of a misrepresentation of the competitive landscape on the relevant market. The applicant submits, first, that the Commission could not focus on the limited number of participants that were in a position to compete, on a comparable footing, with the parties to the concentration at issue, in the alleged segment for ‘high-end’ rolled products, but had to take account of the fact that the relevant market was, in the present case, the market for all rolled products. Second, it submits that the Commission did not take sufficient account of the evidence in the file indicating that there were numerous competitors in the alleged segment for ‘high-end’ rolled products and of the conduct of industrial customers which could easily switch suppliers and that the Commission had not collected sufficient evidence to substantiate its assessments to the contrary.
156    The Commission disputes the applicant’s arguments and contends that the first limb of the third part of the fifth plea should be rejected as unfounded.
157    In so far as the applicant criticises the Commission for having focused on competition in the segment for ‘high-end’ rolled products rather than on the relevant market as a whole, it should be noted that, as was previously found in response to the first plea, the Commission was justified, in the present case, in focusing on the effects that the concentration at issue would have on competition in the ‘high-end’ segment of the relevant market, which could, in the light of the ‘cream skimming’ strategy implemented by the applicant, have an effect on the relevant market as a whole (see paragraph 73 above), which, while highly differentiated, remained an overall market on which the applicant was a leader, as stated in recital 507 of the contested decision. In that context, it was legitimate for the Commission to identify, in recitals 408 to 431 of the contested decision, the participants which, on the relevant market, were in a position to compete with the parties to the concentration at issue on a comparable footing in the segment for ‘high-end’ rolled products.
158    Lastly, the applicant criticises the Commission for not having taken sufficient account of the evidence in the file indicating that there were numerous other competitors in the segment for ‘high-end’ rolled products and of the conduct of industrial customers which could easily switch suppliers on the relevant market, as had been demonstrated in the report prepared by an economic consultancy on the purchasing and switching patterns of the industrial customers of the parties to the concentration at issue, which the applicant had submitted to the Commission, in the context of the exchange with it on 29 August 2018 (‘the report analysing the determining factors as regards switching suppliers’).
159    In that regard, it must be pointed out, as a preliminary point, that, in recital 431 of the contested decision, the Commission specifically observed that, on the relevant market, and, in particular, in its ‘high-end’ segment, there were few competitors which were in a position to meet the specific demand and technical requirements of industrial customers and hence compete with the applicant on a comparable footing. Thus, it was not sufficient for an economic operator to be present on the relevant market for a given type of rolled product, in general, for it to be able to compete with the applicant in the segment for ‘high-end’ rolled products, in particular, which would require that operator to be in a position to meet the specific demand and technical requirements of industrial customers in that segment.
160    In so far as the applicant refers to the competitors supplying the connector sector listed in paragraph 59 of its written observations on the decision to initiate in-depth investigation proceedings, it must be stated that, as the Commission correctly observed in recital 415 of the contested decision, the list refers to competitors active on the global market and not solely on the EEA market, which was identified, in recital 148 of the contested decision, as the relevant geographic market. As the Commission stated in recitals 410 and 413 of the contested decision, referring to the figures reproduced in Tables 4 and 5 set out in recital 277 of the contested decision and in Table 16 set out in recital 350 of that decision, imports into the EEA were very limited and, as stated in recitals 156 and 160 of that decision, the majority of industrial customers on the relevant geographic market, inter alia TE Connectivity Ltd, sourced supplies in the EEA and expressed doubts as regards the ability of suppliers established outside the EEA to supply them with rolled products of the quality they needed, with the result that, generally, the competitive pressure exercised by suppliers established outside the EEA on the relevant geographical market was not very meaningful.
161    Moreover, in so far as the applicant refers, in the application, to the content of the report analysing the determining factors as regards switching suppliers, it does not refer to any element of that report that would make it apparent that the Commission had erred in taking the view that the competitors capable of competing with the parties to the concentration at issue in the ‘high-end’ segment of the relevant market were limited in number.
162    In so far as the applicant calls into question the reliability and representativity of the responses of the industrial customers to the market investigation, cited by the Commission in recital 412 of the contested decision, it should be borne in mind, first of all, that those responses were only one of the indicia on which the Commission relied, since it also relied, as is apparent from recitals 409 to 411 of that decision, on an internal document of the applicant and on information communicated by the applicant during the administrative proceedings concerning the suppliers of an industrial customer, TE Connectivity. The internal document of the applicant was particularly credible and reliable, in so far as it had been drawn up by it, at the material time, during its ordinary course of business and without its content being in line with the applicant’s interests in the context of the present action. Moreover, the content of that document was corroborated by the information communicated by the applicant during the administrative proceedings. Those indicia confirmed the existence of a small number of competitors of the parties to the concentration at issue in the ‘high-end’ segment of the relevant market. The responses of the industrial customers examined were themselves highly credible, in so far as they originated from industrial customers of competitors which were active in the sub-segments for the rolled products concerned, belonging, essentially, to the ‘high-end’ segment of the relevant market. The fact that only 5 customers from the stamper industry and 10 customers from the connector industry had responded to its questionnaire did not prevent the Commission from taking account of those responses, as indicia, in order to substantiate its assessments. The mere fact that a part, even if a large part, of the industrial customers had not responded to that questionnaire does not affect the credibility of the responses of those that had responded, all the more so since their content was corroborated by other credible and consistent indicia.
163    In that regard, it should be borne in mind that, in accordance with the case-law previously cited in paragraphs 116 and 120 above, the sole criterion that may justify, in the context of the overall assessment of the body of evidence used to evaluate the competitive situation at issue, the Commission choosing, subject to judicial review on the part of the Court, to prioritise some items of evidence and to discount others is the relative credibility of each of those items.
164    In the present case, in the context of the overall assessment of the body of evidence used to evaluate the competitive situation prevailing in the segment for ‘high-end’ rolled products, in which the applicant focused its activities and where the activities of the parties to the concentration at issue overlapped the most, the Commission took account of the responses of the market participants by considering that, first, the industrial customers were those which had the most to fear from the anticompetitive effects of that concentration, in so far as they would be the ones that would bear the price increases in that segment, while the competitors could, as the case may be, benefit from them, by claiming the activities divested by the applicant in its implementation of the proposed commitments or by following the price increases orchestrated by the applicant in that segment, and, second, the overall market for rolled products was highly differentiated and characterised by the existence of different segments driven by specific anticompetitive dynamics, in so far as not all competitors were necessarily in a position to enter or expand in all the segments of that market, in particular in the segment for ‘high-end’ rolled products. In addition, the Commission assessed to what extent those responses corroborated, or not, the other items of evidence or indicia gathered during the administrative proceedings, in particular those referred to in paragraph 162 above.
165    Such a method of weighing the various items of evidence or indicia, depending on their greater or lesser degree of credibility or probative value, corresponds to what is required by the case-law and cannot be, as the applicant submits, considered to be a partial selection of only those items of evidence or indicia that support the Commission’s assessments. The method led the Commission to qualify the statements of some market participants, which described an increase of competition on the relevant market, in the light of the statements of other market participants and other items of evidence or indicia available in the file, from which it was apparent that competition was, in reality, intense in some parts of the relevant market, namely in the ‘low-end’ or ‘commoditised’ segment of that market, whereas it was limited in other parts of that market, in particular the segment for ‘high-end’ rolled products.
166    For the abovementioned reasons, the applicant’s criticism concerning the alleged partial selection of evidence by the Commission must be rejected.
167    Lastly, in so far as the applicant argues that the Commission disregarded, in Section 6.4.1 of the contested decision, the fact that, if the price of the applicant’s rolled products were to increase, competitors established in the EEA could have the incentive to redirect their rolled product exports to the EEA, where margins would increase, it should be noted that, in response to a similar objection made by the applicant in paragraph 94 of its reply to the statement of objections, the Commission stated, in essence, in recital 430 of the contested decision, that it was unlikely that exports that would be redirected to the ‘high-end’ segment of the market for rolled products in the EEA, which was growing, for the purpose of benefiting from increased margins in that segment, would be such as to counter the applicant’s price increases. The applicant merely repeats the pleas it relied on to defend itself during the administrative proceedings, without taking account of the evidence that the Commission thus put forward in response in the contested decision. In particular, the applicant has not relied on any argument capable of calling into question the merits of the response given by the Commission in recital 430 of the contested decision. Such an argument was all the more necessary, in the present case, since the response given by the Commission appeared well
founded. The competitors would redirect their exports to the ‘high-end’ segment of the rolled products market in the EEA, which was growing and could absorb those additional sales, in order to benefit from the higher margins on that market. They would thus be in a position to follow the price increases orchestrated by the applicant while increasing their sales in that segment. In those circumstances, it would in reality be unlikely that those exports would exert sufficient competitive pressure so as to counter those price increases. Accordingly, the present complaint must be rejected as unfounded.
168    In the light of the foregoing considerations, the first limb of the third part of the fifth plea in law must be rejected.
(b)    The second limb of the third part of the fifth plea in law
169    In the context of the second limb of the third part of the fifth plea, the applicant claims that, in Section 6.4.2 of the contested decision, the Commission committed a manifest error of assessment in finding, in an inaccurate and insufficiently substantiated manner, that there were significant barriers to entry and expansion in the alleged segment for ‘high-end’ rolled products, on account of the need to make significant investments, in research and development and equipment, for the purpose of meeting the high requirements of the industrial customers, in particular in the context of their qualification processes.
170    The Commission disputes the applicant’s arguments and contends that the second limb of the third part of the fifth plea should be rejected as unfounded.
171    It is apparent from recitals 433 to 448 of the contested decision that, in order to conclude that there were significant barriers to entry and expansion in the alleged segment for ‘high-end’ rolled products, the Commission relied on a set of assessments and items of evidence or indicia, only some of which have been expressly disputed by the applicant.
172    In so far as the applicant criticises, in essence, the Commission for having, in recital 434 of the contested decision, overstated the investments in equipment made by ARP in the ‘high-end’ segment of the relevant market, even though the only investments made by ARP to extend its product range in that segment was an HDT line following the restructuring of its plant in Zutphen, for the modest amount of less than EUR 5 million, it should be pointed out that, as the Commission stated in recital 435 of the contested decision, in response to the similar objections previously set out in paragraph 96 of applicant’s reply to the statement of objections, that investment clearly did not cover the costs incurred for research and development of new rolled products for power electronics and connectors, in particular automotive connectors, which are referred to in ARP’s 2015-2016 and 2016-2017 annual reports and to which the Commission refers.
173    The present complaint must therefore be rejected as unfounded.
174    As regards the applicant’s challenge of the Commission’s assessments, in recital 436 of that decision, according to which the applicant is in a strong position in matters of research and development and lodging patents for copper alloys, on the ground that those assessments are based on exaggerated presentations, for promotional purposes, on its website, and not on reliable data, it should be noted, first of all, that those assessments are based on several credible and consistent items of evidence or indicia, namely a high number of patents registered by the applicant, in particular for specific alloy compositions, in the European Patent Register, an extract from the applicant’s 2016-2017 annual report indicating that the development of new and improvement of existing materials, products and manufacturing processes were an essential pillar of its business success and the statements of an industrial customer of the applicant in the connector sector, reproduced on the applicant’s website, confirming that the opportunities offered by the applicant in research and development were a key factor for that customer’s cooperation with it.
175    Next, the applicant does not dispute that it has a high number of patents, but submits only that those patents did not relate, in essence, to the 20 alloys and tempers it sold the most, referring, in that regard, to the data in Table 20 set out in paragraph 295 of the Form CO.
176    In response to the objections raised by the applicant in paragraph 98 of its reply to the statement of objections, the Commission merely stated that research and development were an important factor for success in the segment for ‘high-end’ rolled products, by referring to the extract from the applicant’s 2016-2017 annual report and the statements of the industrial customer, TE Connectivity, which was especially meaningful, according to the Commission, since it was the applicant’s largest customer and a global player in the connector industry.
177    In that regard, it should be noted that, in recital 436 of the contested decision, the Commission did not dispute that, as the applicant claimed in the context of the administrative proceedings, there was no important patent or intellectual property right preventing new competitors from entering the segment for ‘high-end’ rolled products.
178    Even though the Commission has not, in the present case, established in what way the patents registered in the European Patent Register were decisive for the applicant’s business success in the segment for ‘high-end’ rolled products, it must be stated that it established to the requisite legal standard, on the basis of the body of credible and consistent evidence that it had gathered, that investments in research and development of new products and know-how were an important factor for being successful with the industrial customers in that segment.
179    While it is true that any company naturally tends to present itself in the best possible light in its annual report or on its website, which are available to the public, it cannot, without risking causing harm to its credibility and image, present therein incorrect analyses concerning the decisive factors for success on that market which it has identified and which direct its business strategy, or statements of its largest customers which do not correspond to the image that they have of their business partner. The citations selected by the Commission showed clearly that research and development were a key factor for achieving business success with the industrial customers in the ‘high-end’ segment of the relevant market.
180    In addition, the Commission also made the relevant statement, in recital 448 of the contested decision, that, in order to enter the segment for ‘high-end’ rolled products, Sofia Med had to conclude an agreement with Dowa Metaltech Co. Ltd for know-how and technological transfer.
181    Moreover, in paragraph 297 of the Form CO, the applicant had stated that, from its point of view, ‘the only entry barriers [were] created by the customers themselves’, in so far as ‘some of them [required] their suppliers to meet strict product specifications’ and that ‘a potential entrant in the markets for rolled products therefore [needed] to develop sufficient know-how’, in particular since ‘product qualification sometimes [involved] … the development of a rolled copper product meeting the customer’s product specifications’.
182    For all the foregoing reasons, the present complaint must be rejected as unfounded.
183    In so far as the applicant criticises, in essence, the Commission for having, first, in recital 439 of the contested decision, overstated the costs of training personnel and the experience required to produce ‘high-end’ rolled products, on the ground that such costs are incurred for the production of any rolled product, and, second, for failing to find, in the light of, in particular, the data reproduced in Table 21 set out in recital 442 of the contested decision, that all the equipment necessary for the manufacturing of ‘high-end’ rolled products was readily available, possibly from subcontractors or the industrial customers themselves, it should be noted that, in that decision, the Commission responded to similar objections raised by the applicant, respectively, in paragraphs 98 and 100 of its reply to the statement of objections.
184    In response to the first complaint made by the applicant, the Commission observed that the applicant had merely made a general and unsubstantiated objection, which did not call into question its assessments according to which the need for specific equipment for the manufacturing of ‘high-end’ rolled products, such as stretch-bend levellers, involved additional costs for personnel training. In that regard, the Commission relied, in recital 439 of the contested decision, on data and information submitted by the parties to the concentration at issue, which constituted a body of credible and consistent evidence in response to the applicant’s objection and in support of what the Commission itself put forward.
185    In addition, in response to the second complaint made by the applicant, the Commission observed, in recitals 439 and 445 of the contested decision, first, that the applicant had in no way substantiated its claims concerning the availability of stretch-bend levellers. Second, as regards equipment for tinning, the Commission stated that the applicant included the available electroplating equipment even though, for the reasons set out in recital 440 of the contested decision, which were based on a body of credible and consistent evidence from internal documents produced by the parties to the concentration at issue in the ordinary course of their business and statements of a supplier in the course of the investigation, HDT was needed in order to meet the requirements of certain industrial customers, such as those in the automotive industry. It also stated that the applicant’s view that electroplating and HDT were two perfectly interchangeable techniques was not consistent with the strategic choices of the parties to the concentration at issue to invest in the development of their HDT capacities.
186    In the context of the present action, the applicant has merely reproduced, as regards the present complaints, the line of argument set out in its reply to the statement of objections and has not put forward any precise or substantiated arguments such as to call into question the merits of the substantiated assessments that the Commission provided in response in the contested decision, as required by the case-law (see paragraph 121 above).
187    Consequently, the present complaints must be rejected as unfounded.
188    Moreover, in so far as the applicant submits that the Commission’s assessment, set out in recital 442 of the contested decision, according to which few competitors had HDT lines, was incorrect, since the Commission itself stated, in recitals 443 and 445 of the contested decision, that several of them invested in that type of equipment and would have it following the concentration at issue, it is sufficient to find that a combined reading of those recitals does not lead to a finding that the Commission contradicted itself or erred in stating that HDT lines were equipment that was not widely available amongst the competitors of the parties to the concentration at issue and that they were a costly investment.
189    Consequently, the present complaint must be rejected as unfounded.
190    In so far as the applicant criticises the Commission for having, in recital 446 of the contested decision, taken the view that the qualification processes of industrial customers were a barrier to entering the relevant market, it must be stated, first of all, that the assessment carried out by the Commission in that recital was not based solely on the statements made by an industrial customer in a call during the administrative proceedings, referred to in that recital, but on a much wider body of evidence.
191    First, in recital 446 of the contested decision, the Commission referred to the non-confidential responses of industrial customers to the market investigation, from which it was apparent that, while the duration and intensity of the qualification processes varied depending on the segments concerned of the relevant market, they generally took more time and were more intense in the ‘high-end’ segment of that market or in the sub-segments belonging, essentially, to that segment, such as the sub-segment for rolled products for the automotive industry. It was also apparent from those responses that those customers preferred, for reasons related to trust and quality, to establish long-term business relationships with their suppliers and, accordingly, to favour suppliers that were already established and qualified.
192    Second, the Commission referred, in recital 446 of the contested decision, to Section 6.5.2 and, accordingly, to recitals 520 to 538 of that decision and to items of evidence or indicia which it had gathered in response to objections similar to the present complaint, from which it was apparent that the qualification processes could take a lot of effort, time and money when the customers concerned had particular requirements. In recitals 527 and 529 to 531 of the contested decision, it relied on certain non-confidential responses of industrial customers to the market investigation, stating that the qualification processes were long, intense and costly in the ‘high-end’ segment of the relevant market or sub-segments belonging, essentially, to that segment. It also referred to non-confidential responses of those customers indicating that for them it was essential to establish long-term business relationships with their suppliers. Lastly, in recitals 534 to 536 of the contested decision, the Commission referred to several items of evidence, which established that the processes for re-qualifying already existing rolled product lines remained demanding in the ‘high-end’ segment of the relevant market or sub-segments belonging, essentially, to that segment, such as the sub-segment for rolled products for the automotive industry.
193    The evidence thus gathered, which relied on testimonies originating directly from industrial customers purchasing different types of rolled products belonging to the ‘high-end’ segment of the relevant market and information extracted from documents produced by the applicant during the ordinary course of its business, was credible and consistent. On the basis of the body of evidence thus gathered, the Commission was justified in concluding, in recitals 447 and 448 of the contested decision, that the industrial customers’ qualification processes and their tendency to preserve business relationships that they had already established with their suppliers were a barrier for new competitors to entry to that market, with only Sofia Med having successfully penetrated it recently, on account of an alliance with Dowa Metaltech.
194    Moreover, the applicant itself had stated, in paragraph 297 of the Form CO, not only, as previously stated in paragraph 181 above, that ‘the only entry barriers [were] created by the customers themselves’, since
‘some of them [required] their suppliers to meet strict product specifications’, but also that ‘product qualification sometimes [involved] one or more audits of the [industrial] customer’s production facilities, the development of a rolled copper product meeting the [industrial] customer’s product specifications, the production of test batches of such products, as well as field testing of the supplier’s products’.
195    In the light of all the foregoing considerations, the present complaint must be rejected as unfounded.
196    Lastly, the applicant states that it had shown that, in reality, the barriers to entry to the relevant market were low and the costs of such an entry did not play a significant role, in so far as it was not necessary to have special production equipment or to produce special alloys so as to be able to meet the production standards existing on the relevant market, as established by the report on the supply-side substitutability of rolled products enabled by EN standards, which it had sent to the Commission on 13 September 2018.
197    In that regard, the Commission observed, in recitals 419 to 424 of the contested decision, that it understood, in particular in the light of slide 2 of the report on the supply-side substitutability of rolled products enabled by EN standards, those standards to represent minimum requirements to be met in order to operate on the relevant market. Moreover, in recitals 419 and 421 of the contested decision, the Commission referred to several items of evidence, which were based on testimonies originating directly from industrial customers purchasing different types of rolled products belonging to the ‘high-end’ segment of the relevant market.
198    On the basis of the body of credible and consistent evidence thus gathered, the Commission was justified in taking the view that the fact, acknowledged in recitals 111 and 420 of the contested decision, that all competitors were able to meet the EN standards did not mean that they were able to operate in the ‘high-end’ segment of the relevant market, where the industrial customers had specifications which were a lot more demanding and required customised products.
199    For those reasons, the present complaint must be rejected as unfounded.
200    Since all the complaints raised in support of the second limb of the third part of the fifth plea in law have thus been rejected, that limb must itself be rejected.
(c)    The third limb of the third part of the fifth plea in law
201    In the context of the third limb of the third part of the fifth plea, the applicant claims that, in Section 6.4.3 of the contested decision, the Commission committed a manifest error of assessment in finding, incorrectly, that there were capacity constraints in the alleged segment for ‘high-end’ rolled products.
202    According to the applicant, the Commission’s assessment, set out in the contested decision, according to which there were capacity constraints in the alleged segment for ‘high-end’ rolled products, did not reflect the reality on the relevant market, which was an overall market. According to the applicant, the Commission conceded there were overcapacities on that market which freed up production capacity overall. The Commission assumed that the competitors could not adapt rapidly their product portfolio, namely the mix of products that they manufactured, without having gathered relevant data in that regard, as it had been urged to do by the applicant and as required by the case-law.
203    The applicant asserts that the Commission in essence relied on two internal documents of ARP, which were misleading, because they referred to investments in equipment intended not to increase production, but to secure it (back-up equipment, in case of failure), or to extend production time as a result of new requirements, concerning the thinness of the rolled products supplied, on the part of industrial customers.
204    The Commission disputes the applicant’s arguments and contends that the third limb of the third part of the fifth plea should be rejected as unfounded.
205    In recitals 450 and 463 of the contested decision, the Commission stated that, while the segment for ‘low-end’ or ‘commoditised’ rolled products suffered from overcapacities, that was not the case for the segment for ‘high-end’ rolled products, in which there were limited spare production capacities, on account of the high demand for those products and the fact that their manufacturing required special machinery and specific know-how. In that way, the competitors of the parties to the concentration at issue in that segment would not be able to react aggressively to the applicant increasing prices. It is apparent from those recitals that, in order to conclude that there were capacity constraints in the segment for ‘high-end’ rolled products, the Commission relied on a set of assessments and items of evidence, only some of which have been expressly disputed by the applicant.
206    In so far as the applicant criticises, in essence, the Commission for not having evaluated the capacity constraints at the level of the relevant market, which was the overall market for rolled products, it is sufficient to note that, having regard to the examination which the Commission was called upon to carry out on the basis of Article 8(3) of Regulation No 139/2004, as interpreted by the case-law (see judgment of 9 March 2015, Deutsche Börse v Commission, T‑175/12, not published, EU:T:2015:148, paragraph 62 and the case-law cited), it was justified, in the present case, in taking account of the fact that, on the relevant market, different competitive dynamics were at play depending on the market segments concerned (see paragraphs 34 to 42 above) and that, in particular and as was apparent from the body of evidence which it had gathered, as described in recitals 451 to 463 of the contested decision, the segment for ‘high-end’ rolled products was characterised by production constraints linked, inter alia, to growing demand from industrial customers for that type of product which had been established by the Commission in recitals 282 to 284 of the contested decision. Moreover, the Commission was justified in focusing its analysis of the effects of the concentration at issue on the segment for ‘high-end’ rolled products, since it had previously found that it was in that segment of the relevant market or sub-segments belonging, essentially, to that segment, where the applicant focused its activities and where the activities of the parties to the concentration at issue overlapped, that the anticompetitive effects of the concentration at issue would be most significant (see paragraphs 69 to 73 above).
207    That conclusion was further supported by the statements of the parties to the concentration at issue, in the internal or public documents, cited in recitals 286 and 287 of the contested decision, which confirmed the dichotomy existing, on the relevant market, between the segment for ‘commoditised’ rolled products, characterised by production ‘overcapacity’, and the segment for ‘specialised’ rolled products, marked by ‘capacity constraints’.
208    Consequently, the present complaint must be rejected as unfounded.
209    In so far as the applicant criticises the Commission, first, for its interpretation of ARP’s internal documents reproduced in Figures 41 and 42 set out in recital 453 of the contested decision, second, for failing to take account of the fact that demand for ‘low-end’ or ‘commoditised’ rolled products was decreasing and the fact that there were spare production capacities in that segment – as had been found in recitals 282, 285 and 450 of the contested decision – which could be used in order to produce ‘high-end’ rolled products, and, third, for relying on ‘qualitative’ rather than ‘quantitative’ information, it must be stated that the Commission responded, in that decision, to similar objections put forward by the applicant, respectively, in paragraphs 106, 94, 9 and 10 of its reply to the statement of objections.
210    First of all, in response to the first complaint made by the applicant, the Commission rejected, in recital 453 of the contested decision, the applicant’s explanations concerning the first document, according to which that document did not relate to a production capacity issue, but to a lack of back-up equipment for rolling mill 1851 of ARP’s Stolberg plant, and the explanations concerning the second document, according to which that document concerned only the increase in utilisation time of rolling mills of the Stolberg plant, for the purpose of satisfying demand for certain ‘high-end’ rolled products, by stating that those explanations did not contradict its assessments that those documents revealed ARP’s capacity constraints. The Commission pointed out that the second document explained very clearly that the optimisation measures put in place by ARP ‘[would] be by far not enough to satisfy [demand for rolled products for] thin gauge connector[s] …’. According to the Commission, the explanations given by the applicant established that ARP had to optimise and secure its production capacity, faced with the risk or threat of not being able to satisfy demand for certain ‘high-end’ rolled products, which highlighted the capacity constraints it faced in that segment of the relevant market.
211    Next, in response to the second complaint made by the applicant, the Commission stated, in recitals 460 and 461 of the contested decision, that the spare production capacities in the ‘low-end’ or ‘commoditised’ segment could not be converted par-for-par, in so far as ‘high-end’ rolled products required generally more production capacities than ‘low-end’ or ‘commoditised’ rolled products. It referred to a statement made by the applicant in the course of the administrative proceedings, indicating that the time to manufacture a rolled product made of HPAs was double or triple that to manufacture a standard brass rolled product. Moreover, it recalled that it was apparent from the substantiated analyses that it had carried out in Sections 6.4.2, 6.4.4 and 6.5.2 of the contested decision that competitors who were mainly active in the ‘low-end’ or ‘commoditised’ segment of the relevant market generally had a limited range of ‘high-end’ rolled products to offer and had to qualify successfully their products with the industrial customers and build a lasting relationship with them, which further limited their ability to transfer spare capacities from the ‘low-end’ or ‘commoditised’ segment of the relevant market to the ‘high-end’ segment of that market.
212    Lastly, in response to the third complaint made by the applicant, the Commission asserted, in recital 462 of the contested decision, that the production capacities of each producer depended on its product portfolio and, in particular, on the proportion of ‘high-end’ rolled products in it, so that it was very difficult, if not impossible, to calculate a producer’s production capacities and to compare them to those of another producer. Moreover, according to the Commission, it was apparent from the internal documents of the parties to the concentration at issue that those parties were not attempting to calculate the used or spare production capacities of their competitors, either, but that they were making qualitative assessments thereof. In addition, the Commission claimed that such calculations were not meaningful, since they were only a snapshot in time of the competitors’ capacities.
213    In the context of the present action, the applicant has merely reproduced, as regards the present complaints, the line of argument set out in its reply to the statement of objections and has not put forward any precise or substantiated arguments such as to call into question the merits of the substantiated assessments that the Commission provided in response, as required by the case-law (see paragraph 121 above).
214    Consequently, those complaints must be rejected as unfounded.
215    Since all the complaints put forward in support of the third limb of the third part of the fifth plea in law have thus been rejected, that limb has no basis and must itself be rejected.
(d)    The fourth limb of the third part of the fifth plea in law
216    In the context of the fourth limb of the third part of the fifth plea, the applicant claims that, in Section 6.4.4 of the contested decision, the Commission committed a manifest error of assessment in understating the competitive constraint exercised by its competitors.
217    The fourth limb of the third part of the fifth plea is divided into three complaints, by which the applicant claims that the Commission understated the competitive constraints exercised on the relevant market by, respectively, KME/MKM, Sofia Med, and other competitors.
218    The Commission disputes the applicant’s arguments and contends that the fourth limb of the third part of the fifth plea, divided into three complaints, should be rejected as unfounded.
(1)    The first complaint, alleging that the Commission understated the competitive constraint exercised by KME/MKM on the relevant market
219    According to the applicant, the assessment according to which KME/MKM did not exert sufficient competitive constraint on the parties to the concentration at issue on the relevant market contradicted the reasons which led the Commission to open an investigation in Case M.8909, giving rise to the KME/MKM decision. The Commission relied on internal documents of the parties to the concentration at issue in which those parties evaluated their competitors on the relevant market, instead of referring to the vast amounts of data on those competitors’ sales volumes which it had collected for its market reconstruction. Moreover, it downplayed the competitive constraint exercised by MKM, on the ground that MKM did not have its own tinning line, even though, on account of the existence of numerous electroplating subcontractors, that would not prevent it from meeting the surface treatment demands of industrial customers in the ‘high-end’ segment of the relevant market. In any event, in accordance with the ‘priority rule’, previously referred to in paragraph 126 above, the Commission should have focused on the situation arising from the concentration between KME and MKM, taking account of the synergy effects linked to it. KME/MKM would be a strong competitor on the relevant market, including in the alleged ‘high-end’ segment thereof, as it would be able to shift its entire production of ‘high-end’ rolled products to MKM’s Conti-M® line.
220    The Commission disputes the applicant’s arguments and contends that the first complaint of the fourth limb of the third part of the fifth plea should be rejected as unfounded.
221    In recitals 473 to 485 of the contested decision, the Commission found that KME/MKM would admittedly create a larger fully integrated competitor on the relevant market, with a market share of [20-30]%, in volume terms. However, while it was possible that that might improve KME/MKM’s competitiveness, mainly in the ‘low-end’ or ‘commoditised’ segment of the relevant market, where KME and MKM’s activities overlapped, a number of factors would impact, according to the Commission, the new entity’s ability to compete with the parties to the concentration at issue, in particular in the ‘high-end’ segment of that market.
222    First of all, the applicant submits that the Commission’s assessment according to which KME/MKM would have neither the ability nor the incentive to counter price increases orchestrated by the applicant in the ‘high-end’ segment of the relevant market, following the concentration at issue, is at odds with the content of a press release, reference No IP/18/4642, which the Commission had published on 23 July 2018 concerning its decision to initiate in-depth investigation proceedings in Case M.8909 – KME/MKM; in that press release, the Commission stated that it was concerned that, ‘for rolled copper products, and notably for pure copper and some specific copper alloys, the elimination of competition between [KME and MKM] could lead to higher prices’ and that MKM, which was ‘also active in the supply of pre-rolled strip’, ‘could make access to [that] important input more costly or difficult for KME’s competitors’.
223    In that regard, it should be noted that, in accordance with the case-law cited in paragraphs 78 and 79 above, it is for the applicant to show in what way the assessments in the contested decision are, in themselves and independently of those set out in a previous decision, incorrect.
224    In any event, the passages of the press release to which the applicant points relate to a decision adopted by the Commission under Article 6(1)(c) of Regulation No 139/2004. In such a decision, the Commission confines itself to confirming the serious doubts which it continues to entertain as to the compatibility of a concentration transaction with the internal market and, as a result, to opening the in-depth investigation proceedings that would enable it definitely to resolve that issue (see, to that effect and by analogy, order of 31 January 2006, Schneider Electric v Commission, T‑48/03, EU:T:2006:34, paragraph 78). The assessments to which the applicant refers therefore corresponded to an intermediate position of the Commission which, moreover, was not in line with its final position, since, in the KME/MKM decision, it ultimately authorised, unconditionally, the concentration that had been notified to it (see paragraph 10 above).
225    Furthermore, the Commission’s assessments to which the applicant refers do not explain in what way KME/MKM would be able to counter price increases orchestrated by the applicant in the ‘high-end’ segment of the relevant market, following the concentration at issue, or what incentive it would have to do so.
226    The present complaint must thus be rejected as unfounded.
227    Next, the applicant criticises, in essence, the Commission for having relied on qualitative information from internal documents of the parties to the concentration at issue, rather than on the vast amounts of quantitative data that it had collected during the administrative proceedings.
228    In that regard, it should be noted that the Commission was justified, having regard to the case-law previously cited in paragraphs 116 and 120 above, in relying on a body of evidence that was essentially qualitative in nature, particularly since it was not possible, on the relevant market, which was a highly differentiated product market, depending on a great number of criteria (see paragraph 39 above), to draw a clear distinction between rolled products belonging to the ‘high-end’ segment and those belonging to the ‘low-end’ or ‘commoditised’ segment of that market.
229    Consequently, the present complaint must be rejected as unfounded.
230    In so far as the applicant criticises the Commission for having downplayed the competitive constraint exercised by MKM, on the ground that MKM did not have its own tinning line, even though, on account of the existence of numerous electroplating subcontractors, that would not prevent it from meeting the surface treatment demands of industrial customers in the ‘high-end’ segment of the relevant market, first, it should be noted that the Commission did not base its conclusions on that item of evidence alone, but on all of the evidence and indicia referred to in recital 478 of the contested decision.
231    Second, the Commission set out, in recital 440 of the contested decision, the reasons why HDT was necessary in order to meet the demands of certain industrial customers, such as those in the automotive industry. The applicant has not put forward any precise and substantiated arguments such as to call into question the merits of those assessments, as required by the case-law (see paragraph 121 above).
232    For those reasons, the present complaint must be rejected as unfounded.
233    In so far as the applicant criticises the Commission for failing to take account of the new merged entity KME/MKM and the synergy effects which would follow as a result of the concentration in question, it should be noted that it was only after examining KME/MKM’s situation, in recitals 473 to 485 of the contested decision, that, in recitals 486 to 489 of that decision, the Commission stated, in the alternative, that an individual assessment of the situation of KME and MKM would not lead to a different outcome.
234    Furthermore, in recitals 479 to 485 of the contested decision, the Commission specifically set out the reasons why it took the view that the synergy effects or efficiency gains generated as a result of the concentration transaction between KME and MKM did not lead to the conclusion that KME/MKM would be able to counter price increases orchestrated by the applicant in the ‘high-end’ segment of the relevant market, following the concentration in question, or would have the incentive to do so.
235    Lastly, the applicant’s claim that KME would be able to shift its entire production of rolled products made of pure copper to MKM’s ContiM® line, in order to become a much stronger player in all segments of the relevant market, is suggesting, in essence, that KME would thus be able to free up production capacity in respect of ‘low-end’ or ‘commoditised’ rolled products in order to manufacture more ‘high-end’ rolled products. It must be stated that the applicant has not been able, in the context of the present action, to call into question the merits of the Commission’s assessments according to which, first, the production capacities at issue could not be converted par-for-par and, second, KME’s difficulties were not linked to capacity constraints, but to weak capabilities to meet industrial customers’ demands as regards pricing, quality, technological capability and research and development, as stated in recital 481 of the contested decision.
236    Therefore, the present complaint must be rejected as unfounded.
237    Since all the complaints put forward in support of the first complaint of the fourth limb of the third part of the fifth plea in law have thus been rejected, that complaint has no basis and must be rejected.
(2)    The second complaint, alleging that the Commission understated the competitive constraint exercised by Sofia Med on the relevant market
238    The applicant states that, even though the Commission acknowledged that Sofia Med was growing on the relevant market, since its worldwide sales grew by [60-70]% between 2015 and 2016, it found that that company was not yet a credible competitor in the alleged ‘high-end’ segment of that market. In that regard, the Commission’s analysis relied on a single outdated, and consequently, obsolete document of ARP. The applicant claims that the majority of available sources confirmed Sofia Med’s fast entrance and the strong competitive constraint it exercised on the relevant market, including in the alleged ‘high-end’ segment thereof. The Commission downplayed the competitive constraint exercised by Sofia Med, in failing to take account of the comparative advantage the latter had on account of the relative labour costs which, in Bulgaria, were seven times less than those in Germany. It took the view, incorrectly and without carrying out sufficient investigations, that transport costs between Bulgaria and the industrial customers’ plants were a significant comparative disadvantage for Sofia Med.
239    The Commission disputes the applicant’s arguments and contends that the second complaint of the fourth limb of the third part of the fifth plea should be rejected as unfounded.
240    In so far as the applicant submits that the Commission contradicted itself, in finding that, on the one hand, Sofia Med was growing on the relevant market and, on the other, that it was not yet a credible competitor in the alleged ‘high-end’ segment of that market, it must be observed that, in recitals 491 and 492 of the contested decision, the Commission found, having regard to the specific barriers to entry and expansion in the ‘high-end’ segment of the relevant market, in particular those linked to the industrial customers’ demanding qualification processes in that segment, that Sofia Med’s strong growth on the relevant market, taken as a whole, did not reflect its capacity to compete with the parties to the concentration at issue on a comparable footing in that segment, and even less so since its market shares were much smaller than the market shares of those parties.
241    Having regard to the reasoning thus provided by the Commission, it cannot be considered that the Commission contradicted itself as regards the matters to which the applicant points.
242    Consequently, the present complaint must be rejected.
243    In so far as the applicant alleges that the Commission’s analysis relied exclusively on an internal document that was outdated, and consequently obsolete, of ARP, it must be stated that that does not reflect the exact content of recitals 491 and 492 of the contested decision, which relied also on the finding that Sofia Med’s market shares were still limited in relation to those of the parties to the concentration at issue and that Sofia Med’s growth on the relevant market, taken as a whole, did not reflect its capacity to compete with those parties on a comparable footing in the segment for ‘high-end’ rolled products, having regard to the specific barriers to entry and expansion in that segment.
244    Concerning the complaint alleging that the majority of available sources confirmed Sofia Med’s fast entrance and the strong competitive constraint it exercised on the relevant market, including in the alleged ‘high-end’ segment thereof, it should be noted that, in that regard, the applicant refers exclusively to the conclusions set out on page 8 of the report of CU2 Consulting from 2018, annexed to the Form CO, stating that ‘Sofia Med … [had] registered a very robust acceleration in sales [of rolled products] for industrial applications’, that, ‘during 2018, Sofia Med [expected] to maintain a double-digit growth for the third consecutive year and to affirm itself as a reference supplier for the automotive industry’, and that ‘the Bulgarian facility also [pointed] to increase its market share in high-value added products (e.g. [rolled products made of] HPAs for connectors)’.
245    While those conclusions confirmed Sofia Med’s growth on the relevant market, taken as a whole, and its presence in the segment for ‘high-end’ rolled products, it was not possible to infer from them that Sofia Med was already able to compete with the parties to the concentration at issue on a comparable footing in that segment, having regard to the specific barriers to entry and expansion in that segment.
246    Consequently, the present complaint must be rejected.
247    In so far as the applicant criticises the Commission for having downplayed the competitive constraint exercised by Sofia Med, in failing to take account of the comparative advantage the latter had on account of its location in Bulgaria, where labour costs were seven times less than those in Germany, it must be stated that, in recital 493 of the contested decision, the Commission merely responded to a claim made by the applicant according to which Sofia Med had a comparative advantage over the parties to the concentration at issue on account of its location in Bulgaria.
248    The Commission confined itself, in essence, to calling into question the merits of that claim by stating that it was not substantiated by precise data on Sofia Med’s labour costs and that, moreover, Sofia Med’s location in Bulgaria had some comparative disadvantages, linked to the transport costs between Bulgaria and the industrial customers’ plants and, more generally, the distance between its production sites and those plants, having regard to the industrial customers’ habits.
249    In the present case, it is apparent from the Commission’s objections that the applicant did not furnish, as required by the case-law (see paragraph 121 above), sufficient evidence for a finding that Sofia Med’s location enabled it to compete with the parties to the concentration at issue on a comparable footing in the ‘high-end’ segment of the relevant market.
250    In addition, the applicant has not disputed the responses of the industrial customers to the market investigation, cited in recital 493 of the contested decision, according to which the majority of them purchased their supply from a distance of between 250 and 1 500 km from their production plants, which was an indication that Sofia Med suffered a competitive disadvantage on account of its location close to the EEA periphery.
251    Consequently and having regard to the rejection of the other pleas in law or complaints that also address that matter in the context of the present action, in particular those set out in the first part of the third plea, the present complaint must be rejected as unfounded.
252    Since all the arguments put forward in support of the second complaint of the fourth limb of the third part of the fifth plea in law have thus been rejected, that complaint has no basis and must be rejected.
(3)    The third complaint, alleging that the Commission understated the competitive constraint exercised by other competitors on the relevant market
253    According to the applicant, the Commission’s cursory assessments of the competitive constraint exercised by competitors other than KME/MKM and Sofia Med showed that it failed to take sufficient account of their importance, in particular in the alleged segment for ‘high-end’ rolled products. According to Kemper’s website, that company is one of the leaders in the segment for belts made of copper and copper alloys for automotive and electrical applications. The Commission downplayed the competitive constraint exercised by such competitors, on the sole ground that they were supplied with pre-rolled strip by Schwermetall.
254    The Commission disputes the applicant’s arguments and contends that the third complaint of the fourth limb of the third part of the fifth plea should be rejected as unfounded.
255    In so far as the applicant criticises the cursory nature of the Commission’s assessments of the competitive constraint exercised by competitors other than KME/MKM and Sofia Med, it should be noted that those assessments relied on a body of evidence referred to in recitals 495 to 505 of the contested decision, from which it was apparent that, among the other competitors, only Kemper and Diehl were close to the parties to the concentration at issue in the segment for ‘high-end’ rolled products, in particular rolled products for connectors. Nevertheless, in so far as those competitors were dependent on Schwermetall for their pre-rolled strip supplies, in particular pre-rolled strip used for the manufacturing of their rolled products made of HPAs, they would not be able to counter price increases orchestrated by the applicant, following the concentration at issue, in the ‘high-end’ segment of the relevant market.
256    It follows that the Commission’s assessments, even if they were concisely set out in some recitals, made clear the reasons why it took the view that certain competitors were not in a position to counter price increases orchestrated by the applicant, following the concentration at issue, in the segment for ‘high-end’ rolled products. The applicant has thus been able to dispute them as to their substance and the Court to review their merits.
257    The complaint as regards the cursory nature of the Commission’s statement of reasons must therefore be rejected.
258    In so far as the applicant states that Kemper indicated on its website that its rolled products put the company ‘amongst the industry leaders for the production of copper and alloy belts for automotive and electrical applications’, it does not establish in what way the finding that Kemper was also an important and close competitor of the parties to the concentration at issue in the segment for belts made of copper and copper alloys for automotive and electrical applications would be such as to alter the Commission’s finding, set out in recital 505 of the contested decision, that Kemper was dependent on Schwermetall for its pre-rolled strip supplies and the conclusions that the Commission drew as a result.
259    That complaint must thus also be rejected as ineffective.
260    As regards the criticism directed by the applicant at the Commission, according to which the latter, in essence, overstated the consequences to be drawn from some competitors’ dependence on pre-rolled strip supplies from Schwermetall, it should be observed that the applicant has not put forward any items of evidence or indicia to demonstrate that price increases of pre-rolled strip that those competitors purchase from Schwermetall would not impede their competitiveness on the relevant market, situated downstream, inciting them to follow, rather than counter, price increases orchestrated by the applicant, following the concentration at issue, in the segment for ‘high-end’ rolled products.
261    The present complaint must thus be rejected as unfounded.
262    Since all of the arguments put forward in support of the third complaint of the fourth limb of the third part of the fifth plea in law have thus been rejected, that complaint has no basis and must be rejected, with the result that that limb is rejected in its entirety.
263    Accordingly, all the criticisms made by the applicant, in the context of the fourth limb of the third part of the fifth plea, in respect of Section 6.4.4 of the contested decision, must be rejected, with the result that, ultimately, the applicant has not succeeded in calling into question the analysis carried out by the Commission in Section 6.4 of that decision.
264    Having regard to all the foregoing considerations, the third part of the fifth plea in law must be rejected, and, accordingly, that plea must be rejected in its entirety.
F.      The sixth plea in law, alleging manifest errors of assessment as regards the existence of sufficient possibilities, for the industrial customers, to switch suppliers on the relevant market
265    By the sixth plea in law, the applicant argues that there were several manifest errors of assessment vitiating the finding, made in Section 6.5 and, accordingly, in recitals 508 to 587 of the contested decision, that industrial customers would have limited possibilities, following the concentration at issue, to switch suppliers of rolled products, in particular in the ‘high-end’ segment of the relevant market, where the activities of the parties to the concentration at issue overlapped.
266    That plea is divided into three parts.
267    Before examining the arguments raised by the applicant in support of the sixth plea and its three parts, it is important to recall that, in recital 508 of the contested decision, after having cited paragraph 31 of the Guidelines on the assessment of horizontal mergers concerning the possibility, for customers of parties to a concentration transaction, of switching suppliers, the Commission found, on the basis of the detailed analyses set out in Sections 6.5.1 to 6.5.3 of that decision, that, in the segment for ‘high-end’ rolled products, it was difficult for the industrial customers of the parties to the concentration at issue to switch demand to competitors, on account of the low number of those competitors and the substantial costs of such switching. Moreover, in Section 6.5.4 of the contested decision, it found that the report analysing the determining factors as regards switching suppliers, submitted by the parties to the concentration at issue during the administrative proceedings, did not substantiate their claims that switching suppliers was easy on the relevant market.
1.      The first part of the sixth plea in law
268    By the first part of the sixth plea, the applicant claims that the Commission committed a manifest error of assessment in finding, in Section 6.5.2 of the contested decision, that the industrial customers’ qualification processes, which were sometimes lengthy and demanding, impeded their ability to switch suppliers in the ‘high-end’ segment of the relevant market.
269    The Commission disputes the applicant’s arguments and contends that the first part of the sixth plea should be rejected as unfounded.
270    In Section 6.5.2 of the contested decision, the Commission observed that the non-confidential responses of the industrial customers to the market investigation revealed that the large majority of them had not switched suppliers, for the entirety or a significant part of their purchase volume of rolled products, over the three preceding years, since, in general, such switching appeared to be a veritable challenge, in particular in the segment for ‘high-end’ rolled products where the qualification processes were sometimes lengthy and demanding. Thus, according to the four industrial customers quoted in recital 520 of the contested decision, the processes could take a lot of effort, time and money where those customers had particular requirements. In addition, the industrial customers in the fields of connectivity, electrical engineering, and energy/signal referred to in recitals 527 and 529 to 531 of the contested decision stated that the qualification processes were lengthy, intense and costly in the ‘high-end’ segment or sub-segments belonging, essentially, to that segment and that for them it was essential to establish long-term business relationships with their suppliers.
271    In recital 532 of the contested decision, the Commission found that it was necessary to take account not only of the fact that there had been no new entry on the relevant market over the preceding three years, but also that the majority of industrial customers had not switched suppliers or were reluctant to do so, due to the financial and operational risks associated with such switching, in particular those linked to the qualification processes and the possible negative reaction of their own customers.
272    Lastly, in recitals 534 to 537 of the contested decision, the Commission referred to an internal document drawn up by the applicant in the ordinary course of its business, information extracted from the report analysing the determining factors as regards switching suppliers and non-confidential responses of certain industrial customers to the market investigation, which established that the re-qualification processes of already existing rolled product lines remained demanding in the ‘high-end’ segment of the relevant market or sub-segments belonging, essentially, to that segment, such as the sub-segment for rolled products for the automotive industry.
273    In so far as the applicant submits that the responses to the market investigation clearly demonstrated that industrial customers could easily switch suppliers in all segments of the relevant market and, moreover, that they did so in practice, it relies, first, on MKM’s non-confidential response stating that ‘it [was] a commodity market with significant excess capacity’ and that ‘customers [could] exchange suppliers easily’.
274    In that regard, it should be noted that, in response to a similar objection of the applicant in paragraph 122 of its reply to the statement of objections, the Commission stated, in recital 523 of the contested decision, that MKM was above all active in the ‘low-end’ or ‘commoditised’ segment of the relevant market, which had different characteristics, from a competitive standpoint, than the ‘high-end’ segment of that market. The applicant has not called into question that assessment, which, moreover, was corroborated by the rest of MKM’s reply, from which it was apparent that, ‘only for some few selected [rolled products made of] [HPAs], customers had limited choice’ and that it itself ‘[was] not active in [that] product range’.
275    It must therefore be stated that MKM’s response reflected the situation prevailing in the ‘low-end’ or ‘commoditised’ segment of the relevant market and did not undermine the Commission’s findings, set out in Section 6.5.2 of the contested decision, relating essentially to the ‘high-end’ segment of that market.
276    Second, the applicant referred to TE Connectivity’s non-confidential response, in which the latter stated that it ‘[had] switched products between [the applicant] and ARP, as well as other suppliers’.
277    In that regard, it should be noted that, in response to a similar objection of the applicant in paragraph 123 of the reply to the statement of objections, the Commission stated, in essence, in recital 523 of the contested decision, that the situation of TE Connectivity, which was one of the largest global participants in the connectivity industry, was not representative of the situation of the majority of industrial customers, as was apparent from the market investigation.
278    The applicant has merely argued that that assessment of the Commission concerning TE Connectivity showed the Commission’s desire to downplay the responses to the market investigation which contradicted its assessments.
279    As is apparent from recital 520 of the contested decision, in Section 6.5.2 thereof, the Commission merely stated that a large majority of industrial customers had not switched suppliers for the entirety or a significant part of their rolled product purchase volume, which was without prejudice to the fact that a minority of those customers, in particular those which, like TE Connectivity, had a large market share in their industry sector and, accordingly, strong bargaining power vis-à-vis their various suppliers, could or could have done so or the fact that all industrial customers could, in that regard, make some marginal adjustments.
280    It must therefore be stated that TE Connectivity’s response reflected the situation of a minority of industrial customers and did not undermine the Commission’s findings, set out in Section 6.5.2 of the contested decision, relating essentially to the situation of the majority of industrial customers in the ‘high-end’ segment of the relevant market.
281    Third, the applicant referred to the non-confidential responses of other industrial customers to the market investigation which were in particular active in the segment for ‘high-end’ rolled products and, specifically, to the response of Arup Alu-Rhor U-Profil GmbH, stating that, for engine cooling systems, ‘switching suppliers [was] not a problem [and could] be done very fast’, from which, according to the applicant, it followed that numerous other industrial customers had submitted that they had switched suppliers.
282    In that regard, it is important to note that, in response to an identical objection of the applicant, the Commission stated that the ‘numerous’ industrial customers to which the applicant referred were, in reality, 11 out of 58 respondents to the market investigation. According to the Commission, those customers did not claim that they had switched suppliers, but that they had switched purchase volumes between the applicant and ARP, at one point of time in the past, which would indicate that the applicant and ARP were close competitors. The Commission stated that that did not alter the finding that the majority of industrial customers had not drastically switched suppliers, for the entirety or a significant part of their purchase volume, in the preceding three years, as set out in recital 520 of the contested decision. Moreover, it pointed out that small order volumes could be switched from one supplier to another in the context of qualification processes, in order to test the products of potential new suppliers.
283    Furthermore, in recital 525 of the contested decision, the Commission stated that, in so far as the applicant referred, in particular, to the responses to the market investigation of certain industrial customers active in the fields of engine cooling, building or ordnance, it disregarded the fact that the majority of customers in those industries considered supplier qualification to be a difficult, even if not insurmountable, stage. Concerning the specific response of Arup Alu-Rhor U-Profil, the Commission stated that that company was in a particular situation, in so far as, as was apparent from the responses to the market investigation, ‘[its] customer [wanted] only material from Aurubis’. Lastly, the Commission stated that the industrial customers active in the fields of engine cooling, building or ordnance generally ordered, rather than ‘high-end’ rolled products, ‘commoditised’ rolled products, in respect of which the barriers to switching suppliers were lower, which could have influenced their responses.
284    The applicant has merely reproduced the objections raised in its reply to the statement of objections, without taking issue with the assessments in the Commission’s response in recital 525 of the contested decision, which provided the reasons why the responses of other industrial customers, to which the applicant points, had to be qualified in so far as they did not take account of the precise situation of the majority of industrial customers active in the ‘high-end’ segment of the relevant market.
285    As the Commission has correctly stated in its pleadings, those responses did not change the fact that 68% of the industrial customers that responded to question 26 of questionnaire Q1 of the market investigation confirmed that they had not switched suppliers of rolled products over the preceding three years. In addition, the majority of the industrial customers that responded to questions 22 to 25 of questionnaire Q4.1 and questions 23 to 26 of questionnaires Q4.2 to Q4.8 of that investigation observed that qualification processes had been arduous, or sometimes even insurmountable, for competitors, over the preceding five years.
286    In any event, as the Commission correctly observed, the responses to the market investigation to which the applicant refers highlighted above all supplier switching between the parties to the concentration at issue, which would not be possible following that concentration. In addition, Arup Alu-Rhor U-Profil’s response indicated also that any supplier switching could be complicated, since, ‘when [it would] change the supplier [it had to] qualify [that supplier]’ with its customers, of whose processes it had no knowledge. Lastly, it was apparent from the responses of customers in the metal goods industry to questions 23 to 26 of questionnaire Q4.6 of the market investigation that those customers favoured above all long-term relationships with their rolled product suppliers.
287    In the light of the foregoing, it must be stated that those responses did not undermine the Commission’s assessment, in Section 6.5.2 of the contested decision, according to which a majority of industrial customers active in the ‘high-end’ segment of the relevant market had not switched suppliers, for the entirety or a significant part of their rolled product purchase volume, over the preceding three years.
288    In so far as the applicant takes issue with the Commission’s assessments, in recital 520 of the contested decision, according to which the qualification processes discouraged industrial customers from switching suppliers, as those processes were sometimes lengthy and demanding, in particular in the ‘high-end’ segment of the relevant market, the applicant essentially refers to the fact that the non-confidential response of Alcatel Submarine Networks to question 26.2 of questionnaire Q.1 of the market investigation, cited by the Commission, did not confirm that the qualification processes were lengthy, when read jointly with that company’s response to question 27 of that questionnaire, in which it stated that the duration of such processes was a month and a half.
289    In that regard, it should be noted that, while, as the Commission stated, Alcatel Submarine Networks had responded that ‘qualification of a new supplier is a long process’, it had also indicated that such a process generally lasted ‘1.5’ months.
290    Such inconsistency could cast doubt on the exact meaning of Alcatel Submarine Networks’ responses and, accordingly, on the credibility of the only statement of that company used by the Commission. Nevertheless, that statement was only one of the items of evidence or indicia taken into account by the Commission, in recitals 520, 527 and 529 to 531 of the contested decision (see paragraph 270 above), in order to conclude that the qualification processes were lengthy, intense and costly in the ‘high-end’ segment or sub-segments belonging, essentially, to that segment.
291    The Commission’s assessments, substantiated in that manner, cannot be called into question on the basis of a single indicium, the credibility of which is weakened, in accordance with the case-law cited in paragraph 120 above.
292    Likewise, in so far as the applicant criticises the Commission that, in order to conclude, in recital 527 of the contested decision, that the qualification processes of the industrial customers could be lengthy, in particular in the ‘high-end’ segment of the relevant market, it prioritised the responses of some industrial customers in the connectivity sector to the market investigation which confirmed its assessments and discounted other responses which would have undermined those assessments, such as the responses of Arup Alu-Rhor U-Profil, Ferd. Haecker KG, Silca SpA and Lumberg Connect GmbH, it must be stated that, among the four customers to which the applicant has referred, two, namely Arup Alu-Rhor U-Profil and Silca were not active in the connectivity sector but in the fields of engine cooling, building and ordnance or metal goods, which used more ‘low-end’ or ‘commoditised’ rolled products. Next, one of the customers cited, namely Ferd. Haecker, referred to qualification processes of a duration varying from one to six months and costs which were a priori difficult to assess, which showed that, in some cases, those processes could be lengthy and that their financial impact was uncertain. Only Lumberg Connect’s response indicated unequivocally that its qualification processes were short, since they had a duration of about a week, each year, for each of its suppliers and that that duration was not decisive.
293    The Commission relied on the responses to question 21 of questionnaires Q4.2, Q4.4 and Q4.5 of the market investigation of five industrial customers, three of which were active in the connectivity sector and one in the electrical engineering sector, which purchased primarily ‘high-end’ rolled products, and of another industrial customer in the energy/signal sector, which ordered rather ‘low-end’ or ‘commoditised’ rolled products, which stated that their qualification processes were lengthy. Moreover, those responses were additional to the other items of evidence or indicia referred to in recitals 520 and 529 to 531 of the contested decision (see paragraph 270 above), from which it was apparent that, on the relevant market and, in particular, in the segment for ‘high-end’ rolled products, industrial customers’ qualification processes could sometimes be lengthy and that the industrial customers preferred to establish long-term business relationships with their suppliers.
294    The Commission cannot therefore be criticised for having, after weighing those various items of evidence or indicia that it had gathered during the administrative proceedings, found that, even if qualification processes varied in duration on the relevant market, those processes could be lengthy and demanding, in particular in the ‘high-end’ segment of that market, where they constituted a barrier for competitors to enter or expand rapidly and easily in that segment.
295    Since all the complaints made in support of the first part of the sixth plea in law have thus been rejected, that part must be rejected as unfounded.
2.      The second part of the sixth plea in law
296    By the second part of the sixth plea, the applicant argues that the Commission erred, in Section 6.5.3 and, accordingly, in recitals 539 to 548 of the contested decision, in taking the view that the industrial customers’ multi-sourcing strategies further limited their possibilities of turning to other rolled product suppliers.
297    The Commission disputes the applicant’s arguments and contends that the second part of the sixth plea should be rejected as unfounded.
298    The applicant claims that the Commission’s conclusions as regards the multi-sourcing strategies implemented by the industrial customers were not logical, since such strategies were, in reality, characteristic of a very competitive market, where the bargaining power of buyers was high and where, on the relevant market, those strategies had led to an increase in supply side competition, in particular in the context of tender procedures organised for several industrial customers or rolled products, and to a significant pressure to decrease rolled product prices.
299    In recital 548 of the contested decision, the Commission dismissed as unconvincing the similar objections that the applicant had raised in paragraphs 129 and 230 of its reply to the statement of objections. It observed that the number of participants on the relevant market did not account for the precise competitive constraints on that market, having regard to the fact that the industrial customers permanently had to maintain business relationships with several suppliers, in accordance with their multi-sourcing strategies, which limited their actual options to turn to other suppliers and decreased their bargaining power. It had already found that that effect existed as regards multi-sourcing strategies, in previous decisions.
300    The applicant has merely reproduced the objections set out in its reply to the statement of objections without taking issue with the assessments that the Commission provided in response, in recital 548 of the contested decision, and which revealed the reasons why the industrial customers’ multi-sourcing strategies on the relevant market, in particular in the ‘high-end’ segment of that market, where the number of competitors was very limited, weakened, in practice, their market power and made them more dependent on their suppliers, as substantiated by a body of evidence corresponding to testimonies of several industrial customers gathered during the market investigation and cited in recitals 544 to 546 of the contested decision. Those testimonies were credible, in so far as they originated from direct witnesses of the events recounted. Moreover, they were consistent in showing that the industrial customers were dependent on a small number of suppliers who had a high degree of market power, especially in the ‘high-end’ segment of the relevant market.
301    The applicant’s objections, which were based on general considerations according to which the multi-sourcing strategies necessarily strengthened competition on the market, are not such as to call into question the Commission’s assessments based on a precise evaluation of the situation prevailing on the relevant market, in particular in the ‘high-end’ segment thereof. The same is true for the applicant’s general considerations relating to the tender procedures organised for the industrial customers; in addition to not being substantiated by any evidence, those considerations do not call into question the Commission’s assessments based on those customers’ implementation of multi-sourcing strategies, in segments of the relevant market, such as the segment for ‘high-end’ rolled products, where the number of competitors was, in practice, very limited.
302    In the light of all the foregoing considerations, the second part of the sixth plea in law must be rejected as unfounded.
3.      The third part of the sixth plea in law
303    By the third part of the sixth plea, the applicant argues that the Commission erred, in Section 6.5.4 and, accordingly, in recitals 549 to 569 of the contested decision, in taking the view that the report analysing the determining factors as regards switching suppliers, which it had submitted to the Commission during the administrative proceedings, did not substantiate its claims that it was easy for industrial customers to switch suppliers, without having carried out, in the context of the market investigation, sufficient research or made additional requests for information in that regard.
304    The Commission disputes the applicant’s arguments and contends that the third part of the sixth plea should be rejected as unfounded.
305    In so far as the applicant criticises the Commission for having rejected the report analysing the determining factors as regards switching suppliers, on the ground that it was not based on actual data of the sales volumes switched between competitors, even though the applicant did not have access to the data of its competitors and it was for the Commission to carry out its own research in that regard, it should be noted that, in Sections 6.5.1 to 6.5.3 of the contested decision, the Commission based its assessments on a body of evidence consisting of testimonies of numerous industrial customers gathered during the market investigation and internal documents of the parties to the concentration at issue. Those testimonies were credible, in so far as they originated from direct witnesses of the events recounted. Furthermore, the internal documents of the parties to the concentration at issue to which the Commission referred could be considered to be particularly credible and reliable, in so far as they were drawn up by those parties, at the material time, during the ordinary course of their business and without their content being in line with those parties’ interests in the context of the present action. All those items of evidence were consistent in establishing that, following the concentration at issue, the industrial customers would have limited possibilities of switching suppliers, in particular in the ‘high-end’ segment of the relevant market.
306    In the light of the case-law previously cited in paragraphs 116, 120 and 163 above, the Commission relied on items of evidence or indicia which were essentially qualitative in nature, all the more so since it was not possible, on the relevant market, which was a highly differentiated product market, depending on a great number of criteria (see paragraph 39 above), to draw a clear distinction between rolled products belonging to the ‘high-end’ segment and those belonging to the ‘low-end’ or ‘commoditised’ segment of that market. In that context, the Commission cannot be criticised for having taken the view that qualitative evidence, such as direct testimonies of market participants, was more reliable than figures relating to those different segments and, in particular, for not having carried out its own research as regards sales volumes switched between competitors.
307    It was for the purpose of calling into question the merits of the intermediate conclusions that the Commission reached in that regard, during the administrative proceedings, that the applicant produced the report analysing the determining factors as regards switching suppliers. In so far as it now seeks to base the present complaint, directed against the respective final assessment in the contested decision, as substantiated by the body of credible and consistent evidence described in paragraph 305 above, on the report analysing the determining factors as regards switching suppliers, it is for it, in accordance with the case-law (see paragraph 121 above), to establish in what way that report is such as to call into question the merits of that assessment, substantiated in that manner.
308    The applicant has not adduced such evidence, since the information contained in the report analysing the determining factors as regards switching suppliers does not enable a reliable determination of the extent to which industrial customers switched suppliers on the relevant market. As stated in recitals 549 to 552 of the contested decision, that report is based on the analysis of a large part of rolled product sales won or lost by the parties to the concentration at issue between 2014 and 2017, calculated in total or broken down by alloy groups.
309    As the Commission and the applicant correctly state, those wins, but also those losses, of sales volumes had to be partially attributed to the organic growth of the relevant market and its different segments and sub-segments. Thus, from one year to the next, the purchase volumes of the industrial customers, in the context of the business relationships established with their suppliers, could vary depending on the more or less favourable economic situation on that market or in its different segments or sub-segments. Contrary to what the applicant claims, such a development did not reveal anything about the ability of those customers drastically to switch suppliers.
310    In addition, those wins and losses of sales volumes could also be linked to the parties to the concentration at issue implementing their own business strategy. Thus, the implementation by the applicant of a ‘cream skimming’ strategy led it to withdraw from some – less profitable –
segments of the relevant market, where it was losing sales volumes, in order to focus on others, more profitable, where it was winning sales volumes.
311    For those reasons, as the Commission correctly stated, the information on which the analyses in the report analysing the determining factors as regards switching suppliers was based did not enable a reliable and precise determination of the extent to which the variations in sales volumes accounted for supplier switching on the part of the industrial customers.
312    Even assuming that that report had accounted for some transfers of sales volumes between the parties to the concentration at issue, those transfers would not have been relevant for the purpose of evaluating the anticompetitive effects of that concentration, since they would no longer occur following that concentration. Rather, they would have made it possible to establish that, as, moreover, the Commission submitted, the parties to the concentration at issue were important and close competitors, in particular in the ‘high-end’ segment of the relevant market.
313    The report analysing the determining factors as regards switching suppliers therefore was not evidence such as to undermine the Commission’s assessments in Section 6.5 of the contested decision, based on a body of credible and consistent evidence.
314    By contrast, as is apparent from recitals 563 and 564 of the contested decision, the report analysing the determining factors as regards switching suppliers confirmed, in some respects, that supplier switching, for the entirety or a large part of the purchase volumes, was difficult to implement for a majority of industrial customers. Paragraph 4.1 of that report confirmed that those industrial customers implemented multi-sourcing strategies. As the Commission correctly states, the implementation of such strategies on a market where, like in the ‘high-end’ segment of the relevant market, there were very few competitors limited, in practice, to a very large extent the possibility of drastically switching suppliers.
315    In the light of the foregoing, the third part of the sixth plea must be rejected as unfounded and, accordingly, the sixth plea in law must be rejected in its entirety.
G.      The seventh plea in law, alleging manifest errors in assessing the alleged price increases attributable to the concentration at issue on the relevant market
316    In the context of the seventh plea in law, the applicant submits that, in Section 6.6 and, accordingly, in recitals 570 to 587 of the contested decision, the Commission committed manifest errors of assessment in finding that some of the applicant’s internal documents and the results from the market investigation indicated that the concentration at issue would be likely to lead to price increases on the relevant market and thus provided a strong indication of the significant impediment to effective competition in the EEA or in a substantial part thereof which could arise from that transaction.
317    The Commission disputes the applicant’s arguments and contends that the seventh plea should be rejected as unfounded.
318    As a first step, the applicant argues that, in recital 572 of the contested decision, the Commission erred in finding that the applicant had set itself the strategy of increasing its prices following the concentration at issue, by relying on an internal document that was not corroborated by other evidence; according to the applicant, that document reflected only the personal view of one of its sales people.
319    As a preliminary point, it should be noted that the internal document cited was produced in the ordinary course of the applicant’s business, in order to define the main activities it would undertake so as to integrate ARP following the concentration at issue. That document runs counter to the applicant’s interests in the context of the present action, in so far as, in it, the working group ‘Sales & Marketing’ indeed identified, among the activities that necessarily had to be undertaken in the first 30 days after the closing of the transaction, the following: ‘make use of [the applicant’s] market position and increase price’, for all of ARP’s plants. It is apparent from another internal document of the applicant, cited in recital 573 of the contested decision, that, first, that working group was headed by the person who was the then president of the ‘Rolled products’ business unit and who was also a member of the applicant’s executive committee and, second, the detailed action plan listing the activities to be undertaken in order to integrate ARP had to be implemented, within the time limits set, by each team lead, subject to weekly review by the integration manager for ARP.
320    Far from showing that the price increase referred to in recital 572 of the contested decision was the idea of an individual sales person, as the applicant claims, the abovementioned documents did in fact establish that it was one of the main activities to be undertaken by the applicant, in the field of ‘Sales & Marketing’, in the context of a detailed action plan for ARP’s integration, following the concentration at issue.
321    Moreover, as the Commission correctly stated in recital 573 of the contested decision, that document was corroborated by other internal documents of the applicant, cited in Section 6.3.2.2 of the contested decision, from which it was apparent that the concentration at issue corresponded also, for the applicant, to the development of a defensive strategy seeking to prevent ARP from eventually challenging the applicant’s market power in the ‘high-end’ segment of the relevant market.
322    Having regard to the high credibility of the internal document from which the citation in recital 572 of the contested decision is extracted and the fact that that citation’s content was corroborated by other internal documents showing the applicant’s desire, by means of the concentration at issue, to protect its market power in the ‘high-end’ segment of the relevant market, the Commission was justified in drawing from that citation the conclusions which are, in the present case, disputed by the applicant.
323    In a second step, the applicant criticises the Commission for having failed to take account of the responses to questions 50 to 50.2 of questionnaire Q2 of the market investigation given by some competitors, namely MKM, Sofia Med and Ningbo Powerway Alloy Plate & Strip Co. Ltd, or of the responses to questions 46 to 49 of questionnaire Q1 or question 27 or 28 of questionnaires Q4.3, Q4.4 and Q4.6 to Q4.8 of that investigation given by some industrial customers and other market participants, namely Dafra Kontakt tehnologija d.o.o., Batten & Allen Ltd, Marquardt GmbH, Silca, Gries & Co. GmbH, Hauff Kuehlerfabrick GmbH, Modine Hungária Kft., FCI Besançon SA, Fritz Kaiser GmbH & Co. KG, Ferrex Scandinavia AB, Otto Dunkel GmbH and Hirtenberger Präzisionstechnick GmbH & Co. KG, confirming that they did not expect anticompetitive effects, in particular price increases, to follow from the concentration at issue, or even that they expected pro-competitive effects.
324    As a preliminary point, it must be noted that, as is apparent from recitals 575 to 586 of the contested decision, the Commission took account of the fact that the responses to the market investigation were not uniform. In particular, in recital 580 of that decision, it acknowledged that ‘certain [industrial] customers and [certain] competitors [had given] positive feedback on the [concentration at issue]’. However, in the context of weighing the various items of evidence or indicia that it had gathered, it stated that it had considered that ‘such [positive] feedback from a minority of respondents to the market investigation [was] insufficient to outweigh, or put into doubt, the negative feedback received from the vast majority of the respondents during [the] market investigation’.
325    It is apparent from the analysis of recitals 575 to 586 of the contested decision that, in the context of the weighing of the various items of evidence or indicia available, the Commission examined the relative credibility of each of them. Such a weighing method corresponds to what is required by the case-law and therefore can only be upheld.
326    As regards the competitors, the applicant does not dispute the Commission’s assessment, set out in recital 574 of the contested decision, according to which several of them were in particular concerned about price increases on the relevant market, following the concentration at issue.
327    As regards the three competitors referred to by the applicant, namely MKM, Sofia Med and Ningbo Powerway Alloy Plate & Strip, it is apparent, first of all, from the responses given by Ningbo Powerway Alloy Plate & Strip that, in its view, the concentration at issue would have a limited impact on the relevant market. However, as the Commission stated in recital 576 of the contested decision, the reliability of that response was weakened by the fact that Ningbo Powerway Alloy Plate & Strip was hardly present in the EEA and that its knowledge about competition on the relevant market seemed to be limited, since it had responded ‘do not know’ to questions concerning the market power of the parties to the concentration at issue and their competitors.
328    Next, it is apparent from the responses given by MKM that in its view the concentration at issue would not have an impact on the relevant market, in particular as regards price increases, since the ‘highly competitive global market [remained] unchanged’. However, as the Commission correctly stated in recital 576 of the contested decision, the reliability of that response was weakened by the fact that MKM was hardly present in the ‘high-end’ segment of the relevant market, in which the activities of the parties to the concentration at issue overlapped and the applicant focused its activities, and that MKM appeared to have focused on the situation prevailing on the global market rather than on the EEA market. As the Commission also correctly observed, MKM’s responses are in line with the competitive situation prevailing in the ‘low-end’ or ‘commoditised’ segment of the relevant market.
329    Lastly, it is apparent from the responses given by Sofia Med that, according to it, the concentration at issue would not have an impact on prices on the relevant market. The Commission did not comment specifically on that response. However, it stated in a general manner, in recital 577 of the contested decision, that the reliability of the responses of competitors active in the ‘high-end’ segment of the relevant market could be influenced by the fact that they could benefit from the concentration at issue in a segment the oligopolistic structure of which would be further strengthened. As the Commission stated in recitals 426 to 429 of the contested decision, on an oligopolistic market, it is more likely that competitors follow, rather than counter, price increases orchestrated by one of them. Moreover, as is apparent from recital 868 of the contested decision, by letter of 22 November 2018, Sofia Med had subsequently expressed its interest in acquiring ARP’s Stolberg plant from the applicant, in the context of a potential implementation of the third proposed commitments. The responses of the industrial customers active in the ‘high-end’ segment of the relevant market, which would be affected by the price increases, were thus relatively more credible than those of competitors of the parties to the concentration at issue which might have had an interest in that concentration taking place.
330    The Commission’s assessments outlined in paragraphs 324 to 329 above are such as to justify, in the context of the weighing of the various items of evidence or indicia available, its not prioritising the responses of Ningbo Powerway Alloy Plate & Strip, MKM or Sofia Med over the body of evidence or indicia to the contrary that it had gathered. Moreover, in the context of the present plea, the applicant has not put forward any precise and concrete arguments disputing those assessments. In that context, it must be stated that it has failed to establish that those assessments were unfounded.
331    As regards the industrial customers, the applicant does not dispute the Commission’s assessments, in recitals 574, 578, 579 and 581 to 586 of the contested decision, according to which the large majority of those which had responded to the market investigation were, in particular, concerned about price increases or higher prices being maintained on the relevant market, following the concentration at issue, in particular the industrial customers active in the segment for ‘high-end’ rolled products or sub-segments belonging, essentially, to that segment, such as the sub-segment for rolled products for connectors, electrical engineering or energy/signal. The reports on the non-confidential responses of the industrial customers produced by the Commission in support of the present action show that a large majority of the industrial customers predicted price increases, following the concentration at issue, in particular in the connectivity sector.
332    Those assessments of the Commission are such as to justify, in the context of the weighing of the various items of evidence or indicia available, its prioritising the responses of the large majority of industrial customers, in particular those present in the segment for ‘high-end’ rolled products, where the activities of the parties to the concentration at issue overlapped and where the applicant focused its activities, over those of certain industrial customers, some of which were not even active in that segment.
333    In the light of all the foregoing considerations, the seventh plea must be rejected in its entirety as unfounded.
334    Therefore, it must be stated that the applicant has not succeeded in calling into question, in the context of the present action, the assessments which led the Commission to conclude, in Section 6.8 and, accordingly, in recital 597 of the contested decision, on the basis of the analyses set out in Sections 6.2 to 6.6 of that decision, that the horizontal anticompetitive effects of the concentration at issue would be likely to lead to a significant impediment to effective competition in the EEA or in a substantial part thereof, on account of the disappearance of an important competitor on the relevant market, with the likely effect of price increases.
A.      Eighth plea in law, alleging manifest errors of assessment concerning the anticompetitive effects of the change from joint to sole control on the part of the applicant over Schwermetall
335    In the context of the eighth plea in law, the applicant claims that there are manifest errors vitiating, in Section 6.9 and, accordingly, in recitals 598 to 724 of the contested decision, the Commission’s assessment to the effect that the horizontal anticompetitive effects of the concentration at issue, arising from the two parallel transactions comprising it, as found in recital 597 of that decision (see paragraph 334 above), would be aggravated by the vertical anticompetitive effects of that concentration, arising from its acquisition of Aurubis’ 50% stake in Schwermetall, which allegedly would allow it to hinder the development of its competitors on the relevant market.
336    The eighth plea is divided into four parts.
1.      The first part of the eighth plea in law
337    In the context of the first part of the eighth plea, the applicant claims that the Commission erred in finding, in Section 6.9.1.1 and, accordingly, in recitals 600 to 619 of the contested decision, that Schwermetall was the leading supplier of pre-rolled strip.
338    The Commission disputes the applicant’s arguments and contends that the first part of the eighth plea should be rejected as unfounded.
339    First, the applicant maintains that the Commission failed to take into account captive production of pre-rolled strip and the internal production capacity of its competitors on the relevant market, as mentioned in the report drawn up by an economic consultancy firm concerning the ‘Economic assessment of the risk of anticompetitive input foreclosure’, that is to say the merchant market for pre-rolled strip used in the manufacture of rolled products, which the applicant sent to the Commission on 23 August 2018, in support of its written observations on the decision to initiate in-depth investigation proceedings (‘the report on the assessment of the risk of anticompetitive input foreclosure’), and in the follow-on points drawn up by the same firm, in response to certain questions raised by the Commission at a meeting on 17 September 2018.
340    In that regard, it should be noted that, in Section 6.9.1 of the contested decision, the Commission sought to ascertain the extent to which the applicant, through its sole control over Schwermetall, would have the ability to raise the production costs of its competitors on the relevant market which sourced pre-rolled strip from Schwermetall. To that end, it was important to begin by determining the market share held by Schwermetall on the pre-rolled strip merchant market in the EEA, where the competitors in question were supplied, as the Commission did, in Section 6.9.1.1 of the contested decision, by finding that, in 2017, that market share, in volume, was [70-80]%.
341    At the stage of calculating Schwermetall’s market share on the pre-rolled strip merchant market in the EEA, there was no need for the Commission to take account of captive production and internal production capacities for pre-rolled strip, since their existence did not change the fact that, to a greater or lesser extent in terms of their supplies, some of the applicant’s competitors on the relevant market purchased pre-rolled strip on the merchant market including, to a large extent, from Schwermetall.
342    The fact that, despite the production capacity available to them, the competitors concerned continued to source pre-rolled strip on the merchant market tended rather to confirm that they were not in a position to produce or, at the very least, to produce in a sufficiently competitive manner the pre-rolled strip that they purchased on that market. Thus, as the Commission correctly observed in recital 610 of the contested decision, there is nothing to indicate that captive production and in-house production capacity of pre-rolled strip exerted a competitive constraint on the integrated competitors that were genuinely active on the pre-rolled strip merchant market.
343    In so far as the applicant complains that the Commission did not itself collect more information in that regard, using its investigative powers, as the applicant had requested it to do in paragraph 14 of its reply to the statement of objections, it should be noted that, in so far as it is the applicant which claims, in support of a plea directed against the contested decision, that captive production of pre-rolled strip and its competitors’ in-house production capacity on the relevant market exercised competitive constraints on the integrated competitors that were genuinely active on the pre-rolled strip merchant market, it is also for the applicant, in accordance with the case-law cited in paragraph 121 above, to adduce evidence to support this. The applicant is not therefore justified in criticising the Commission for not having collected sufficient information in that regard.
344    As regards the circumstance, invoked by the applicant, that the competitors concerned could, if, once under the applicant’s sole control, Schwermetall had raised the price of pre-rolled strip that it sold them on the merchant market, have used their production capacities to replace Schwermetall’s supplies with captive production of pre-rolled strip, which would have reduced the latter’s market share, it is based on the premiss, recalled in the introduction to point 5.2 of the report on the assessment of the risk of anticompetitive input foreclosure, that ‘in principle all casting technologies can be used to produce almost all pre-rolled strip alloys (although some time and costs may be needed to produce other alloys)’, with the result that ‘all spare capacity [is] … suitable for any alloys’.
345    In response to the analyses contained in point 5 of the report on the assessment of the risk of anticompetitive input foreclosure and in the follow-on points, the Commission stated in recital 611 of the contested decision and, in further detail, in Section 6.9.1.4 and, in particular, in recitals 657 to 671 of the contested decision, that, at least in the short term, those of the applicant’s competitors on the relevant market which were supplied with pre-rolled strip from Schwermetall would not have the capacity to produce, in an economically efficient manner, certain types of pre-rolled strip sold by the latter.
346    The Commission was thus correct in giving greater weight, since they were more credible, to the specific statements made directly by the main parties concerned, namely certain of the main competitors that sourced pre-rolled strip from Schwermetall over the interpretation of certain indirect data, relating to producers located outside the EEA, which, accordingly, were not active on the relevant market, and over the applicant’s statements which concerned only its own situation. In addition, since the data at issue were credible, it was irrelevant that they were qualitative rather than quantitative.
347    The body of credible and consistent evidence thus gathered by the Commission in recitals 662 to 665, 667 and 669 of the contested decision called into question the principle relied on in point 5.2 of the report on the assessment of the risk of anticompetitive input foreclosure, according to which all casting technologies could be used to produce almost all pre-rolled strip alloys, with the result that all spare production capacity could be used by the competitors. It followed that four of Schwermetall’s five main customers, namely Diehl, Griset, Kemper and Messingwerk Plettenberg, which were also important competitors of the parties to the concentration at issue on the relevant market, did not have the necessary processes to produce on an internal and economically efficient basis, certain types of pre-rolled strip supplied by Schwermetall and that the development of those processes would have required considerable investment that would not necessarily have been profitable. Those customers were thus dependent on Schwermetall for the supply of pre-rolled strip of certain alloy composition, such as HPAs of the copper iron group or alloys of deep-drawing quality.
348    As the Commission correctly observes, the base-case scenario described in point 6.3.2.1 of the report on the assessment of the risk of anticompetitive input foreclosure, to which the applicant referred, also started from the principle that, for certain ‘foreclosable’ alloys’, Diehl, Griset, Kemper and Messingwerk had no internal solutions or sometimes even no external alternatives.
349    Finally, in so far as the applicant criticises the Commission for having relied on unverified or incorrect hypotheses, concerning the limited technical capabilities of its competitors on the relevant market, or incomplete hypotheses, in so far as they only related to three HPAs, it should be noted that, in the contested decision, as was noted in recitals 662 to 665, 667 and 669 of the contested decision, the Commission relied on a body of credible and consistent evidence permitting a finding that, independently of their production capacities, four of Schwermetall’s five main customers, which were also important competitors of the parties to the concentration at issue on the relevant market, were dependent on Schwermetall for the supply of pre-rolled strip of certain alloy composition, such as HPAs of the copper iron group or alloys of deep-drawing quality, in the sense that they did not have, for those types of alloys, internal alternatives or solutions that were economically as efficient.
350    It follows from the foregoing that the Commission’s failure to take into account captive pre-rolled strip production and the in-house production capabilities of those competitors did not vitiate the merits of the assessments made by it in Section 6.9.1.1 of the contested decision.
351    The applicant’s complaint alleging failure to take into account that production and those production capabilities of the competitors must therefore be rejected.
352    Second, the applicant complains that the Commission took a static view of the pre-rolled strip merchant market, based on the market shares in 2017, and not a dynamic view of that market, taking into account likely changes to it, such as the continuing development of and progressive increase in the sales of KME/MKM and Sofia Med, providing an alternative to Schwermetall.
353    As regards the question whether KME/MKM and Sofia Med could nevertheless, within a short period of time, have provided such an alternative, it should be noted that the Commission, in the light of similar objections raised by the applicant in paragraphs 181, 182, 184 and 185 of its reply to the statement of objections, responded in Section 6.9.1.4 and, in particular, in recitals 677 to 680 of the contested decision, giving reasons why it was not in a position to find that, in the short term, KME/MKM and Sofia Med would expand their activities on the pre-rolled strip merchant market in such a way as to constitute a real alternative to those of Schwermetall. In the case of Sofia Med, the Commission observed that, despite its growth, its market share of [5-10]% remained relatively low and its geographical location was peripheral, in the EEA, and that the time and transport costs entailed by that location constituted a competitive disadvantage for it. As regards KME/MKM, the Commission found that KME would face a worsened financial situation and challenges as a result of its integration with MKM and that, in response to a request for information which had been sent to it during the market investigation, referred to in recital 674 of the contested decision, KME had placed conditions on such a development, the implementation of which thus remained uncertain.
354    It follows from the foregoing that, contrary to what the applicant claims, the Commission did not adopt, in the contested decision, a static view of the pre-rolled strip merchant market, but also took account of foreseeable developments in that market, in the short term.
355    The applicant’s complaint based on the Commission’s lack of a dynamic view of the pre-rolled strip merchant market must therefore be rejected.
356    Third, the applicant complains that, in recital 612 of the contested decision, the Commission was wrong to claim that, on the pre-rolled strip merchant market, Schwermetall had the broadest product portfolio, whereas, as is apparent from the data set out in Table 1 in point 2.1 of the follow-on points, [80-90]% of its total sales volume related to pre-rolled strip consisting of 10 specific alloys which were widely available from other competitors, while the pre-rolled strip consisting of other alloys sold by Schwermetall had little impact, given the low sales volumes of rolled products consisting of those alloys on the relevant downstream market.
357    The Commission responded, in recitals 614 to 616 of the contested decision, to similar objections by the applicant in paragraph 158 of its reply to the statement of objections.
358    As the Commission correctly noted in recitals 614 and 615 of the contested decision, the applicant’s arguments did not call into question the fact that Schwermetall had a much wider portfolio of pre-rolled strip than that of other competitors on the merchant market, or that, given the limited portfolio and volumes of pre-rolled strip sold by KME/MKM and by Sofia Med on the merchant market, Schwermetall was, inter alia, the only economically efficient solution for certain types of pre-rolled strip, such as those made of brass and HPAs used to manufacture rolled products for connectors.
359    In that regard, Table 1, contained in point 2.1 of the follow-on points, had no probative value, since it merely asserted, without proving it, that the 10 individual alloys representing [80-90]% of the total volume of pre-rolled strip sold by Schwermetall were available from numerous other competitors.
360    By contrast, the Commission’s assessment disputed by the applicant was supported by the responses of competitors to questions 37 and 37.1 of questionnaire Q2 and to question 23 of the questionnaire to suppliers of rolled products in the market investigation, which confirmed the competitive advantages available to Schwermetall, in particular because of its broad portfolio of pre-rolled strip, as compared with its competitors.
361    It follows from the foregoing that, contrary to what the applicant claims, the Commission did not err in finding that Schwermetall had a competitive advantage linked to its broad pre-rolled strip portfolio.
362    The applicant’s complaint based on that error and, accordingly, the first part of the eighth plea in its entirety must therefore be rejected.
2.      The second part of the eighth plea in law
363    In the context of the second part of the eighth plea, the applicant complains that the Commission erred in finding, in Section 6.9.1.2 and, therefore, in recitals 620 to 639 of the contested decision, that its competitors on the relevant market were dependent on Schwermetall for pre-rolled strip supplies because of an insufficient analysis by the Commission of alternatives which existed for a large part of the volumes supplied by Schwermetall.
364    The Commission disputes the applicant’s arguments and contends that the second part of the eighth plea should be rejected as unfounded.
365    In that regard, it must be borne in mind that, in the contested decision, the Commission responded to those arguments, which had already been submitted to it by the applicant in its reply to the statement of objections.
366    First, the applicant complains that the Commission focused entirely arbitrarily on the pre-rolled strip used to manufacture supposedly ‘high-end’ rolled products, without establishing that the pre-rolled strip that its competitors purchased from Schwermetall was actually intended for the manufacture of such products. In its response to question 37.1 of questionnaire Q2 of the market investigation, MKM stated that Schwermetall was, on the pre-rolled strip merchant market, ‘a competitor like others, with no differentiation’.
367    In that regard, and as has already been observed in paragraph 206 above, it should be recalled that the Commission was justified, in the present case, in focusing its analysis on the pre-rolled strip for ‘high-end’ rolled products, since it had previously found that that segment of the relevant market or sub-segments belonging, essentially, to that segment were driven by their own competitive dynamics and it was on that market that the anticompetitive effects of the concentration at issue would be the most substantial.
368    In addition, the reallocation of Schwermetall’s sales had made it possible to identify three HPAs of the copper iron group for which the use of Schwermetall’s pre-rolled strip by Diehl, Griset, Kemper and Messingwerk Plettenberg was particularly great. As the Commission found, in recitals 120, 354, 358 and 626 of the contested decision, those three HPAs were used for the manufacture of certain key ‘high-end’ rolled products, such as connector strip for the automotive industry. Thus, the access of competitors of the parties to the concentration at issue on the relevant market to pre-rolled strip consisting of those alloys, supplied by Schwermetall under economically efficient conditions, was effectively decisive in allowing them to compete with them in certain key sub-segments belonging essentially to the ‘high-end’ segment of the relevant market.
369    MKM’s response to which the applicant refers had to be assessed in the light of the fact, as noted in recitals 489 and 674 of the contested decision, that MKM’s Conti-M® line did not allow it to manufacture, in an economically efficient manner, pre-rolled strip made of HPAs. That response could not therefore be understood as meaning that MKM sold pre-rolled strip made of HPAs on the merchant market on a comparable footing with Schwermetall. Moreover, even for the pre-rolled strip it supplied, MKM immediately moderated its initial statement by indicating that Schwermetall, nevertheless, had ‘a certain advantage’ because ‘[it] operate[d] the largest copper and copper alloy rolling plant in Europe and [enjoyed] certain economies of scale’.
370    For those reasons, the present complaint must be rejected as unfounded.
371    Second, the applicant complains that the Commission failed to take account of the fact that its competitors on the relevant market had other sources of pre-rolled strip supplies and could use their own production capacities to produce it.
372    In that regard, it is sufficient to note that, as is apparent from the examination of the first part of the eighth plea, the applicant has not succeeded, on the basis of the arguments which it put forward, in challenging the merits of the Commission’s findings to the contrary in the contested decision.
373    The present complaint must therefore also be rejected as unfounded.
374    Third, the applicant criticises the Commission for having selected, within the blurry segment of rolled products made of HPA that it had identified, only the alloys which supported its findings. Thus, while the Commission acknowledged that bronze was of particular importance in the segment for rolled products for connectors, it did not take that sector into account, since it did not reinforce its analyses, because Diehl and Kemper internally produced significant quantities of pre-rolled strip in bronze in 2017.
375    First, in so far as the applicant complains, in essence, that the Commission referred to a ‘blurry’ classification, it should be noted that, in response to similar arguments raised by the applicant in point 2.2 of its reply to the first letter of facts, the Commission stated, in recital 636 of the contested decision, that the alloy classification which it had used, in particular with regard to HPAs, was intended to reflect commercial usage on the relevant market. The report on the assessment of the risk of anticompetitive input foreclosure submitted by the applicant, had itself classified two copper iron alloys as ‘HPAs’. The applicant and other market participants ultimately treated another copper iron alloy the same way, which the Commission had taken into account in points 6 and 7 of the first letter of facts.
376    Those findings of the Commission cannot be called into question. As has already been stated, it was not possible, on the relevant market, which was a highly differentiated product market, depending on a great number of criteria (see paragraph 39 above), to establish a clear distinction between rolled products belonging to the ‘high-end’ segment or the ‘low-end’ or ‘commoditised’ segment of that market. In that context, the Commission cannot be criticised for having used classifications, which although somewhat ‘blurry’, sought, as far as possible, to reflect the usual commercial practices on the relevant market and their potential developments.
377    Moreover, in so far as the applicant complains, in essence, that the Commission focused on three particular HPAs, it should be noted that, as has already been observed in paragraph 206 above, the Commission was entitled to focus its analysis on a segment of the relevant market or sub-segments belonging, essentially, to that segment which were driven by their own competitive dynamics and on which the anticompetitive effects of the concentration at issue would have been the most substantial. The Commission found that the access of competitors of the parties to the concentration at issue on the relevant market to pre-rolled strip made of three HPAs of the copper iron group, supplied by Schwermetall, under economically efficient conditions, was effectively decisive in allowing them to compete with the applicant in certain key sub-segments belonging essentially to the ‘high-end’ segment of the relevant market. As the Commission correctly observes, those alloys had, moreover, been considered to be ‘foreclosable’ alloys in the base-case scenario described in point 6.3.2.1 of the report on the assessment of the risk of anticompetitive input foreclosure, submitted to the Commission by the applicant.
378    Consequently, the applicant is not justified in complaining that the Commission focused its analysis on three particular HPAs.
379    For those reasons, the present complaint must be rejected as unfounded.
380    Fourth, the applicant complains that the Commission failed to take into account the data that it had itself collected and made available in the data room, from which it was apparent that several competitors of the parties to the concentration at issue on the relevant market purchased pre-rolled strip made of copper, brass and HPAs from other integrated competitors or manufactured them internally.
381    In that regard, the applicant refers, in footnote 192, in paragraph 124 of the application, to a ‘Report of E.CA [Economics] of 6 November 2018’, without indicating whether that document had been referred to in the annexes to the application or where it had been referred to.
382    The annexes to the application may be taken into consideration only in so far as it is possible to determine precisely which elements contained in those annexes support or supplement the pleas or arguments expressly raised by the applicant in the body of its pleadings (see, to that effect, judgment of 29 March 2012, Telefónica and Telefónica de España v Commission,
T‑336/07, EU:T:2012:172, paragraph 63).
383    In the present case, the Court is not in a position to identify the evidence supporting the applicant’s present complaint or, consequently, to review its merits.
384    For those reasons, the present complaint must be rejected as inadmissible.
385    Fifth, the applicant complains that the Commission failed to take account of the fact that HPAs and bronze were not the only alloys used in the alleged segment for ‘high-end’ rolled products, in particular for rolled products for connectors. Brass and copper were also used and produced in large quantities, internally, by some of its competitors on the relevant market, in particular by Messingwerk Plettenberg.
386    The applicant’s argument does not alter the Commission’s finding in the contested decision that Diehl, Griset, Kemper and Messingwerk Plettenberg were dependent on pre-rolled strip made of three HPAs of the copper iron group supplied to them, under economically efficient conditions, by Schwermetall in order to be able to compete with the applicant in certain key sub-segments belonging, essentially,
to the ‘high-end’ segment of the relevant market.
387    As has already been observed in paragraph 206 above, the Commission was entitled to focus its analysis on a segment of the relevant market or sub-segments belonging, essentially, to that segment, driven by their own competitive dynamics and on which the anticompetitive effects of the concentration at issue would be the most substantial, which resulted, more specifically, in the present case, from the fact that the competitors of the parties to the concentration at issue on the relevant market were dependent on pre-rolled strip made of three HPAs of the copper iron group supplied, under economically efficient conditions by Schwermetall.
388    The present complaint must therefore be rejected as unfounded.
389    Sixth, the applicant complains that the Commission did not give reasons for the alleged dependence of its competitors on the relevant market and, in particular, in the ‘high-end’ segment of that market concerning pre-rolled strip produced by Schwermetall, given that those competitors covered only some of their pre-rolled strip requirements from Schwermetall and that they had their own pre-rolled strip production capacity as well as other sources of supply of pre-rolled strip on the merchant market, as highlighted in points 5.2 and 5.3 of the report on the assessment of the risk of anticompetitive input foreclosure, in particular the sources of supply provided by MKM, KME or KME/MKM or Sofia Med.
390    First, in so far as the applicant refers to internal and external production capacities for pre-rolled strip identified in points 5.2 and 5.3 of the report on the assessment of the risk of anticompetitive input foreclosure, it should be noted that, as has already been observed in paragraphs 344 to 347 above, the merits of the premiss on which that assessment is based was called into question by the Commission on the basis of a body of credible and consistent evidence gathered in the contested decision.
391    As regards the internal and external production capacities for pre-rolled strip, the Commission was therefore justified in concluding, in recitals 692 and 710 of the contested decision, that that report was based on an incorrect premiss, which limited its evidential value.
392    Moreover, in so far as the applicant complains, in essence, that the Commission focused on certain particular pre-rolled strip requirements of its competitors, it should be noted that the Commission was entitled, in the present case, to focus its analysis on a segment of the relevant market or sub-segments belonging, essentially, to that segment which were driven by their own competitive dynamics and on which the anticompetitive effects of the concentration at issue would be the most substantial (see paragraphs 206 and 377 above), namely, in the present case, in particular those of ‘high-end’ rolled products manufactured from pre-rolled strip made of three HPAs of the copper iron group, for which Diehl, Griset, Kemper and Messingwerk Plettenberg were particularly dependent on Schwermetall’s supplies.
393    Furthermore, it follows from the examination of the first part of the eighth plea that the applicant has failed to call into question the merits of the Commission’s findings, in the contested decision, to the effect that Diehl, Griset, Kemper and Messingwerk Plettenberg did not have the necessary processes to produce, on an internal and economically efficient basis, the pre-rolled strip made of HPAs supplied by Schwermetall and that the development of those processes would require considerable investment that would not necessarily be profitable (see paragraph 347 above).
394    The Commission was therefore justified in focusing on the requirements for pre-rolled strip made of three HPAs of the copper iron group, intended for the manufacture of their ‘high-end’ rolled products.
395    Lastly, in so far as the applicant complains that the Commission did not take sufficient account of the pre-rolled strip sources of supply offered, on the merchant market, by MKM, KME or KME/MKM or by Sofia Med, it is also apparent from the examination of the first part of the eighth plea that the Commission duly examined, in its assessments in the contested decision, the question whether KME/MKM and Sofia Med could not, in the short term, represent an alternative to Schwermetall to supply Diehl, Griset, Kemper and Messingwerk Plettenberg with pre-rolled strip made of HPAs and that it responded to that argument in the negative (see paragraph 353 above).
396    In response to the applicant’s argument that KME/MKM could use the capacities resulting from the economies of scale achieved within the new entity to produce pre-rolled strip made of HPAs, which it would sell on the merchant market, the Commission stated, in essence, in recital 674 of the contested decision (see paragraph 353 above), that such a possibility was too uncertain to be taken into account, because KME would face a worsened financial situation and challenges as a result of its integration with MKM and that, in response to a request for information which had been sent to it during the market investigation, referred to in recital 674 of the contested decision, KME had set conditions for such a development, the implementation of which thus remained uncertain.
397    For all those reasons, the Commission was justified in taking the view that MKM, KME and KME/MKM could not be regarded as representing an alternative to Schwermetall to supply Diehl, Griset, Kemper and Messingwerk Plettenberg with pre-rolled strip made of HPAs.
398    As regards Sofia Med, the applicant disputed the Commission’s finding that it could not be regarded, at least in part, as an alternative to Schwermetall in order to supply Diehl, Griset, Kemper and Messingwerk Plettenberg with pre-rolled strip made of HPAs (see paragraph 353 above), given its dynamics, its potential for growth and its available production capacities.
399    Admittedly, the applicant had established, in paragraph 184 of its reply to the statement of objections, that Sofia Med had experienced significant growth in its total sales of pre-rolled strip and rolled products between 2015 and 2017, as the Commission acknowledged in recital 677 of the contested decision.
400    However, it did not follow that Sofia Med could be regarded, in the short term, as an alternative to Schwermetall to supply Diehl, Griset, Kemper and Messingwerk Plettenberg with pre-rolled strip made of HPAs, for the following reasons.
401    First of all, as the Commission observed in recital 675 of the contested decision, despite its growth, Sofia Med remained, in 2017, a small participant as compared with Schwermetall on the pre-rolled strip merchant market, including for pre-rolled strip made of HPAs, as confirmed by the data set out in Tables 22 and 23, contained in recitals 604 and 606 respectively of the contested decision. In addition, its pre-rolled strip portfolio was limited.
402    Next, certain reliable evidence, gathered by the Commission during the administrative proceedings, established that Sofia Med still needed time to develop technical and material capacities in order for it to become a credible competitor of the applicant. Thus, the internal document drawn up by ARP
in the ordinary course of its business, contained in Figure 48 of recital 492 of the contested decision, showed that Sofia Med ‘tr[ied] to enter the higher end market of connectors’ and that it was ‘so far not there in quality, but likely just a matter of time due to joint venture with Dowa [Metaltech]’. In addition, the non-confidential response of Kemper, Schwermetall’s second most important customer, which also purchased pre-rolled strip from Sofia Med, cited in recital 675 of the contested decision, stated that ‘Sofia Med would not be able to deliver the whole quantity of pre-rolled alloys which [it] purchased from Schwermetall’, because ‘[it did not] have the capacity to increase [its production] of [the additional] quantities [required to replace] the alloys [supplied by Schwermetall]’.
403    Lastly, in recitals 676 and 678 of the contested decision, the Commission stated that the development of Sofia Med on the pre-rolled strip market could be hampered by the location of its production sites which were less advantageous than that of its competitors, leading to transport costs and greater delays, while the market investigation confirmed that distance was an important factor in the competitiveness of its competitors.
404    The body of credible and consistent evidence thus gathered by the Commission supported its assessment that Sofia Med could not be regarded, in the near future, as an alternative to Schwermetall in order to supply Diehl, Griset, Kemper and Messingwerk Plettenberg with pre-rolled strip made of HPAs.
405    The limits of Sofia Med were, moreover, corroborated by some of its non-confidential statements at the meeting held with the Commission on 10 December 2018 concerning its declaration of interest in acquiring the ARP Stolberg plant, which were partially reproduced in recital 884 of the contested decision. It is apparent from point 19 of the minutes of that meeting, as contained in the file in the present case, that one of the preconditions for the purchase of the Stolberg plant by Sofia Med was the conclusion of a contract with Schwermetall for the supply of pre-rolled strip to that plant, for a period of at least five years. Furthermore, it is apparent from points 14 and 19 of those minutes that the acquisition of the Stolberg plant, which had a good reputation concerning the quality of its products, was intended to enable Sofia Med to expand its access to the relevant market and benefit from the know-how of that plant and that Sofia Med might be interested in concluding a know-how transfer agreement with Schwermetall or any other company, depending on the terms of such an agreement. Moreover, it is apparent from point 14 of those minutes that Sofia Med considered that the location of the Stolberg plant was very attractive. Furthermore, point 10 of those minutes states that Sofia Med considered that it could not also acquire ARP’s Zutphen plant, since its pre-rolled strip production capacity was not sufficient to supply the two plants. Such growth was too great and not tenable for it.
406    The Commission’s assessment referred to in paragraph 404 above cannot be overturned on the basis of the few items of evidence which the applicant has put forward in support of its complaints.
407    In so far as the applicant refers to paragraph 3 of the non-confidential record of a telephone call between the Commission and Sofia Med of 18 September 2018, in which Sofia Med stated that, as regards pre-rolled strip, it ‘intend[ed] to maintain an expansion strategy in future and want[ed] to further grow its EEA, and non-EEA, sales volumes year by year’, it must be noted that, as the Commission correctly observes, Sofia Med subsequently considerably qualified its initial statements at the meeting held with the Commission on 10 December 2018. It is apparent from points 4 and 5 of the minutes of that meeting that, at that meeting, Sofia Med stated that its development strategy related to flat rolled products and that pre-rolled strip was not a priority, even though it could envisage increasing its production if the applicant or Schwermetall were to exert upward pressure on prices. Furthermore, it is apparent from point 14 of those minutes that the expansion of its pre-rolled strip production capacity was primarily intended to accelerate its expansion on the relevant market, in particular in the ‘high-end’ segment, where the margins were higher, as stated in recital 610 of the contested decision, rather than on the pre-rolled strip merchant market.
408    In so far as the applicant disputes that Sofia Med was placed at a disadvantage by comparison with its competitors on the pre-rolled strip merchant market because of its peripheral location within the EEA, with reference to the information, communicated in paragraph 186 of its reply to the statement of objections, according to which it had already succeeded in selling pre-rolled strip, including pre-rolled strip
made of HPAs, in Germany, it should be noted that the applicant does not dispute that the peripheral location of Sofia Med compared with its competitors on the pre-rolled strip merchant market already constituted a competitive disadvantage in terms of higher costs and transport timings. Moreover, Sofia Med itself described the location of ARP’s Stolberg plant, in Germany, as being ‘very attractive’ (see paragraph 405 above). The applicant merely claims that that disadvantage was compensated for by competitive advantages linked to that location, in particular lower staff costs.
409    It is apparent, in particular, from recitals 493, 678 and 877 of the contested decision that, despite two requests for information, Sofia Med never provided evidence of its actual staff costs and merely referred in that regard to Eurostat statistics on hourly labour costs in Bulgaria and Germany.
410    Even though, as is apparent from point 17 of the minutes of the meeting of 10 December 2018, Sofia Med was facing an acute situation on the local employment market, which pushed wages upwards, it nevertheless seems certain, in view of the considerable difference between the hourly labour costs in Bulgaria and Germany, that Sofia Med enjoyed a competitive advantage over its competitors established in Germany as regards staff costs.
411    However, as the Commission rightly stated in recital 678 of the contested decision, in the absence of precise data on the staff costs actually incurred by Sofia Med, there was uncertainty as to the exact difference between those costs and the additional costs for the transport of pre-rolled strip and returned scrap, after their conversion into rolled products, linked to the peripheral location of the Sofia Med production plants within the EEA. That was particularly the case, since, as Sofia Med had stated in its non-confidential response of 13 December 2018 to a request for information from the Commission of 10 December 2018, referred to in recital 879 of the contested decision, Sofia Med had also failed to take into account, when assessing transport costs, the costs relating to the return of scrap. Moreover, as the Commission pointed out in the same recital, the costs of transport to Germany provided by Sofia Med appeared to have been underestimated, since they were lower than those it then charged its industrial customers in Germany, as is apparent from Kemper’s response of 6 December 2018 to a request for information from the Commission of 5 December 2018.
412    Even supposing that the Commission was not justified, in such a context of uncertainty, in concluding that there was an overall competitive disadvantage on the pre-rolled strip merchant market as a result of the peripheral location within the EEA of Sofia Med in relation to its competitors (see paragraph 250 above), it would therefore have been justified in taking the view that it was not in a position to find that that location conferred on it, an overall competitive advantage over those competitors.
413    On the basis of the other reasons put forward in the contested decision, as summarised in paragraphs 401 and 402 above and as corroborated by the statements of Sofia Med cited in paragraph 405 above, the Commission remained justified in concluding that Sofia Med could not be regarded, in the short term, as an alternative to Schwermetall in order to supply Diehl, Griset, Kemper and Messingwerk Plettenberg with pre-rolled strip made of HPAs.
414    In so far as the applicant also refers, in that regard, to the fact that the Commission had itself defined, in recital 148 of the contested decision, the geographic market for pre-rolled strip as corresponding to the EEA, it is sufficient to note that that did not alter the fact that the location of each operator within that geographic market could have negative consequences for their competitiveness, in comparison with the other participants present on that market, without, however, preventing them from operating on that market, in particular because those negative consequences were partially or fully offset by other competitive advantages, whatever form they might take.
415    Finally, in so far as the applicant complains that the Commission failed to take account of the possibility of KME/MKM and Sofia Med together as an alternative, it is sufficient to note that, since the Commission had not been able to find, with a sufficient degree of certainty, that KME/MKM or Sofia Med could represent, in the short term, a credible alternative to Schwermetall in order to supply Diehl, Griset, Kemper and Messingwerk Plettenberg with pre-rolled strip made of HPAs, on account of, in particular, technical production capacities and know-how that were still limited, it was justified in not assessing whether a cumulative increase in their sales on the pre-rolled strip merchant market would allow them to replace Schwermetall entirely.
416    The present complaint must therefore also be rejected as unfounded, with the result that the second part of the eighth plea in law is rejected in its entirety.
3.      The third part of the eighth plea in law
417    By the third part of the eighth plea, the applicant complains of an error on the part of the Commission, in Section 6.9.1.3 and, accordingly, in recitals 641 to 656 of the contested decision, in wrongly finding that the access which the applicant might have, following the concentration at issue, to commercial information, described as sensitive, on an individual basis concerning those of its competitors on the relevant market which were also customers of Schwermetall and the power which it would have to decide on its own on the price and portfolio of pre-rolled strip sold by Schwermetall on the merchant market would give it the ability to restrict the expansion of those competitors on the relevant market.
418    The Commission disputes the applicant’s arguments and contends that the third part of the eighth plea should be rejected as unfounded.
419    The applicant disputes that, following the concentration at issue, access to disaggregated, but individualised, commercial information on those of its competitors on the relevant market which were also customers of Schwermetall, would increase its ability to restrict the expansion of those competitors on the relevant market.
420    In so far as the applicant refers, in that regard, to point 2.4 of the follow-on points and to certain evidence in the file, from which it is apparent that, even before the concentration at issue, it was already aware, as Schwermetall’s parent company, of the average price and the minimum price of pre-rolled strip sold by Schwermetall on the merchant market and, accordingly, the average costs incurred by those competitors that obtained supplies from Schwermetall, it is necessary to uphold the Commission’s assessment, in recital 655 of the contested decision, to the effect that there is a difference, in terms of the competitive advantage gained, between having access to aggregated or average commercial information for all competitors and access to the same information for each competitor, but on an individual basis.
421    Consequently, the present argument must be rejected as unfounded.
422    As regards the applicant’s argument alleging that, following the concentration at issue, it would remain unaware of its competitors’ production costs on the relevant market which were unrelated to the pre-rolled strip prices charged to them by Schwermetall and of other essential competitive parameters such as the profitability of those competitors or the final properties or industrial purpose and geographic location of the rolled products that they produced, it must be noted, as the Commission states in recital 655 of the contested decision, that commercial information on an individual basis concerning certain of its competitors to which the applicant would have access, following the concentration at issue, would be sufficient to enable it to better target, for each of those competitors, price increases and limit the availability of specific alloys, thereby enabling it to hinder their expansion on the relevant market, in particular on the ‘high-end’ segment of that market. In that regard, it should be noted that, as indicated in recital 650 of the contested decision, the price of pre-rolled strip charged by Schwermetall to its customers represented, on average, 30% of their pre-rolled products production costs.
423    For those reasons, the present argument must be rejected as unfounded.
424    In so far as the applicant complains that the Commission did not explain or substantiate the assertion, set out in recital 649 of the contested decision, that access to commercial information on an individual basis concerning its competitors would enable it, following the concentration at issue, better to ‘tailor its own competing [pre-rolled] product development strategies’, it is sufficient to note that, while the Commission indeed referred to such a strategy in that recital, it did not subsequently repeat it, as is apparent from recital 694 of that decision, , in which it merely referred to the ability and incentive that the applicant would have to reduce the competitive pressure exerted by those of its competitors on the relevant market which depended on Schwermetall for their supplies of pre-rolled strip by ‘raising their costs’, an expression used by the Commission to cover both the increase in the price of pre-rolled strip offered for sale by Schwermetall on the merchant market and a reduction in the portfolio range or quality of that strip.
425    It must be borne in mind that complaints directed against the grounds of a decision adversely affecting the applicant purely for the sake of completeness must, in any event, be rejected outright as ineffective, since they cannot lead to the annulment of that decision (see, to that effect, judgment of 8 July 2004, Dalmine v Commission,
T‑50/00, EU:T:2004:220, paragraph 146 and the case-law cited).
426    Accordingly, the present argument must be rejected as ineffective, in so far as it does not relate to a necessary ground of the contested decision.
427    Finally, the applicant complains that the Commission, contrary to the principles of legal certainty and equal treatment, adopted an approach inconsistent with that which it had adopted in recital 37 et seq. of its decision in Case M.2925 – Charterhouse/CDC/TDF, in recital 21 of its decision in Case M.2738 – GEES/Unison, in recital 37 et seq. of its decision in Case M.2510 – Cendant/Galileo and in recitals 159 to 164 of its decision in Case M.3653 – Siemens/VA Tech, in which it stated, in the light of paragraph 78 of the Guidelines on the assessment of non-horizontal mergers, that the fact that an undertaking active on a downstream market accessed, by taking control of a company active on an upstream market, additional information concerning its competitors on the downstream market was unproblematic, since the effects that access to that information could have on competition were minimal.
428    In the light of the case-law already cited in paragraph 78 above, the applicant is not entitled to call into question the assessments made by the Commission in the contested decision solely on the ground that they differ from those made by it in previous decisions, on the basis of different notifications and files.
429    Moreover, in accordance with the case-law already cited in paragraph 79 above, neither the Commission nor, a fortiori, the Court is bound, in the present case, by the assessments in previous decisions and it is for the applicant to show in what way the assessments contained in the contested decision are, in themselves and independently of those in the previous decisions, incorrect.
430    The present argument must therefore be rejected as unfounded, with the result that the third part of the eighth plea in law is rejected in its entirety.
4.      The fourth part of the eighth plea in law
431    By the fourth part of the eighth plea, the applicant complains of an error on the part of the Commission, in Section 6.9.2 and, accordingly, in recitals 684 to 694 of the contested decision, in maintaining that the change from joint to sole control, on the part of the applicant, over Schwermetall would be likely to increase its incentive to raise the production costs of those of its competitors on the relevant market which were dependent on Schwermetall for their pre-rolled strip supplies.
432    The Commission disputes the applicant’s arguments and contends that the fourth part of the eighth plea should be rejected as unfounded.
433    First of all, the applicant submits that it already had, prior to the concentration at issue, the possibility of excluding those of its competitors on the relevant market which were supplied with pre-rolled strip from Schwermetall, since, as stated in point 2.4 of the report on the assessment of the risk of anticompetitive input foreclosure, it could have claimed, to its advantage, the entire share of Schwermetall’s production capacity not used by Aurubis. In any event, the applicant submits that the Commission has not established that, before the concentration at issue, it had an interest in foreclosing its competitors from the relevant market, but was prevented from doing so by a veto on the part of Aurubis. The Commission even found the opposite, in recital 686 of the contested decision.
434    The complaint that, in essence, the applicant already had, prior to the concentration at issue, the ability to prevent any sales of pre-rolled strip by Schwermetall on the merchant market in no way alters the fact that, as the Commission correctly observed in recital 686 of the contested decision, each of the parties to that concentration had less incentive to put in place strategies weakening its competitors on the relevant market when it was not certain that the industrial customers of those competitors would switch to it rather than to the other parent company of Schwermetall, which was a significant and close competitor. Therefore, the present complaint should be rejected as ineffective.
435    Moreover, contrary to what the applicant claims, the Commission set out, in recitals 687, 689 and 690 of the contested decision, the reasons why, before the concentration at issue, it was much more difficult for the applicant to implement strategies weakening its competitors on the relevant market, not only because of Aurubis’ power of veto concerning the pre-rolled strip portfolio offered for sale by Schwermetall on the merchant market, but also because Schwermetall freely negotiated with its customers, on that market, the prices and conditions of sale of its pre-rolled strip, without providing information on an individual basis concerning those matters to its parent companies. The applicant would have more incentive to implement such strategies following the concentration at issue, since, as was pointed out by the Commission, Aurubis’ power of veto and Schwermetall’s commercial autonomy would then disappear.
436    Consequently, the present complaints must be rejected as ineffective or unfounded.
437    In addition, the applicant complains that the Commission did not find, as in previous decisions, that the change from joint to sole control over a subsidiary did not have anticompetitive effects. It refers, in particular, to recital 214 of the decision in Case M.784. – Kesko/Tuko and in recital 229 of the decision in Case M.8242 – Rolls-Royce/ITP.
438    In accordance with the case-law already cited in paragraph 79 above, neither the Commission nor, a fortiori, the Court is bound, in the present case, by the assessments in previous decisions and it is for the applicant to show in what way the assessments contained in the contested decision are, in themselves and independently of those in the previous decisions, incorrect.
439    The mere reference by the applicant to the previous decisions mentioned in paragraph 437 above cannot therefore suffice to establish that the assessments of the vertical anticompetitive effects attributable to the concentration at issue, set out in the contested decision, are themselves incorrect.
440    The present complaint must therefore be rejected as unfounded.
441    Lastly, and more importantly, the applicant complains that the Commission failed to provide, in the contested decision, a consistent analysis of the risk of input foreclosure, by establishing, first, that its ability to implement such a strategy would not be affected by the fact that pre-rolled strip not supplied by Schwermetall could be produced internally or purchased, in an economically efficient manner, from other integrated competitors with available production capacities, such as KME/MKM or Sofia Med, second, that there would be incentives for it to engage in such a strategy and, third, that that strategy would have significant anticompetitive effects on the relevant market. In that regard, the applicant claims that the Commission did not comply with the standard of proof laid down in the case-law. Moreover, and contrary to what is provided for in paragraph 33 of the Guidelines on the assessment of non-horizontal mergers, the Commission wrongly required that each of the integrated competitors should be able to replace Schwermetall entirely, whereas, if it had correctly taken account of those competitors as a whole, it should have concluded that there was a possibility of replacement. In addition, as the applicant claims in the fourth plea, the Commission applied a theory of harm sui generis linking the horizontal and vertical effects attributable to the concentration at issue, which ran counter to the strict and clear directions set out in its guidelines. Lastly, in point 6, the report on the assessment of the risk of anticompetitive input foreclosure established that such foreclosure would not be profitable, since the lost profits, on the pre-rolled strip market, would exceed the expected revenue on the relevant market. As stated in point 7.2 of that report, it would be unlikely that input foreclosure would limit competition on the relevant market, given that it would affect only 5.8% by volume of that market.
442    It is clear from the analysis carried out in Section 6.9 of the contested decision and, in particular, from the conclusion drawn in recital 724 of that decision that the Commission did not conclude that the vertical anticompetitive effects of the concentration at issue would themselves give rise to a significant impediment to effective competition on the relevant market, but only that they would reinforce and deepen the anticompetitive horizontal effects of that concentration, in relation to which the Commission had already found that, taken in isolation, they would give rise to such an impediment. The applicant has not succeeded in calling into question the merits of that finding in the present action.
443    In any event, as has already been pointed out in paragraph 424 above and as is apparent from recitals 635, 692, 694, 704 and 710 of the contested decision, the Commission analysed, as part of the vertical anticompetitive effects of the concentration at issue, only the ability and incentive which the applicant would have to reduce the competitive pressure exerted by those of its competitors on the relevant market, which depended on Schwermetall’s supplies of pre-rolled strip by ‘raising their [production] costs’ either by increasing the price of pre-rolled strip sold by Schwermetall on the merchant market, or by a reduction in the portfolio range or quality of that strip.
444    As the Commission pointed out in recitals 655 and 704 of the contested decision, that decision was based on a less strict hypothesis than that analysed in point 6 of the report on the assessment of the risk of anticompetitive input foreclosure, namely that of complete or partial foreclosure of the competitors of the parties to the concentration at issue, based, as stated in the final paragraph of point 6.2.1 and in the first paragraph of point 6.3.1 of that report, on the fact that ‘… post-merger Schwermetall would stop supplying all alloys to all third-party customers that are downstream rolled product competitors [of the applicant]’ or the implementation for the ‘top 5 Schwermetall customers’ of an input foreclosure strategy in respect of ceasing all existing supply of pre-rolled strip. The fact that the report on the assessment of the risk of anticompetitive input foreclosure considered that the cessation of that supply might possibly result from increases in the price of pre-rolled strip supplied by Schwermetall in no way detracts from the fact that the report examined only the possibility of price increases of such magnitude that they would not be tenable for those competitors and would lead them to cease their purchases from Schwermetall.
445    On the other hand, even though, admittedly, in recital 189 of the contested decision, the Commission mentions the possibility that the change from joint to the applicant’s sole control over Schwermetall might lead to the elimination of future small competitors on the rolled-products market, it is clear from the analysis it carried out in Section 6.9 of the contested decision and, in particular, from the intermediate conclusion which it drew in recital 707 of that decision that its analysis was based on the hypothesis of a change in the portfolio range or price of pre-rolled strip supplied by Schwermetall which, without fully preventing its customers from having access to the relevant market, would be such as to hinder their expansion on that market.
446    In that context, for the reasons already stated in paragraph 91 above for the purposes of rejecting the fourth plea, the Commission was justified in applying, in the present case, the principles laid down in the Guidelines on the assessment of non-horizontal mergers.
447    Moreover, as is apparent from the conclusions drawn in paragraphs 397, 413 and 415 above, the Commission was justified in finding that neither MKM, nor KME, nor the new entity MKM/KME, nor Sofia Med, nor MKM/KME and Sofia Med taken together could be regarded, in the short term, as an alternative to Schwermetall in order to supply Diehl, Griset, Kemper and Messingwerk Plettenberg with pre-rolled strip made of HPAs.
448    In addition, as has already been stated in paragraph 347 above, the Commission had gathered a body of evidence which enabled it to find that the customers of Schwermetall referred to in paragraph 447 above were in fact dependent on it for their supplies of pre-rolled strip in certain alloys, such as HPAs of the copper iron group or alloys of deep-drawing quality. They should therefore have absorbed the price increases invoiced by Schwermetall or passed them on to their own customers, in any event affecting their competitiveness on the relevant market, in particular in the ‘high-end’ segment of that market or in sub-segments belonging, essentially, to that segment.
449    As has already been observed in paragraph 206 above, the Commission was entitled to focus its analysis on a segment of the relevant market or sub-segments belonging, essentially, to that segment, driven by their own competitive dynamics and on which the anticompetitive effects of the concentration at issue would be the most substantial, namely, in the present case, those of ‘high-end’ rolled products manufactured from pre-rolled strip made of three HPAs of the copper iron group for which Diehl, Griset, Kemper and Messingwerk Plettenberg were particularly dependent on supplies from Schwermetall.
450    As the Commission correctly stated in recitals 695 and 696 of the contested decision, although those companies held limited market shares at the level of the relevant market, they were equally, like ARP, significant competitors of the applicant in the ‘high-end’ segment of that market or in sub-segments belonging, essentially, to that segment.
451    In recitals 699 and 700 of the contested decision, the Commission supported its assessments with a body of consistent and credible evidence, in so far as it emanated from undertakings which were directly affected by the vertical anticompetitive effects attributable to the concentration at issue, which was not specifically criticised by the applicant in the present action. First, it referred to the non-confidential responses of certain industrial customers, in particular those in the connectivity sector, including the applicant’s largest customer, TE Connectivity, in question 49.1 of questionnaire Q.1 and in questions 27 and 29 of questionnaire Q.4.2 of the market investigation, from which it was apparent that the applicant’s acquisition of Aurubis’ 50% stake in Schwermetall would strengthen its ability to set prices on the relevant market and risked entailing price increases on that market. Second, it referred to the non-confidential observations of certain competitors on the relevant market, made either in response to question 46.1 or 50 of questionnaire Q.1 of the market investigation, either during a telephone conversation of 21 June 2018, or in a note sent to the Commission on 26 June 2018 stating that the applicant’s acquisition of Aurubis’ 50% stake in Schwermetall would enable it to put an end to their supplies of pre-rolled strip from Schwermetall or to significantly worsen the existing commercial conditions, particularly by raising the prices invoiced by Schwermetall. In addition, in the light of the case-law previously cited in paragraphs 116 and 120 above, since the data at issue were credible, it was irrelevant that they were qualitative rather than quantitative.
452    The Commission’s assessments seeking to demonstrate vertical anticompetitive effects attributable to the concentration at issue which could reinforce and deepen the significant impediment to effective competition already resulting solely from the anticompetitive horizontal effects attributable to that concentration were therefore well founded.
453    In any event, even taking into account the hypothesis in the report on the assessment of the risk of anticompetitive input foreclosure, based on the total cessation, following the concentration at issue, of Schwermetall’s supply of pre-rolled strip to all or some of the competitors of the parties to that concentration on the relevant market, leading to a finding, in the third paragraph of point 7.2.1 of that report, that there was a risk of input foreclosure which might affect 5.8% of the market share held by those competitors on the relevant market, that effect could not be regarded as negligible.
454    As the Commission correctly observed in recitals 697 and 711 of the contested decision, in view of the high market share that the applicant would hold on the relevant market, following the concentration at issue, the affected volumes would represent a significant proportion of the sales made by each of the individual competitors concerned. Whereas the market shares of Diehl and Kemper on the relevant market were [5-10]% and [0-5]% respectively, the risk of their exclusion would relate, as is apparent from the Table in point 7.2.2 of the report on the assessment of the risk of anticompetitive input foreclosure, to a market share of 2.2% and 1.2%, that is to say a potential effect of more than [30-50]% for them.
455    As was pointed out in recital 702 of the contested decision, the applicant itself stated, in paragraph 208 of its reply to the statement of objections, that the effect of an input foreclosure strategy ‘might be relatively more significant for smaller competitors [such] as Kemper and Diehl, which [were then] purchasing relatively more pre-rolled strip than larger competitors like KME and MKM’.
456    It follows from the foregoing that the vertical anticompetitive effects of a strategy of complete foreclosure of access to pre-rolled strip, as analysed in that report, would not have been negligible on the relevant market, in particular in the ‘high-end’ segment of that market or sub-segments belonging, essentially, to that segment.
457    The present complaints must therefore be rejected as unfounded.
458    For those reasons, the fourth part of the eighth plea in law, taken as a whole, must be rejected. Accordingly, that plea in law must be rejected in its entirety.
459    In the light of the foregoing analyses, it must be held that the applicant has not succeeded in calling into question, in the context of the present action, the assessments which led the Commission to conclude, in Section 6.9 and in recital 724 of the contested decision, that the vertical anticompetitive effects of the concentration at issue, linked to the applicant’s sole control of Schwermetall, would reinforce and deepen the significant impediment to effective competition which would already result solely from the horizontal anticompetitive effects of that concentration (see paragraph 334 above), by allowing the applicant to hinder the expansion of important competitors on the relevant market, in particular in the ‘high-end’ segment of that market, where the applicant would focus its activities and which would become even more concentrated than formerly, after the elimination of ARP.
B.      The ninth plea in law, alleging errors of law and manifest errors of assessment concerning the adequacy of the proposed commitments
460    As stated in paragraph 5 of the Commission notice on remedies acceptable under Council Regulation No 139/2004 and under Commission Regulation (EC) No 802/2004 (OJ 2008 C 267, p. 1, ‘the Remedies Notice’), where a concentration raises competition concerns, in that it could significantly impede effective competition, in particular as a result of the creation or strengthening of a dominant position, the parties may seek to modify the concentration in order to resolve the competition concerns and thereby gain clearance of their merger in accordance with Article 8(2) of Regulation No 139/2004.
461    The Commission is under an obligation to examine a concentration as modified by the commitments validly proposed by the parties to the concentration. It can declare the concentration incompatible with the internal market only where those commitments are insufficient to prevent that transaction from significantly impeding effective competition in the internal market or in a substantial part of that market, in particular as a result of the creation or strengthening of a dominant position. The burden of proof placed on the Commission is without prejudice to its wide discretion where it is called upon to make complex economic assessments (judgment of 21 September 2005, EDP v Commission, T‑87/05, EU:T:2005:333, paragraph 63).
462    In the last resort, it remains for the Commission to demonstrate that that concentration, as modified by commitments, must be declared incompatible with the internal market because it still leads to the creation or the strengthening of a dominant position that significantly impedes effective competition (judgment of 21 September 2005, EDP v Commission, T‑87/05, EU:T:2005:333, paragraph 64).
463    Section II and, accordingly, paragraphs 4 to 21 of the Remedies Notice set out, in the light of the provisions of Regulation No 139/2004 and the case-law applying it, the ‘general principles’ applicable to commitments and, in particular, the respective obligations of the parties to the concentration and the Commission.
464    Section III and, accordingly, paragraphs 22 to 76 of the Remedies Notice, which analyse the ‘different types of remedies’ or commitments that may be proposed, begin by examining, in subsection 1, the ‘divestiture of a business to a suitable purchaser’.
465    The first proposed commitments entailed the divestiture of two ARP plants manufacturing rolled products in Zutphen and Pori (Finland) and three slitting centres in Slovakia, Italy and the United Kingdom, as well as a guarantee that Schwermetall’s industrial customers would continue to be supplied with pre-rolled strip for seven years, on the same terms as those prevailing before the concentration at issue. The Commission also recalled that, without consulting the market participants on the first proposed commitments, it had rejected them in the decision to initiate in-depth investigation proceedings, on the ground that they did not make it possible to remedy, fully and permanently, the likely significant impediment to effective competition which it had identified during the preliminary examination phase.
466    The applicant had also proposed two sets of commitments during the in-depth investigation, namely the second and third proposed commitments, in order to address the anticompetitive effects of the concentration at issue, which would result in a significant impediment to effective competition or would increase that impediment, which the Commission had first identified during the administrative proceedings and then found, on a preliminary basis, in the statement of objections and, definitively, in the contested decision. According to the Commission, the third proposed commitments were, to a large extent, similar to the second proposed commitments, which is why those commitments could be examined together and, unless otherwise specified, any reference to the third proposed commitments also applied, in essence, to the second proposed commitments. Lastly, the Commission indicated that, unlike the second proposed commitments, the third had been subject to a market test.
467    In Section 7.1 and, accordingly, in recitals 738 to 751 of the contested decision, the Commission recalled the principles applicable to remedies or commitments relating to concentrations.
468    In Section 7.2 and, accordingly, in recitals 752 to 757 of the contested decision, the Commission recalled the content of the third proposed commitments.
469    Like the second proposed commitments, the third proposed commitments provided for the divestiture of ARP plants in the Netherlands (Zutphen) and in Germany (Stolberg), which manufactured rolled products for the connectivity, electrical engineering, stampers, trade and tinning sectors and had tinning, electroplating and hot-dip tinning technologies, and, at the request of the purchaser, of three slitting centres in the EEA, in Italy, Slovakia and the United Kingdom and part of the ARP sales team (‘the divestment business’). They also provided for additional behavioural commitments, consisting of a unilateral commitment on the part of the applicant to conclude, at the request of the purchaser, a services and supply agreement, under which Schwermetall would be obliged to continue supplying the divestment business with pre-rolled strip for an initial period of three years, with the possibility of a two-year extension, by the purchaser, in accordance with the terms and conditions previously applicable, in particular as regards prices and volumes, with the exception of some possibilities for limited adjustments provided for in the agreement, and to supply toll treatment services for cast materials produced or supplied by the divestment business, also under the terms and conditions formerly applicable (‘the transitional services and supply agreement’).
470    In addition, the third proposed commitments provided, first, beyond the standard requirements which a purchaser had to satisfy in order to be regarded as suitable, as set out in the list in paragraph 48 of the Remedies Notice (independence, financial soundness, expertise, incentive and ability to develop the divested business, and the prima facie absence of new competition problems or risk of delay), a specific requirement relating to the fact that, in order to ensure the viability of the divestment business over the long term, that is to say, after the expiry of the transitional services and supply agreement, the purchaser must be in a position to ensure a sufficient supply of pre-rolled strip by means of its own captive or in-house production or through supply agreements concluded with other producers of pre-rolled strip (‘the specific requirement to ensure long-term supply of pre-rolled strip to the divestment business’). Second, the third proposed commitments provided that the concentration at issue could not be completed before the applicant or its representative had entered into a legally binding agreement with a purchaser for the whole of the divestment business or before the Commission had approved that purchaser and the terms of that agreement (the ‘up-front buyer’ clause).
471    Lastly, the Commission noted that, although, in the third proposed commitments, the applicant had followed, in order to ensure the divestiture of the divestment business to a suitable purchaser, the ‘up-front buyer’ method, described in paragraph 50 of the Remedies Notice, according to which the notifying parties could not complete the notified operation before having entered into a binding agreement with a purchaser for the divestment business, approved by the Commission, rather than the ‘fix-it-first’ method, referred to in the same paragraph, according to which the notifying parties must identify a purchaser for the divestment business and enter into a binding agreement already during the Commission’s procedure. Even though the applicant had identified several of the declared potential purchasers, namely Sofia Med and GBC, whose profile was examined in Section 7.3.1 of the contested decision, it had not entered into, during the administrative proceedings, any binding divestiture agreement with one or more purchasers relating to the whole of the divestment business.
472    In Section 7.3 and, accordingly, in recitals 758 to 932 of the contested decision, the Commission set out the reasons why it concluded, in Section 7.3.4 and, therefore, in recitals 931 and 932 of that decision, that, contrary to the applicant’s claim in form RM provided for in Annex IV to Commission Regulation (EC) No 802/2004 of 7 April 2004 on the implementation of Regulation No 139/2004 (OJ 2004 L 133, p. 1) (‘the Form RM’), the third proposed commitments were neither complete nor effective from all points of view, as required by the case-law, in so far as they would not have removed the significant impediment to the exercise of effective competition resulting from the removal of the competitive constraint exercised by ARP over the applicant or from the creation of a dominant position of the latter on the relevant market, which was found in Section 6 of the contested decision, with the result that the concentration at issue, as amended by those commitments, had to be declared incompatible with the internal market and the EEA Agreement.
473    In the context of the ninth plea in law, the applicant alleges errors of law and manifest errors committed by the Commission in the assessments which led it, in Section 7 of the contested decision, to reject the proposed commitments. The ninth plea is divided into four parts, the third of which contains, in essence, two limbs.
1.      The first part of the ninth plea in law
474    By the first part of the ninth plea, the applicant complains of an insufficient and erroneous assessment which led the Commission, in Section 7.3.3 and, accordingly, in recitals 801 to 930 of the contested decision, to find that the proposed commitments would not make it possible to remedy the anticompetitive effects attributable to the concentration at issue and, in particular, that the third proposed commitments would be insufficient to remedy the significant impediment to the exercise of effective competition resulting from the horizontal anticompetitive effects attributable to that concentration, owing, first, to the lack of divestiture of the key asset corresponding to Aurubis’ 50% stake in Schwermetall (Section 7.3.3.1 of the contested decision) and, second, continuing significant uncertainties as to whether the assets and resources of one of the declared potential purchasers would make it possible to eliminate that impediment (Section 7.3.3.2 of the contested decision). It is necessary to link to the first part of the ninth plea the arguments by which the applicant disputes, in the reply, the arguments put forward by the Commission in its defence that the third proposed commitments did not address the vertical anticompetitive effects attributable to the concentration at issue (Section 7.3.3.3 of the contested decision).
475    The Commission disputes the applicant’s arguments and contends that the first part of the ninth plea should be rejected as unfounded.
476    First of all, the applicant submits that the significant structural and behavioural commitments contained in the third proposed commitments, in particular the divestiture of the divestment business and the transitional services and supply agreement, would be sufficient to remedy the anticompetitive effects of the concentration at issue, in particular its horizontal anticompetitive effects, while ensuring the viability of that business. As the applicant claims it is apparent from recitals 804 to 807 of the contested decision, the divestment business represented [65-75]% of ARP’s activities and [10-15]% of the relevant market. The applicant states that it would itself have retained, following the concentration at issue, only a market share of [28-38]% on that market, compared with [40-50]% previously, whereas that of KME/MKM was [25-30]%.
477    In that regard, it must be noted that the Commission does not dispute and even recognised, in recitals 804 to 807 of the contested decision that, if the third proposed commitments were implemented, they would have a significant impact on the applicant’s position on the relevant market, in general, and on the ‘high-end’ segment of that market, in particular, and would potentially enable the purchaser of the divestment business to compete effectively with the applicant. However, it also observed that, for that to be the case, that purchaser would have to be in a position to operate the divestment business in a viable and competitive manner, by being capable, in particular, of supplying pre-rolled strip in a sufficient quantity and under sufficiently competitive conditions.
478    Next, in the light of the analyses carried out in recitals 808 to 817 of the contested decision, the Commission concluded, in recitals 803 and 818 of that decision, that the 50% held by Aurubis in Schwermetall, which had not been included in the third proposed commitments, constituted an essential and crucial element for the viability and competitiveness of the Stolberg plant and an important element for the viability and competitiveness of Zutphen, since the operation of those plants in a vertically integrated manner with Schwermetall allowed them to have access to high quality pre-rolled strip at low cost and with low transport costs.
479    In addition, in the light of the assessments made in recitals 820 to 833 of the contested decision, the Commission concluded, in recitals 819 and 834 of that decision, that it was not certain that the divestment business, once separated from the Aurubis group, within which it operated on a vertically integrated basis with Schwermetall, would be, at least at the time of its divestiture to a purchaser, a viable and standalone business and that the risks to the viability and competitiveness of that business, resulting from that separation, would be reduced to a minimum. In accordance with paragraph 36 of the Remedies Notice, it ‘[was] able to accept commitments which require the carve-out of a business if it [could] be certain that, at least at the time when the business [was] transferred to the purchaser, a viable business on a stand-alone basis [would] be divested and the risks for the viability and competitiveness caused by the carve-out [would] thereby be reduced to a minimum’.
480    Moreover, on the basis of the assessments made in recitals 836 to 843 of the contested decision, the Commission concluded, in recitals 835 and 844 of that decision, that the transitional services and supply agreement would be insufficient to allow the purchaser of the divestment business to develop independent sources of supply and created a risk of long-term commercial relationships between competitors on the relevant market.
481    Lastly, in Section 7.3.3.2 and, accordingly, in recitals 845 to 920 of the contested decision, the Commission found that there were significant uncertainties as to whether the structural deficiencies affecting the divestment business could and would be offset by the assets and resources of one of the declared potential purchasers, be it Sofia Med, GBC or KME/MKM.
482    In view of the fact that the divestment business was part of a vertically integrated activity within the Aurubis group, the Commission was fully entitled, in the present case, to ascertain, beyond the mere question of whether that business was of sufficient size to constitute a competitive force and to remedy the horizontal anticompetitive effects attributable to the concentration at issue on the relevant market, in particular in the ‘high-end’ segment of that market, whether, once separated from that activity and taking into account the proposed commitments, that business would be viable and standalone, and whether the risks for the viability and competitiveness of that business would be reduced to a minimum, in accordance with paragraph 36 of the Remedies Notice.
483    It follows that the applicant’s present complaint, based solely on the size and content of the divestment business, is not sufficient to establish that the Commission’s assessment relating to the structurally deficient nature of the third proposed commitments for the purpose of remedying the horizontal anticompetitive effects of the concentration at issue is incorrect, since, in the context of that complaint, the applicant has not put forward any substantiated argument against the Commission’s assessment that, first, the competitiveness of the divestment business would be significantly downgraded, after its separation from the Aurubis group because it would no longer operate in a vertically integrated manner with Schwermetall and, second, the transitional services and supply agreement would be insufficient to allow the divestment business to operate in a viable and standalone manner with respect to Schwermetall.
484    Moreover, the applicant itself maintained, in paragraph 158 of the application, that the Commission had ‘highlighted the existence of pre-rolled strip supplies from Schwermetall to Stolberg and pointed out possible viability concerns in case Stolberg was included in the remedy offer’ which the applicant claims to have remedied by means of the specific requirement, imposed on the declared potential purchasers, to ensure long-term supply of the divestment business with pre-rolled strip.
485    In addition, it should be noted that, in so far as, in the third part of the ninth plea, the applicant called those assessments into question, all of its arguments must be rejected for the reasons set out in paragraphs 525 to 575 below.
486    Consequently, the first part of the ninth plea must be rejected as unfounded as regards the horizontal anticompetitive effects attributable to the concentration at issue.
487    As regards the remedies provided by the third proposed commitments in respect of the vertical anticompetitive effects attributable to the concentration, first of all, the applicant criticises the Commission, by referring generally to the arguments developed under the eighth plea, for not having demonstrated the existence of effects allegedly linked to the fact that, after the acquisition of sole control over Schwermetall, it would be able to implement a strategy of foreclosing access to pre-rolled strip in order to remove some of its competitors from the relevant market and would have an incentive to do so. Next, it maintains that it demonstrated, in the context of the third part of the eighth plea, that potential access to sensitive commercial information concerning some of its competitors on the relevant market would be unlikely to confer on it a competitive advantage on that market. In addition, the applicant criticises the Commission for having proceeded on the basis that the third proposed commitments had to make it possible to remedy in full and independently all the vertical anticompetitive effects attributable to the concentration at issue, which was not consistent with its assessments that those effects were ancillary to the horizontal anticompetitive effects attributable to that concentration and should therefore have been analysed together with those effects. Lastly, the applicant maintains that the third proposed commitments were, in any event, sufficient to address the vertical anticompetitive effects attributable to the concentration at issue, as noted by the Commission in the contested decision.
488    In that regard, in so far as the applicant relies on the arguments put forward in support of the eighth plea, it must be borne in mind that, according to the examination of that plea, it has been found that the Commission had established to the requisite legal standard, in the contested decision, that the vertical anticompetitive effects of the concentration at issue, linked to the sole control which the applicant would exercise over Schwermetall, would reinforce and deepen the significant impediment to the exercise of effective competition resulting solely from the horizontal anticompetitive effects attributable to the concentration by allowing the applicant to hinder the development of important competitors on the relevant market, in particular in the ‘high-end’ rolled products sector, in which the applicant would concentrate its activities, which would become even more concentrated after the elimination of ARP (see paragraph 459 above).
489    In addition, in so far as the applicant refers, in particular, to the third part of the eighth plea, it must be borne in mind that that plea was rejected in its entirety (see paragraph 430 above), with the result that the Commission’s assessment in the contested decision that the applicant’s access, following the concentration at issue, to commercially sensitive information on an individual basis concerning those of its competitors on the relevant market which were also customers of Schwermetall would serve to provide it with the opportunity to restrict the development of those competitors on the relevant market is also confirmed.
490    For the foregoing reasons, the complaints based on the arguments put forward by the applicant in support of the eighth plea in law and, in particular, the third part of that plea must be rejected.
491    In so far as the applicant complains, in essence, that the Commission assessed independently whether the third proposed commitments would fully remedy the vertical anticompetitive effects of the concentration at issue, it must be noted that, as has already been stated in paragraph 442 above, in the contested decision, the Commission considered that the vertical anticompetitive effects of the concentration at issue, in particular those linked to the implementation of a strategy of foreclosure of access to pre-rolled strip, would reinforce and deepen the significant impediment to effective competition on the relevant market which already resulted from the horizontal anticompetitive effects attributable to that concentration, with the result that they were only incidental.
492    The Commission would be required to make an overall and coordinated assessment of the third proposed commitments as regards the anticompetitive, horizontal and vertical effects of the concentration at issue only if it found that the significant impediment to effective competition on the relevant market would itself result from the combination of those effects.
493    In the present case, the Commission found, in Sections 7.3.3.1 and 7.3.3.2 of the contested decision, that, in the absence of divestiture of the key asset corresponding to Aurubis’ 50% stake in Schwermetall, the third proposed commitments were structurally inadequate for the purpose of eliminating in full the significant impediment to the exercise of effective competition identified in Section 6 of the contested decision, resulting solely from the horizontal anticompetitive effects of the concentration at issue, and that, even if the assets and resources of the declared potential purchasers were taken into account, significant uncertainty would remain as to whether they could eliminate that impediment. On the basis of that finding alone, the Commission was therefore not entitled to accept the third proposed commitments, in accordance with paragraph 9 of the Remedies Notice, from which it follows that ‘the commitments have to eliminate the competition concerns entirely … and have to be comprehensive and effective from all points of view’.
494    By contrast, in such a situation, there was nothing to prevent the Commission from continuing its analysis by finding, independently and additionally, that nor did the third proposed commitments make it possible to address the vertical anticompetitive effects of the concentration at issue, which would reinforce and deepen the significant impediment to effective competition already arising solely from the horizontal anticompetitive effects of that concentration.
495    Accordingly, the present complaint must also be rejected as unfounded.
496    In so far as the applicant complains, in essence, that the Commission did not find that the third proposed commitments would fully remedy the vertical anticompetitive effects of the concentration at issue, it should be borne in mind that, in Section 7.3.3.3 and, accordingly, in recitals 921 to 930 of the contested decision, the Commission observed that, like the second proposed commitments, those commitments did not take into consideration, nor, a fortiori, correct, the vertical anticompetitive effects attributable to the concentration, linked to the acquisition by it of sole control of Schwermetall and to the fact that it would have the ability and incentive to raise the production costs of those of its competitors on the relevant market which depended on Schwermetall for their supply of pre-rolled strip and that it would have access to commercially sensitive information on an individual basis concerning those competitors. The Commission found that the transitional services and supply agreement did not concern Schwermetall’s customers on the pre-rolled strip merchant market and that there was nothing in the file before it to support the conclusion that Schwermetall would increase its sales on the pre-rolled strip merchant market to use the production capacity freed by the Stolberg and Zutphen plants, after their divestiture, pushing prices down on that market.
497    For those reasons, the present complaint must be rejected as unfounded.
498    Consequently, the first part of the ninth plea must also be rejected as regards the vertical anticompetitive effects of the concentration at issue, with the result that that part of the plea is rejected in its entirety.
2.      The second part of the ninth plea in law
499    By the second part of the ninth plea, the applicant alleges infringement by the Commission of the duty of care and of the principle of good administration in the analysis and development of the successive proposed commitments during the administrative proceedings. It criticises the Commission for having required it to abandon the first proposed commitments, providing for the divestiture of ARP’s Zutphen and Pori plants, in addition to behavioural supply commitments, by insisting on the divestiture of ARP’s Stolberg plant, while knowing that that was not a satisfactory solution, since it was not viable, because that plant was dependent on Schwermetall for its pre-rolled strip supplies. In response to the first proposed commitments, the Commission clearly stated, in the decision to initiate in-depth investigation proceedings, that behavioural commitments concerning Schwermetall were insufficient and that structural commitments and the divestiture of the Stolberg plant were necessary to resolve the competition problems identified in the alleged segment for ‘high-end’ rolled products. In those circumstances, the waiver of the behavioural commitments and the commitment to divest the Stolberg plant cannot be regarded as resulting from its ‘own choice’, as the Commission maintains. The applicant maintains that the Commission cannot claim, in paragraph 191 of the defence, that it discovered only during the in-depth investigation proceedings the commercial relationship between Schwermetall and the Stolberg plant, since reference had already been made to it in the Form CO.
500    The Commission disputes the applicant’s arguments and contends that the second part of the ninth plea should be rejected as unfounded.
501    In so far as the present plea is based on an alleged infringement of the principle of good administration, it is important, first of all, to recall that Article 41 of the Charter of Fundamental Rights of the European Union, which, under Article 6(1) TEU, has the same legal value as the Treaties, enshrines the right to good administration. According to the case-law, the administration is required, in accordance with that principle, to examine all the relevant particulars of the case before it with care and impartiality and gather all the factual and legal information necessary to exercise its discretion and it must ensure the proper conduct and effectiveness of proceedings which it sets in motion (see judgment of 26 September 2014, B&S Europe v Commission, T‑222/13, not published, EU:T:2014:837, paragraph 39 and the case-law cited).
502    In the present case, the applicant alleges infringement of the principle of good administration, in conjunction with the Commission’s duty of care, particularly in merger procedures.
503    In that regard and according to settled case-law, where the EU institutions have a discretion, as is the case with complex economic assessments in the field of the control of concentrations (see paragraph 461 above), respect for the rights guaranteed by the EU legal order in administrative procedures is of even more fundamental importance. Those guarantees include, in particular, the duty of the competent institution to examine carefully and impartially all the relevant aspects of the individual case (see judgment of 7 May 2009, NVV and Others v Commission, T‑151/05, EU:T:2009:144, paragraphs 163 and 164 and the case-law cited).
504    However, with regard to control of concentrations, the Commission’s obligation to respect the rights guaranteed by the EU legal order in administrative proceedings – hence also its obligation to comply with the duty of care – must be interpreted in a way which is compatible with the need for speed which characterises the general scheme of Regulation No 139/2004 and which requires the Commission to meet tight deadlines when it exercises its discretion (see judgment of 7 May 2009, NVV and Others v Commission, T‑151/05, EU:T:2009:144, paragraph 166 and the case-law cited).
505    In the present case, during the preliminary stage of the administrative proceedings, the applicant submitted to the Commission the first proposed commitments in order to remove the serious concerns raised by the concentration at issue. As provided for in paragraph 83 of the Remedies Notice, the Commission examined those commitments and informed the applicant, in paragraphs 181 to 183 of the decision to initiate in-depth investigation proceedings, of the reasons why it considered that those commitments were not sufficient to address its serious concerns regarding the anticompetitive effects attributable to the concentration at issue, in particular because the divestiture of the Zutphen and Pori plants would not have solved the problem of overlap of the activities of the parties to that concentration in the ‘high-end’ segment of the relevant market (see paragraph 465 above). In those paragraphs, the Commission did not refer to the divestiture of the Stolberg plant. In the context of the present complaint, the applicant has not put forward any substantiated argument to challenge the Commission’s assessments relating to the inadequacy of the first proposed commitments.
506    During the in-depth investigation proceedings, the applicant submitted to the Commission the second and third proposed commitments, in order to remedy the anticompetitive effects of the concentration at issue identified by the Commission, which included the divestiture of the Zutphen and Stolberg plants. In accordance with paragraph 6 of the Remedies Notice, the Commission was required to examine those commitments and to inform the applicant of its preliminary assessment of those commitments and it had no choice but to adopt a prohibition decision if it found that those commitments, while properly submitted, were not sufficient to eliminate the competition concerns that it had identified.
507    After submitting the third proposed commitments for a market test, the Commission informed the applicant that those commitments, although they addressed the first issue of overlap of the activities of the parties to the concentration at issue, as identified, were not sufficient to remedy all the horizontal anticompetitive effects of that concentration, since there remained a second competition problem, linked to the divestment business’s dependence on the supply of pre-rolled strip from Schwermetall, which was not fully resolved by those commitments.
508    In so far as the applicant complains that the Commission required the divestiture of the Stolberg plant, in the full knowledge of the fact that such a divestiture would not be sufficient to eliminate the competition problems that it had identified, owing to the dependence of that plant on pre-rolled strip supplies from Schwermetall, it should be noted, on the one hand, that, in accordance with paragraph 6 of the Remedies Notice, it is for the parties to the concentration to put forward commitments, while the Commission is not in a position to impose them unilaterally.
509    Contrary to what the applicant claims, the applicant’s submission of the second and third proposed commitments, including the divestiture of the Stolberg plant, cannot therefore be regarded as the result of a constraint exerted on it by the Commission. Rather, it was the applicant’s exercise of an option available to it to attempt to resolve competition concerns linked to the concentration at issue, which the first proposed commitments had not sufficiently addressed, and to obtain a clearance decision from the Commission. Since the Stolberg plant was active in the ‘high-end’ segment of the relevant market, its divestiture was capable of addressing the problem of overlap of the activities of the parties to the concentration at issue in that segment, as the Commission confirmed, in essence, in recitals 804 to 807 of the contested decision.
510    On the other hand, the fact that the divestiture of the Stolberg plant was not sufficient to address all the competition problems identified by the Commission is not sufficient for the Commission to be considered to have failed to fulfil its duty of care by allowing the applicant to include that measure in the second and third proposed commitments, or even by encouraging it to do so in the hope of obtaining a clearance decision.
511    First, the divestiture of the Stolberg plant was a necessary prerequisite for solving the first competition problem identified by the Commission, linked to the overlap between the activities of the parties to the concentration at issue in the ‘high-end’ segment of the relevant market.
512    Second, the competition problem linked to the divestment business’s dependence on pre-rolled strip supplies from Schwermetall was not solely due to the inclusion of the divestiture of the Stolberg plant in the second and third proposed commitments, since it also arose, albeit to a lesser extent, with regard to the Zutphen plant, the divestment of which was already planned for in the first proposed commitments.
513    Third, the Commission states that it only discovered the extent and significance of the dependence of the Stolberg and Zutphen plants on pre-rolled strip supplies from Schwermetall during the in-depth investigation proceedings, in the light, in particular, of ARP’s internal documents, since the applicant had provided it with all the relevant, necessary and detailed information in that regard, within the meaning of paragraph 7 of the Remedies Notice, only in the Form RM relating to the second proposed commitments.
514    Admittedly, an internal ARP document, attached in Annex A.53 to the Form CO and cited in recital 810 of the contested decision, contained estimates of the pre-rolled strip volumes supplied to the Stolberg and Zutphen plants respectively by Schwermetall in 2018-2019, which were reproduced in paragraph 505 of the statement of objections.
515    However, that information was not as precise as that, divided into alloy groups, for 2017, which was communicated subsequently to the Commission, in point 181 of the Form RM relating to the third proposed commitments, as set out in Table 29 in recital 810 of the contested decision, which enabled the Commission to gain a better understanding of the extent and significance of the dependence of the Stolberg and Zutphen plants on pre-rolled strip supplies from Schwermetall.
516    In view of the need for speed which characterises the general scheme of Regulation No 139/2004, the Commission must comply with strict time limits and can take into account only the information available to it when it must exercise its discretion. The fact that it adapts or refines its assessments in the light of the new information sent to it during the administrative proceedings cannot therefore be regarded as a failure on its part to fulfil its obligation to examine carefully and impartially all the relevant aspects of the individual case in order to make its assessments, in particular as regards the suitability of the commitments submitted to it.
517    Fourth, the assessment that the second and third proposed commitments did not make it possible fully to resolve the dependence of the divestment business on pre-rolled strip supplies from Schwermetall was based in particular on the finding, set out in recital 818 of the contested decision, that, in the absence of divestiture of the key asset corresponding to Aurubis’ 50% stake in Schwermetall, the second and third proposed commitments would be structurally inadequate to eliminate the significant impediment to the exercise of effective competition identified in Section 6 of the contested decision. To that extent, the rejection of those commitments cannot be attributed to a failure on the part of the Commission to fulfil its obligation to examine carefully and impartially all the aspects relevant to their assessment, but rather to the insufficiency of the content of those commitments.
518    Fifth, as the Commission correctly observes, the second and third proposed commitments were also rejected, as is apparent from Section 7.3.3.3 of the contested decision, on the ground that they did not address the vertical anticompetitive effects attributable to the concentration at issue that had been identified in the contested decision and confirmed during the in-depth investigation proceedings, as indicated in recital 929 of that decision, effects which would reinforce or deepen the significant impediment to effective competition that already resulted from the horizontal anticompetitive effects attributable to that concentration.
519    It is true that the applicant claimed that the divestiture of the divestment business would remedy the vertical anticompetitive effects of the concentration at issue, resulting from the possibility and incentive that it allegedly would have to use its sole control over Schwermetall to raise the production costs of those of its competitors on the relevant market which sourced pre-rolled strip from Schwermetall. According to the applicant, since the divestment business would benefit from alternative sources of supply, Schwermetall would find itself with free production capacity which it would have to use by selling more pre-rolled strip on the merchant market, pushing prices downward on that market.
520    On the one hand, that would not remedy the vertical anticompetitive effect of the concentration at issue resulting from the applicant’s access to commercially sensitive information on an individual basis concerning those of its competitors on the relevant market which depended on Schwermetall for their supplies of pre-rolled strip.
521    On the other hand, as the Commission found in Section 7.3.3.2 of the contested decision, in their declarations of interest, the declared potential purchasers had confirmed that they wished to pursue the commercial relationship between the Stolberg or Zutphen plant and Schwermetall, even after the period of performance of the transitional services and supply agreement, and the market test on the third proposed commitments had also confirmed that the continuation of such a relationship was likely. Thus, the Commission could not be certain that, after the divestiture of the divestment business, Schwermetall would have, in the short term, pre-rolled strip production capacities that it could use only by selling more pre-rolled strip on the merchant market.
522    Thus, the indirect effect referred to by the applicant in its written pleadings, as recalled in paragraph 519 above, was not established and, moreover, had not been mentioned by the applicant in the Form RM relating to the third proposed commitments.
523    In the light of all the foregoing considerations, no breach by the Commission of the duty of care and of the principle of good administration can be found, in the present case, in the context of the analysis and development of the successive proposed commitments during the administrative proceedings.
524    For those reasons, the second part of the ninth plea in law must be rejected as unfounded.
3.      The third part of the ninth plea in law
525    By the third part of the ninth plea, the applicant complains of a lack of justification and of the disproportionate nature of the assessments, in Section 7.3.3 and, accordingly, in recitals 801 to 930 of the contested decision, according to which, in the absence of the divestiture of the key asset corresponding to Aurubis’ 50% stake in Schwermetall, the divestment business was structurally unsuitable for the purpose of eliminating the significant impediment to effective competition identified in Section 6 of the contested decision, resulting from the elimination of the competitive constraint exercised over it by ARP or the creation of a dominant position occupied by it on the relevant market.
526    The third part of the ninth plea consists, in essence, of two limbs.
(a)    The first limb of the third part of the ninth plea in law
527    In the context of the first limb of the third part of the ninth plea, the applicant complains that the Commission, in Section 7.3.3.1 and, more specifically, in recitals 803 to 818 of the contested decision, carried out an insufficient and flawed assessment by finding that, before the concentration at issue, Aurubis’ 50% stake in Schwermetall was an essential and crucial element for the viability and competitiveness of ARP’s Stolberg plant and an important element for the viability and competitiveness of ARP’s Zutphen plant.
528    According to the applicant, after Schwermetall’s separation from ARP’s Zutphen and Stolberg plants, the viability and competitiveness of those plants would be sufficiently guaranteed by the additional behavioural commitments offered, as referred to in recitals 753 to 757 of the contested decision, namely, first, the unilateral commitment, on its part, to enter into the transitional services and supply agreement, second, the specific requirement to ensure the long-term supply of the divestment business with pre-rolled strip and, third, the ‘up-front-buyer’ clause, under which the concentration at issue could not take place before the sale of the divestment business had been finalised with one or more purchasers approved by the Commission and the three declared potential purchasers, namely Sofia Med, GBC and KME (now KME/MKM) which would be suitable to supply the divestment business with pre-rolled strip.
529    The applicant submits that, contrary to what the Commission maintained in recitals 818 to 834 of the contested decision and as submitted in paragraph 164 of the application, the divestment business included technologically well-equipped factories, with attractive product ranges capable of operating independently and on a lasting basis. Only part of the pre-rolled strip used came from Schwermetall and the transition could, first, be ensured by the transitional services and supply agreement, then by one or another of the declared potential purchasers, which would have sufficient time to find alternative suppliers or to increase their own capacity to produce pre-rolled strip, as confirmed by certain market participants referred to in recital 838 of the contested decision. Contrary to the Commission’s contention, the applicant has always maintained that ARP’s Stolberg plant was a viable ‘standalone business’. The advantageous prices which Schwermetall charged to ARP were transfer prices based on a profit-sharing principle within the Aurubis group, which had no economic relevance and could not be compared with market prices, in recital 814 of the contested decision. The Commission did not explain why some industrial customers thought that Diehl and Kemper were closer competitors to the applicant than ARP, since the price advantages enjoyed by the latter were limited, in particular those linked to supplies of pre-rolled strip made of HPAs, as demonstrated by its low market share in the sub-segment
for rolled products made of HPAs.
530    The Commission disputes the applicant’s arguments and contends that the first limb of the third part of the ninth plea should be rejected as unfounded.
531    First of all, the applicant maintains that ARP’s Zutphen and Stolberg plants, included in the divestment business, were technically well equipped and had attractive product ranges, in particular in the alleged ‘high-end’ segment of the relevant market.
532    The Commission did not dispute that fact, which it even acknowledged in recitals 805 and 806 of the contested decision.
533    Although, in the contested decision, it did not find that the divestment business was a viable and standalone business, that was for a different reason, set out in recital 807 of that decision, relating to the fact that it was not certain that the potential purchaser of that business would be able to supply it with pre-rolled strip in sufficient quantities and under sufficiently competitive conditions once it had been separated from Schwermetall, with which it had hitherto operated in a vertically integrated manner.
534    In those circumstances, the present complaint must be rejected as unfounded.
535    The applicant also complains that the Commission did not find that, as it had previously indicated in point 2(h) and points 75 to 85 of the Form RM relating to the third proposed commitments, the Zutphen and Stolberg plants were capable of operating independently and on a lasting basis. In response to the Commission’s arguments, the applicant maintained that only some of the pre-rolled strip used by those plants came from Schwermetall. Furthermore, the viability of those plants would be sufficiently ensured by the supplementary behavioural commitments proposed in the third proposed commitments, the transition being possible to ensure, first, by way of the transitional services and supply agreement, and then, by one or other of the declared potential purchasers, namely Sofia Med, GBC or KME (now KME/MKM), which all satisfied the specific requirement of ensuring the long-term supply of the divestment business with pre-rolled strip and which would have sufficient time to find other suppliers or to increase their own pre-rolled strip production capacities, as confirmed by certain market participants and by the ‘up-front buyer’ clause which prevented the concentration at issue from being put into effect before a suitable buyer was found.
536    The Commission considers that it correctly concluded, in the contested decision, that the divestment business was not a viable and standalone business.
537    In that regard, although, in point 2(h) and points 75 to 85 of the Form RM relating to the third proposed commitments, the applicant claimed that the divestment business was viable and standalone, it did not deny that the Stolberg and Zutphen plants were dependent on Schwermetall for their pre-rolled strip supplies. As has already been observed in paragraph 484 above, the applicant itself acknowledged, in paragraph 158 of the application, ‘possible viability concerns in case Stolberg was included in the remedy offer’, on account of that dependence.
538    In particular, the applicant has not disputed the Commission’s findings, set out in recital 811 of the contested decision, that, first, the Stolberg plant sourced all its pre-rolled strip from Schwermetall, including that made of HPAs, pure copper, brass and bronze, and, second, the Zutphen plant sourced pre-rolled strip from Schwermetall for the manufacture of its pure and micro-alloyed copper rolled products, which represented [25-30]% of its sales in the EEA.
539    It is true that the applicant claimed, in point 84 of the Form RM relating to the third proposed commitments, that the problem of the dependence of the Stolberg and Zutphen plants on supplies from Schwermetall would be resolved by the specific requirement of ensuring the long-term supply of the divestment business with pre-rolled strip, which potential purchasers would have to satisfy in order to be considered suitable.
540    In that regard, it should be noted that, although, in the third proposed commitments, the applicant had followed the ‘up-front buyer’ method rather than the ‘fix-it-first’ method, it had nevertheless identified several declared potential purchasers, namely Sofia Med and GBC, as well as KME, which, in its view, met the specific requirement of ensuring the long-term supply of the divestment business with pre-rolled strip (see paragraph 471 above).
541    As the Commission found, in Section 7.3.3.2 of the contested decision, the declared potential purchasers, in their declarations of interest, had all confirmed that they wished to continue the commercial relationship between the Stolberg and Zutphen plants, on the one hand, and Schwermetall, on the other, even after the expiry of the transitional services and supply agreement, and the market test on the third proposed commitments had confirmed that the continuation of that relationship was likely.
542    Thus, the specific requirement of ensuring the long-term supply of the divestment business with pre-rolled strip did not guarantee that it would be possible, in practice, to find a purchaser potentially capable of operating the divestment business independently of Schwermetall.
543    Nor did it guarantee that the alternative which the divestment business would benefit from would be equivalent to that offered by Schwermetall and would not affect its viability and competitiveness.
544    In particular, as the Commission found in recitals 345 and 814 of the contested decision, in view of the preferential conditions enjoyed by the divestment business when it sourced pre-rolled strip from Schwermetall, it had a cost advantage of at least between 8 and 15% over its competitors that sourced their supplies on the merchant market. That advantage, in terms of costs, as well as other benefits linked to quality, the portfolio of alloys available, innovation, reduced transport costs and just-in-time deliveries linked to supplies and treatment services provided by Schwermetall, would be lost, which, according to a large majority of the industrial customers that responded to the questionnaire on the third proposed commitments, would affect the competitiveness of the divestment business.
545    The applicant submits that the prices charged by Schwermetall to the divestment business were, from an economic point of view, entirely irrelevant in so far as they were transfer prices, fixed for the purposes of optimising the allocation of profits made within the Aurubis group, and were not comparable with market prices.
546    That argument is itself entirely irrelevant, since, irrespective of the aim pursued by the Aurubis group in Schwermetall’s invoicing of pre-rolled strip at cost price, or even a little below that price, to the divestment business, such invoicing actually had the effect of conferring on that business, on the relevant market, a competitive advantage, in terms of costs, over its competitors that obtained their supplies at market prices on the merchant market.
547    The applicant also submits that the fact that some industrial customers thought Diehl and Kemper to be closer competitors of the applicant than ARP demonstrated that the advantageous rates enjoyed by the divestment business were not decisive, in competition terms, particularly in the sub-segment for rolled products made of HPAs, in which ARP had only a small share of the market.
548    In that regard, it is sufficient to note that examination of the second part of the fifth plea in law (see paragraphs 126 to 138 above) did not call into question the merits of the Commission’s findings in Section 6.3.2.1 of the contested decision, according to which, before the concentration at issue, the parties to the concentration were important and close competitors, in particular in the ‘high-end’ segment of the relevant market, inter alia because of the fact, noted in recital 345 of the contested decision, that ARP had a cost advantage over those of its competitors that sourced pre-rolled strip from Schwermetall on the merchant market.
549    Accordingly, the present complaint must be rejected as unfounded.
550    For those reasons, the first limb of the third part of the ninth plea in law must be rejected as unfounded. It follows that the applicant has not succeeded in calling into question, in the present action, the Commission’s assessment, in Section 7.3.3.1 and, more specifically, in recitals 803 to 818 of the contested decision, that, prior to the concentration at issue, Aurubis’ 50% stake in Schwermetall constituted an essential and crucial element for the viability and competitiveness of the ARP plant in Stolberg and an important element for the viability and competitiveness of ARP’s Zutphen plant, which were included in the divestment business.
(b)    The second limb of the third part of the ninth plea in law
551    In the context of the second limb of the third part of the ninth plea, the applicant criticises, as being neither justified nor proportionate, the assessments made by the Commission in Section 7.3.3.2 and, accordingly, in recitals 845 to 865 of the contested decision, according to which, in the absence of the conclusion of a sale and purchase agreement for the divestment business between the applicant and one of the declared potential purchasers or of the applicant’s clear commitment, vis-à-vis one of them, to sell that business to it, it was not possible to take into account the resources of those purchasers for the purposes of assessing whether the third proposed commitments were sufficient to remedy the anticompetitive effects attributable to the concentration at issue.
552    In recitals 845 to 865 of the contested decision, the Commission set out the conditions which had to be satisfied in order for it to be able to accept commitments based on the divestiture of a business, where those commitments did not include a key asset for the viability and competitiveness of that business, as was, in the present case, the case in respect of Aurubis’ 50% stake in Schwermetall, because of the dependence of the Zutphen and, in particular, Stolberg plants with regard to pre-rolled strip and toll treatment services supplied by Schwermetall.
553    The Commission stated that, in general, and as is apparent from paragraphs 54 and 55 of the Remedies Notice, the ‘up-front buyer’ method was intended to accelerate the divestiture of the divestment business, in itself viable, in cases where it was faced with serious obstacles, such as the rights of third parties, or where serious risks, such as the possible departure of employees essential to that business, affected the preservation of the competitiveness or saleability of that business in the interim period until divestiture, by encouraging the parties, in order to be able to close their transaction, to remove such obstacles or risks as quickly as possible. On the other hand, as is apparent from paragraph 57 of the Remedies Notice, the ‘fix-it-first’ method was required where the divestment business was not viable and competitive in itself, but could only be ensured by specific assets of the purchaser. The ‘up-front buyer’ clause did not, in itself, make it possible to resolve that problem of viability and could not therefore be regarded as equivalent to the ‘fix-it-first’ method in a situation where, as in the present case, the other measures proposed in the commitments were not sufficient to resolve that problem either.
554    Lastly, the Commission stated, for the sake of completeness and in the light of the assessments in recitals 866 to 920 of the contested decision, that, even taking into account the resources of the declared potential purchasers, taken separately or together, it did not have sufficient certainty that they would be suitable for the purpose of taking over the divestment business, since none of them had the ability to maintain and develop that business in a viable and standalone manner on the relevant market or the incentive to do so and that they were likely to maintain the commercial relationships established with Schwermetall even after the expiry of the transitional services and supply agreement. The question was therefore not whether the declared potential purchasers could operate the divestment business, but whether they could do so wholly independently of Schwermetall. The ‘up-front buyer’ method was not suitable, in that context, because it could potentially have led to a long period of uncertainty as to the feasibility of the concentration at issue, in the absence of sufficient assurances as to the existence of purchasers suitable for the purpose of remedying the anticompetitive effects of that concentration, contrary to the principle of legal certainty, which was referred to in recital 25 of Regulation No 139/2004, and to the principle that it must be sufficiently certain that the commitments proposed could be fully implemented, set out in paragraph 14 of the Remedies Notice.
555    In the context of the second limb of the third part of the ninth plea, the applicant puts forward three complaints.
556    By the first complaint, the applicant submits that, contrary to what the Commission stated in the context of the main reasoning set out in recital 865 of the contested decision, the Commission should have taken into account the resources of the declared potential purchasers in its assessment of the third proposed commitments.
557    The applicant maintains that, contrary to what the Commission stated in the contested decision, it should have taken account of the possibilities of alternative supply ensured by the ‘up-front buyer’ clause and by the specific requirement of ensuring the long-term supply of the divestment business with pre-rolled strip. The ‘fix-it-first’ solution was not essential, contrary to what the Commission claimed. It should have taken into account the resources of the declared potential purchasers, as it did in previous decisions, in accordance with paragraph 30 of the Remedies Notice and the provisions of Regulation No 139/2004. The Commission was not entitled to criticise it for the lack of a clearly identified purchaser, since each of the declared potential purchasers submitted to it the profitability analyses of the divestment business and the viability of that business was ensured by the ‘up-front buyer’ clause and by the specific requirement to ensure that that business would be supplied with pre-rolled strip in the long term. Paragraphs 50 and 57 of the Remedies Notice recognise that the ‘up-front buyer’ clause is generally equivalent to the ‘fix-it-first’ solution and acceptable. It would not have been sufficient for the Commission to maintain, in the present case, that the divestment business was structurally inappropriate because, taken as a whole, the second and third proposed commitments would ensure that the implementation of the concentration at issue was conditional on a viable divestiture of that business, with any risk of failure being borne by that business. Consequently, there was never a risk of undermining competition between the time when the concentration at issue was implemented and the time when the proposed commitments were implemented.
558    The Commission disputes the applicant’s arguments and contends that the first complaint should be rejected as unfounded.
559    As a preliminary point, it should be noted that, even though the Commission took into account, in recitals 866 to 920 of the contested decision, the resources of the declared potential purchasers, in order to ascertain whether they would be capable of compensating for and would in fact compensate for the lack of inclusion of a key asset, corresponding to Aurubis’ 50% stake in Schwermetall, in the divestment business under the terms of the third proposed commitments, that is not sufficient to consider that the arguments raised in that regard by the applicant, in the context of the present complaint, are fully effective. That taking into account of the resources of the declared potential purchasers forms part of reasoning put forward in the alternative, as is apparent from recital 862 of that decision, which should be taken into account and examined in substance by the Court only in the event that the Court should find that the primary statement of reasons is incorrect.
560    For those reasons, it is necessary to begin by examining whether the Commission was justified in asserting, by way of its main reasoning, that it was not required to take into account the resources of potential purchasers, including those of the declared potential purchasers, in its analysis of the third proposed commitments.
561    First of all, the applicant submits that the Commission was not justified in criticising it, in recital 851 of the contested decision, for not having clearly identified a purchaser for the divestment business, when each of the declared potential purchasers had submitted a letter of declaration of interest to the Commission containing analyses relating to the profitability of the divestment business.
562    In that regard, as is apparent from paragraphs 10 and 30 of the Remedies Notice, read together, the applicable principle, where the proposed commitments are based on the divestiture of a business, is that the business is viable in itself, so that the resources of a future or potential purchaser, or even a presumed purchaser, do not have to be taken into consideration. By way of exception, such resources are taken into account where an agreement for the sale and purchase of the business to be sold has already been concluded with a purchaser identified during the administrative proceedings before the Commission. Moreover, as is apparent from recital 850 of the contested decision, the Commission has already agreed, for example in its decision in Case M.7278 – General Electric/Alstom (Thermal Power – Renewable Power & Grid Business), to extend that exception, by analogy, to a situation in which the parties to a concentration transaction undertook unilaterally to assign the business to a previously identified purchaser, by suspending completion of the transaction until that divestiture took place.
563    In the present case, as the Commission correctly noted, in recital 851 of the contested decision, the applicant had neither concluded an agreement for the sale and purchase of the divestment business with any of the declared potential purchasers nor had it clearly undertaken to sell that business to one of them. That finding is not altered by the fact that those purchasers had submitted to the Commission a letter of declaration of interest containing analyses relating to the profitability of the divestment business. Such statements had no binding effect either on those buyers or on the applicant, and did not provide the Commission with a guarantee that they had already legally committed themselves, during the administrative proceedings, to purchasing the divestment business.
564    In so far as the applicant refers to other decisions in which the Commission applied, by analogy, paragraph 30 of the Remedies Notice, in particular the decision in Case M.7278 – General Electric/Alstom (Thermal Power – Renewable Power & Grid Business), it does not indicate how the situation in the present case was comparable to that giving rise to those decisions and justified taking into account, in those decisions, the resources of the declared potential purchasers.
565    Thus, the Commission was right to find, in recital 851 of the contested decision, that the situation in the present case did not correspond, and was not even similar, to that envisaged in paragraph 30 of the Remedies Notice, which entailed taking into account the resources of any purchaser which was clearly identified in an agreement for the sale and purchase of the divestment business or in a unilateral commitment by the parties to the concentration transaction to divest that business, while making that transaction conditional upon that divestiture, which had been adopted in the course of the administrative proceedings.
566    The present argument must therefore be rejected as unfounded.
567    Next, the applicant criticises the Commission for not having found, in recitals 851, 856 and 861 of the contested decision, that the method based on the ‘up-front buyer’ clause and on the specific requirement to ensure the long-term supply of the divestment business with pre-rolled strip, used in the third proposed commitments in order to justify the suitability of the declared potential purchasers, was equivalent to the ‘fix-it-first’ method and therefore also required that the resources of those purchasers be taken into account.
568    As stated in paragraph 57 of the Remedies Notice, to which paragraph 30 of that notice refers, the Commission welcomes the ‘fix-it-first’ method where the identity of the purchaser is crucial for the effectiveness of the proposed commitments, in particular where only very few potential purchasers can be considered suitable, in particular as the divested business is not a viable business in itself, but its viability will only be ensured by specific assets of the purchaser. However, the last sentence of that paragraph also indicates that, in those situations, an ‘upfront buyer’ solution containing specific requirements as to the suitability of a purchaser will generally be considered equivalent and acceptable.
569    However, the Commission was right to point out that it does not follow from the last sentence of paragraph 57 of the Remedies Notice that an ‘up-front buyer’ solution containing specific requirements as to the suitability of a purchaser should systematically be regarded as equivalent to the ‘fix-it-first’ solution and as generally acceptable.
570    In particular, such equivalence cannot be recognised where the divestment business is structurally inadequate for the purpose of addressing the anticompetitive effects of the concentration transaction, in the sense that its viability does not depend on specific assets which could be transferred to it by the purchasers which, in accordance with the standard requirements set out in paragraph 48 of the Remedies Notice, would be independent of the parties to that transaction. As the Commission correctly states in recitals 857, 858 and 860 of the contested decision, the ‘up-front buyer’ solution is intended above all to put pressure on the transferee in order for it to accelerate the divestiture, in situations where the feasibility of the divestiture or the viability of the divestment business depends on external constraints, which must be removed quickly, such as obtaining authorisation from the authorities or access to certain assets held by the potential purchasers of that business.
571    In the present case, the Commission had clearly stated, referring, in recital 861 of the contested decision, to recitals 803 to 844 of that decision, the reasons why it considered that the divestment business was structurally inadequate for the purpose of addressing the anticompetitive effects of the concentration at issue, since Aurubis’ 50% stake in Schwermetall was not included in the divestment business.
572    As is apparent from paragraph 550 above, the applicant has not succeeded in calling into question, in the context of the present action, the Commission’s assessment that Aurubis’ 50% stake in Schwermetall, which was not included within the scope of the divestment business, constituted an essential and crucial element for the viability and competitiveness of the Stolberg plant and an important element for the viability and competitiveness of the Zutphen plant, which fell within that scope, in the absence of which it did not have sufficient certainty that a potential purchaser of that business would be able to compete effectively with the applicant and have the incentive to do so, following the concentration at issue, in so far as it would probably have been led to maintain the commercial relationships established with Schwermetall, including after the expiry of the transitional services and supply agreement.
573    In those circumstances, the Commission was also right to conclude that the method followed in the third proposed commitments was not equivalent to the ‘fix-it-first’ method and that it did not therefore have to take into account the resources of the potential purchasers, including those of the declared potential purchasers.
574    For those reasons, the present complaint must be rejected as unfounded.
575    The main reasoning set out by the Commission in the contested decision is thus confirmed.
576    According to settled case-law, complaints directed against a ground included in a decision of the Court purely for the sake of completeness cannot provide any basis for annulment of that decision and are therefore ineffective (see order of 9 March 2007, Schneider Electric v Commission, C‑188/06 P, not published, EU:C:2007:158, paragraph 64 and the case-law cited).
577    The second and third complaints are directed against the alternative reasoning put forward by the Commission, in recitals 866 to 920 of the contested decision, in which it took into account the resources of the declared potential purchasers in the context of the competitive analysis of the third proposed commitments and the responses of market participants to the questionnaire on the third proposed commitments, which related, in essence, to those same resources.
578    In so far as the main reasoning adopted by the Commission in the contested decision was upheld (paragraph 575 above), those complaints may be regarded as directed against grounds included in the contested decision purely for the sake of completeness and, as such, rejected as ineffective.
579    Therefore, the second limb of the third part of the ninth plea in law must be rejected in its entirety.
4.      The fourth part of the ninth plea in law
580    By the fourth part of the ninth plea, the applicant criticises the Commission for having incorrectly concluded, in Section 7.3.3.3 and, accordingly, in recitals 921 to 930 of the contested decision, that the second and third proposed commitments did not address the vertical anticompetitive effects attributable to the concentration at issue, referred to in Section 6.9 of the contested decision, which were linked to the sole, and no longer joint, control that the applicant would exercise over Schwermetall, following the concentration at issue.
581    The Commission disputes the applicant’s arguments and contends that the fourth part of the ninth plea should be rejected as unfounded.
582    In recital 922 of the contested decision, the Commission noted that the transitional services and supply agreement did not include sales of pre-rolled strip from Schwermetall to other competitors of the parties to the concentration at issue on the relevant market, such as Diehl, Kemper and Messingwerk Plettenberg. Following that concentration, the applicant would have the capacity to increase the price of the pre-rolled strip supplied to them by Schwermetall and the incentive to do so, thereby raising their production costs and hindering their expansion on the relevant market. In addition, the applicant would have access, via Schwermetall, to commercially sensitive information concerning those competitors.
583    In recitals 924 to 929 of the contested decision, the Commission responded to the applicant’s objections, referred to in recital 923 of that decision, according to which the anticompetitive effects of the concentration at issue would be corrected by the fact that, in so far as the Stolberg and Zutphen plants would obtain supplies from other integrated competitors, Schwermetall would have available production capacity, which would give it the incentive to sell more pre-rolled strip on the merchant market.
584    In that regard, the Commission stated, first, that, given the dependence of the Stolberg and Zutphen plants on Schwermetall, as it had pointed out in recital 822 of the contested decision, it was highly likely that the transitional services and supply agreement would be performed in full for five years. Consequently, Schwermetall would not have available production capacities and the vertical anticompetitive effects identified would not be resolved, contrary to the objective recalled in recital 25 of Regulation No 139/2004 and in paragraph 14 of the Remedies Notice.
585    Second, the Commission observed that, after the expiry of the transitional services and supply agreement, it was likely that, as it had observed in recitals 868 to 920 of the contested decision with regard to the declared potential purchasers, the commercial relationships established between the Stolberg and Zutphen plants and Schwermetall would be, albeit partially, maintained.
586    Third, the Commission stated that the applicant’s claim that, if Schwermetall had ceased to supply the Stolberg and Zutphen plants with pre-rolled strip, it would have sold that pre-rolled strip on the merchant market was neither substantiated nor proven. In point 70(h) of the Form RM relating to the third proposed commitments, the applicant suggested rather that it would use its available production capacities to develop its business on the relevant market, by substituting supplies from Schwermetall for those from its plant in Vöhringen (Germany) and by exploiting all possibilities of achieving economies of scale.
587    Fourth, the Commission observed that, even assuming that Schwermetall supplied pre-rolled strip, at affordable prices, to the applicant’s competitors on the relevant market, the applicant would still have access to commercially sensitive information on those competitors, with the result that one of the vertical anticompetitive effects attributable to the concentration at issue would not be removed.
588    Fifth, the Commission referred to the generally negative responses of market participants concerning the vertical anticompetitive effects attributable to the concentration at issue and, in particular, to the responses of some of them to questions 1.1, 2.1, 3.2, 20.1 and 21.1 of the questionnaire on the third proposed commitments, from which it was apparent that they expected that, following the concentration at issue, the applicant would use the sole control which it would have over Schwermetall to raise the production costs of those of its competitors on the relevant market which depended on Schwermetall for their supplies of pre-rolled strip and to make use, for its own benefit, of the access it would have to commercially sensitive information concerning those competitors.
589    On the one hand, the applicant disputes the assessments made by the Commission in recitals 921 to 930 of the contested decision, maintaining that the Commission should have accepted the first proposed commitments, in the decision to initiate in-depth investigation proceedings, and that, therefore, it should not have had to set out the second and third proposed commitments, in order to attempt to obtain an authorisation decision. The applicant considers that it is justified in requesting the Court, in the context of the action brought against the contested decision, to review the erroneous reasoning contained in the decision to initiate in-depth investigation proceedings, in so far as it was a measure which it could not challenge independently. As to the substance, it submits that, although the first proposed commitments addressed all the serious concerns regarding the anticompetitive, horizontal and vertical effects attributable to the concentration at issue that the Commission had identified, the Commission rejected them on the ground, set out in paragraph 182 of the decision to initiate in-depth investigation proceedings, that the commitments specifically intended to address the vertical anticompetitive effects of that concentration were behavioural rather than structural. According to the applicant, that ground was incorrect, since the Commission and other competition authorities had already found that behavioural commitments could address the risk of an input foreclosure strategy by the parties to a concentration transaction.
590    The Commission considers, in essence, that, in order to be able to challenge the rejection of the first proposed commitments in the decision to initiate in-depth investigation proceedings in the present action, the applicant should have maintained those commitments in the administrative proceedings before it and not proposed new ones.
591    In so far as the applicant considers that it is justified in challenging assessments made in the decision to initiate in-depth investigation proceedings in the present action, directed against the contested decision, it must be recalled that a decision to initiate in-depth investigation proceedings, adopted on the basis of Article 6(1)(c) of Regulation No 139/2004, is a preparatory measure the illegality of which may be relied on in support of an action brought against the final decision (order of 27 November 2017, HeidelbergCement v Commission, T‑902/16, not published, EU:T:2017:846, paragraph 25).
592    Thus, if the parties to a concentration transaction consider that the Commission unlawfully disregarded, in a decision to initiate in-depth investigation proceedings, the commitments which they had proposed in order to attempt to remove the serious concerns expressed by the Commission as to the anticompetitive effects of that concentration transaction, they may rely on them in support of the action brought against the final decision, even if, during the in-depth investigation proceedings, they proposed new commitments, so that the concentration transaction might be authorised by the Commission in its final decision and in order to avoid the need to bring an action.
593    It follows that, even though the applicant chose to submit to the Commission the second and third proposed commitments, in the course of the in-depth investigation proceedings, it nonetheless remains entitled to challenge, in the present action, the merits of the grounds for rejecting the first proposed commitments, which are set out in the decision to initiate in-depth investigation proceedings.
594    In that regard, it is apparent from paragraphs 181 to 183 of the decision to initiate in-depth investigation proceedings that the Commission considered, first, that the first proposed commitments were not sufficient to remove its concerns regarding the horizontal anticompetitive effects attributable to the concentration at issue, since the divestiture of ARP’s Zutphen and Pori plants would not solve the problem of overlap between the activities of the parties to that concentration in the ‘high-end’ segment of the relevant market. Next, it considered that the commitments which were specifically intended to address its concerns regarding the vertical anticompetitive effects of that concentration, linked to the supply of pre-rolled strip by Schwermetall to competitors of the applicant on the relevant market, in particular in the ‘high-end’ segment of that market, would not have been sufficient to remove them, since they were temporary behavioural commitments, relating only to Schwermetall’s existing customer base, which would not have provided a long-term and structural response.
595    Thus, in the decision to initiate in-depth investigation proceedings, the rejection of the first proposed commitments was not based solely on the finding that they would not have resolved the Commission’s serious concerns regarding the vertical anticompetitive effects of the concentration at issue and, as regards those effects, concerning the fact that the proposed commitments were behavioural in nature. That rejection was also based on the fact that those commitments were not sufficient to remove the Commission’s concerns regarding the horizontal anticompetitive effects attributable to that concentration and, as regards the vertical anticompetitive effects of that concentration, concerning the fact that they were also temporary commitments which concerned only Schwermetall’s existing customer base.
596    The applicant has therefore failed to establish that the Commission’s rejection of the first commitments was based exclusively on their behavioural nature.
597    Therefore, its argument relating to the allegedly unjustified rejection of the first proposed commitments must be rejected as unfounded.
598    On the other hand, the applicant submits that the second and third proposed commitments addressed all the anticompetitive, horizontal and vertical effects referred to by the Commission, since Schwermetall’s supply of pre-rolled strip to the divestment business could be replaced, at least in part, by an in-house supply by the declared potential purchasers, which would give Schwermetall the incentive to increase its sales of pre-rolled strip on the merchant market.
599    The Commission maintains that the responses of the market participants to the questionnaire on the third proposed commitments did not confirm that the declared potential purchasers would be suitable to take over the divestment business. In that regard, it referred to its arguments in response to the tenth plea of the present action. The Commission submits that it was for the applicant to establish that the third proposed commitments entirely resolved the anticompetitive effects attributable to the concentration at issue that it had noted and, in the light of the responses to the market investigation during the in-depth investigation proceedings, to restructure those commitments in order to address those effects.
600    It follows from the examination of the first complaint of the second limb of the third part of the ninth plea that the Commission was not required, in the present case, to consider the resources of potential purchasers, including those of the declared potential purchasers (see paragraph 573 above).
601    In addition, as the Commission noted in recitals 822 and 868 to 920 of the contested decision and as has already been set out in paragraphs 584 and 585 above, it was likely that the declared potential purchasers would pursue the commercial relationships established between the Stolberg and Zutphen plants, on the one hand, and Schwermetall, on the other hand, throughout the period of performance of the transitional services and supply agreement and indeed beyond that.
602    Lastly, as the Commission found in recital 927 of the contested decision, and as has already been set out in paragraph 586 above, there was no assurance that any production capacities made available at Schwermetall would be used to supply pre-rolled strip on the merchant market.
603    In any event, as the Commission correctly observed in recital 928 of the contested decision and as has already been stated in paragraph 587 above, the possibility for the applicant’s competitors on the relevant market to source pre-rolled strip from Schwermetall at affordable prices would not affect the applicant’s access to commercially sensitive information concerning those competitors, with the result that one of the vertical anticompetitive effects attributable to the concentration at issue, identified by the Commission, remained unaddressed.
604    Thus, the applicant has not established that the second and third proposed commitments would fully address the vertical anticompetitive effects of the concentration at issue identified by the Commission.
605    In the light of all the foregoing considerations, the fourth part of the ninth plea must be rejected, with the result that that plea in law must be rejected in its entirety.
C.      The tenth plea in law, alleging manifest errors in the assessment of the responses to the market test questionnaire on the third proposed commitments
606    By the tenth plea in law, the applicant alleges manifest errors vitiating the Commission’s assessment, in Section 7.3.2 and, accordingly, in recitals 768 to 800 of the contested decision, of the responses to the market test questionnaire on the third proposed commitments.
607    The tenth plea is divided into two parts.
1.      The first part of the tenth plea in law
608    By the first part of the tenth plea, the applicant submits that the responses of market participants, competitors and industrial customers to the market test questionnaire on the third proposed commitments undermine the Commission’s assessments, in the contested decision, according to which, first, the third proposed commitments were insufficient to remedy the anticompetitive effects attributable to the concentration at issue, second, the divestment business would not be viable, third, the declared potential purchasers would not be suitable and, fourth, after that concentration, the applicant could hinder expansion on the relevant market, in particular on the alleged segment for ‘high-end’ rolled products, of those of its non-integrated competitors that sourced pre-rolled strip from Schwermetall, by raising their production costs, and it would also have access to commercially sensitive information (volumes ordered, prices charged, etc.) concerning those competitors.
609    The Commission disputes the applicant’s arguments and contends that the first part of the tenth plea should be rejected as unfounded.
610    In the first part of the tenth plea, the applicant complains, first, that the Commission, in the context of the analysis of the third proposed commitments, undervalued the responses of market participants which were positive and overvalued those, of a few isolated industrial customers, which were negative. The applicant maintains that when the Commission exercised its discretion, it was not entitled, generally and without reasonable justification, to attribute more weight to certain types of evidence, such as the responses of industrial customers, rather than to others, such as the responses of competitors, as it did at recitals 773 and 793 to the contested decision. That led it to undervalue the statements of the participants in the relevant market, which, because they intervened directly on that market, were in the best position to assess the effectiveness of the proposed commitments, and to overvalue those of other participants which, as the content of their responses showed, did not have such precise knowledge of that market because they operated on markets downstream of the relevant market. Moreover, the Commission itself gave very significant weight to the statements of those of the applicant’s competitors that were also customers of Schwermetall, when assessing the vertical anticompetitive effects attributable to the concentration at issue.
611    As a preliminary point, it should be noted that, as is apparent from recitals 801 to 930 of the contested decision, in the context of the assessment of the third proposed commitments, the Commission weighed the various items of evidence or indicia that it had gathered during the administrative proceedings, by assessing the relative reliability of each of them, in particular that of the responses of the various market participants, competitors and industrial customers to the market test questionnaire on the third proposed commitments. Irrespective of whether the conclusions drawn from it are well founded, the method of weighing up the various items of evidence or indicia according to its degree of reliability, applied by the Commission in the contested decision, corresponds to that required by the case-law and must therefore be upheld.
612    In addition, the Commission did not merely examine separately the responses of market participants to the market test on the third proposed commitments, but weighed them against all the assessments it had drawn from all the evidence and indicia that it had gathered during the administrative proceedings. In that regard, it should be noted that, while the opinions of market participants may constitute an important source of information on the foreseeable impact of a concentration on the market, they cannot bind the Commission when it makes its own assessment of that impact (see, to that effect, judgment of 25 March 1999, Gencor v Commission,
T‑102/96, EU:T:1999:65, paragraph 291).
613    In that context, and as is apparent in particular from recitals 795, 796, 812, 813, 827, 829, 830 and 841 and footnote 634 to the contested decision, it must be held that the Commission did not disregard the statements of competitors.
614    On the other hand, it is apparent from recitals 773 and 775 of the contested decision that the Commission attributed to the statements of competitors, in particular those that had expressed an interest in taking over all or part of the divestment business, less weight than to those of the industrial customers.
615    The Commission correctly stated, in recital 793 of the contested decision, that, in the context of the assessment of the market test responses, it cannot assess each response in isolation but must give it the appropriate weight taking into account the extent to which it is more or less credible. Moreover, it must be observed that the applicant’s line of argument is based, in the present case, on that same logic when it maintains that the Commission should have given greater weight to the statements of competitors than to those of the industrial customers, on the ground that competitors were more credible than the industrial customers, since they had more detailed knowledge than the latter about the relevant market.
616    The Commission also correctly applied in the present case, as it stated in recital 793 of the contested decision, the method which it had already explained in recital 577 of that decision, which consisted of taking into account the incentives that might have influenced the responses of market participants, in order to balance the relative weight of one by comparison with the other. The fact that, following such an analysis, the Commission gives more weight to the statements of certain market participants than to others does not mean that it failed to take account of the latter statements (see, to that effect, judgment of 25 March 1999, Gencor v Commission,
T‑102/96, EU:T:1999:65, paragraph 290).
617    The Commission also correctly found, in recital 577 of the contested decision, that, on an oligopolistic market, such as the ‘high-end’ segment of the relevant market, more weight had to be given to the statements made by industrial customers, who would directly suffer the anticompetitive effects attributable to the concentration at issue, in particular price increases for rolled products orchestrated by the applicant, than to the statements of competitors, which could benefit from them if demand was diverted to them. Furthermore, as the Commission correctly stated in recital 794 of the contested decision, with reference to paragraph 24 of the Guidelines on the assessment of horizontal mergers, in an oligopolistic market, competitors have the incentive to follow, rather than counteract, price increases decided upon by one of them.
618    As the Commission submits, that analysis is consistent with the findings set out at page 43 of the document entitled ‘ICN Investigative Techniques Handbook for Merger Review’ drawn up in 2005 by the International Competition Network (ICN), according to which ‘an acquired firm’s customers usually have the most to lose from an anticompetitive merger because they may lose their preferred supplier and may lose their preferred product after the merger’ and ‘frequently, they are able to provide important testimony about how they benefited by playing the acquiring and acquired firms off against one another and whether they expect to be harmed by the loss of rivalry between two important suppliers’. By contrast, ‘competitors’ incentives generally are to favour an anticompetitive merger and oppose a pro-competitive merger’.
619    Moreover, those competitors that had declared themselves interested in the acquisition of all or part of the divestment business had a direct interest in the concentration at issue, as amended by the third proposed commitments including the divestiture of that entity, being authorised.
620    Contrary to what the applicant maintains and as the Commission correctly notes, industrial customers are, like the competitors, directly active on the relevant market as purchasers. Moreover, in the ‘high-end’ segment of that market, particularly affected by the concentration at issue, they are perfectly aware of the rolled products in question, since, as the applicant itself has pointed out, they subject those products to stringent tests and checks, for the purposes of qualification, and participate in research and development relating to those products (see paragraph 194 above).
621    The applicant maintains that the lack of sufficient knowledge of the relevant market on the part of industrial customers is evidenced by the fact that they were often unable to answer the questions put to them, such as those relating to the pre-rolled strip production capacity of the divested business’s potential purchasers – 95% of industrial customers replied with the words ‘I do not know’ to question 30 of the market test questionnaire on the third proposed commitments – or answered it on the basis of their own interests.
622    In that regard, it should be noted that, for 28 of the 39 questions in the market test questionnaire on the third proposed commitments, certain market participants, both competitors and industrial customers, replied indecisively with the words ‘I do not know’. Although, for 17 of those 28 questions, the percentage of indecisive responses was higher among the industrial customers than among the competitors, the opposite was true for the other 11 questions and, in some cases, the percentage of indecisive replies within the two groups was very close. As regards question 30 of the market test questionnaire on the third proposed commitments, a smaller but nevertheless significant (50%) percentage of competitors also replied indecisively. The mere fact that a proportion, indeed a very significant proportion, of industrial customers thus neglected certain questions does not have a bearing on the reliability of the responses given by any party that answered them more precisely, particularly since the industrial customers were more numerous and diverse than the competitors.
623    In any event, and contrary to what is suggested by the applicant, the responses of the competitors cited by the Commission in recitals 777, 780, 782 and 784 of the contested decision were shared and a non-negligible proportion of them, corresponding to non-integrated competitors, with the exception of Kemper, whose response was not usable, expressed the view that the third proposed commitments were structurally inadequate for the purpose of eliminating the anticompetitive effects, both horizontal and vertical, attributable to the concentration at issue.
624    In that context, and in the context of weighing up the various items of evidence or indicia in question, the Commission was justified, without neglecting them, in attaching less weight to the statements of competitors, in particular those that had expressed an interest in taking over all or part of the divestment business (Sofia Med, GBC and KME/MKM) than to other evidence, such as statements by industrial customers.
625    Second, the applicant submits that, in any event, the responses of the industrial customers to the market test questionnaire on the third proposed commitments were also positive or neutral.
626    As the Commission correctly submits, it is incorrect to claim, as the applicant does, that the industrial customers responded positively to the market test questionnaire on the third proposed commitments, while, as is apparent from the responses cited in recitals 776, 778, 779, 781 and 783 of the contested decision, a large, or even very large, majority of them had explained that the third proposed commitments were unlikely to resolve the potential competition concerns identified by the Commission and had expressed doubts as to the viability and competitiveness of the divestment business and the suitability of the declared potential purchasers.
627    For all the foregoing reasons, the first part of the tenth plea in law must be rejected as unfounded.
2.      The second part of the tenth plea in law
628    By the second part of the tenth plea, the applicant complains, in essence, that the Commission infringed the principles of impartiality and good administration by sending market participants a market test questionnaire on the third proposed commitments containing unclear, misleading or irrelevant questions so that it could not gather reliable and relevant information. Furthermore, the Commission overvalued the responses of the industrial customers, even though they were poorly informed, in particular single customer feedback.
629    The Commission disputes the applicant’s arguments and contends that the second part of the tenth plea should be rejected as unfounded.
630    As a preliminary point, it should be recalled that the right to good administration implies, inter alia, under Article 41(1) of the Charter of Fundamental Rights, the right of every person to have his or her affairs handled impartially by the institutions, bodies, offices and agencies of the European Union (see paragraph 501 above) (see, to that effect, judgments of 20 March 2002, ABB Asea Brown Boveri v Commission, T‑31/99, EU:T:2002:77, paragraph 99 and the case-law cited, and of 13 July 2011, Polimeri Europa v Commission, T‑59/07, EU:T:2011:361, paragraph 59 and the case-law cited).
631    The requirement of impartiality encompasses, on the one hand, subjective impartiality, in so far as no officer of the institution concerned who is responsible for the matter may show bias or personal prejudice, and, on the other hand, objective impartiality, in so far as there must be sufficient guarantees to exclude any doubt as to bias on the part of the institution concerned (see judgment of 11 July 2013, Ziegler v Commission, C‑439/11 P, EU:C:2013:513, paragraph 155 and the case-law cited).
632    It should be noted that the need for speed that characterises the general scheme of Regulation No 139/2004 requires the Commission to comply with strict time limits for the adoption of the final decision (see paragraph 504 above).
633    However, a breach of the principle of good administration may only lead to the annulment of the contested decision if it is established that the content of that decision would have differed if that irregularity had not occurred (see judgment of 13 July 2011, Polimeri Europa v Commission, T‑59/07, EU:T:2011:361, paragraph 59 and the case-law cited). According to the case-law, it is thus for the applicant to produce at least some indicia to support such a conclusion (judgment of 15 March 2006, BASF v Commission, T‑15/02, EU:T:2006:74, paragraph 606).
634    In the present case, the market test on the third proposed commitments contributed to the implementation, by the Commission, of its obligation to conduct an impartial examination, in accordance with the principle of good administration, within the constrained time frame of the merger control procedure. The questionnaire attests to the Commission’s intention to consult market participants on all key issues of its analysis of the third proposed commitments.
635    First, the applicant submits that the Commission’s bias in drawing up the market test questionnaire on the third proposed commitments is demonstrated by the fact that it did not provide for the possibility for industrial customers to answer certain questions using the words ‘I do not know’, which led some of them to give negative responses, even though, as their comments show, they were not in a position to answer those questions.
636    In that regard, it should be noted that, even though it is true that questions 7, 8, 12, 14 to 16, 18, 23, 31, 34 and 38 of the market test questionnaire on the third proposed commitments did not provide for the response corresponding to the words ‘I do not know’, industrial customers were not required to answer them, if they did not consider themselves in a position to do so. Moreover, for the questions at issue, the response rate varied between 75 and 95%, indicating that those customers did not always answer all the questions asked, and did so in variable proportions depending on the question. The applicant is therefore not justified in maintaining that, generally speaking, the industrial customers were required to answer questions when they were unable to do so.
637    The present line of argument must therefore be rejected as unfounded.
638    Second, the applicant submits that the Commission’s bias in drawing up the market test questionnaire for the third proposed commitments is demonstrated by the fact that certain questions had been formulated in a very technical, complex or biased manner and required knowledge which market participants did not have, which led to boilerplate, incorrect or inaccurate responses. It refers to the boilerplate responses of the industrial customers to question 3.2 of the questionnaire. It also refers to the questions raised in the part of the questionnaire concerning the profile of a suitable purchaser for the divestment business and, in particular, to question 14 of the questionnaire, which asked whether that purchaser should have sufficient pre-rolled strip production capacity to maintain and develop the divestment business in a viable and competitive manner. The wording of that question was imprecise, since it did not indicate whether the production capacity in question should be exclusively internal or could also be external, and biased, because it necessarily led to a positive response.
639    In that regard, it should be borne in mind that, like the forms of order sought and the pleas in law, the complaints relied on in support of an action must be formulated in a sufficiently precise manner to enable the other party to the action to understand them and respond thereto and the Court to carry out its review. It is not for the Court, or indeed for the other party to the action, to seek from the file any evidence which might support a complaint formulated in general terms (see, to that effect, judgment of 7 May 2009, NVV and Others v Commission, T‑151/05, EU:T:2009:144, paragraph 61). It follows that the wording of the present complaint does not oblige the Court to review all the questions in the market test questionnaire on the third proposed commitments in order to ascertain, taking account of the responses given by the industrial customers, whether those questions were formulated in a manner that was too technical, complex or biased.
640    Even supposing that complaint could be regarded as referring in a sufficiently precise manner to questions 12 to 31 under heading C. ‘Divestiture [of the divestment business] to a suitable purchaser’, in the market test questionnaire on the third proposed commitments, it must be held that it is not apparent from a straightforward reading of those questions that they were formulated in a manner that was too technical, complex or biased. The fact that, as is apparent from certain explanatory comments accompanying the responses to those questions, market participants sometimes considered that they did not have all the knowledge necessary to be able to respond meaningfully resulted rather from the fact that those participants did not always have sufficient knowledge of the whole of the relevant market, which was a highly diversified and segmented market, or of certain other operators which, like GBC, were not sufficiently active on that market. That was also a result of the complex, prospective nature of the analyses requested of them. However, as the Commission correctly observes, the mere fact that it is not easy to answer certain questions is not sufficient to show that those questions are, in themselves, inappropriate.
641    In addition, as was already noted in paragraph 612 above, the Commission did not merely, in the present case, separately examine the responses of market participants to the market test on the third proposed commitments, but weighed them against all the other, prospective analyses it had drawn from all the evidence and indicia that it had gathered during the administrative proceedings.
642    With regard to question 3.2 of the questionnaire, which was supplementary to question 3, the Commission invited market participants, in particular the industrial customers, which considered that the divestment business was not adequately composed to eliminate the risk that the applicant would gain, following the concentration at issue, commercially sensitive information concerning those of its competitors on the relevant market which sourced pre-rolled strip from Schwermetall, to explain the structural measures which, in their view, could make it possible to eliminate such a risk.
643    The industrial customers which answered that question referred, inter alia, to measures ensuring Schwermetall’s functional independence or ensuring the confidentiality of the information held by Schwermetall as well as the divestiture of Aurubis’ 50% stake in Schwermetall. Those responses thus identified measures which seemed logical for the purpose of addressing the types of problems identified by the Commission. The applicant cannot claim to call into question the credibility of those responses by merely describing them as ‘biased’, without putting forward any argument to show that the measures proposed in those responses were inappropriate in the present case.
644    Accordingly, the present line of argument must be rejected as unfounded.
645    Third, the applicant submits that the Commission’s bias in drawing up the market test questionnaire on the third proposed commitments is demonstrated by the fact that the questions asked are too technical, which led to over 40% of industrial customers answering using the words ‘I do not know’ in reply to questions 3, 5, 6, 9 to 11, 17, 19, 21, 22, 24 to 27, 29, 30, 32, 33, 35 to 37 and 39. In reply to question 30, 95% of those customers gave that response.
646    As has already been stated in paragraph 640 above, the indecisive responses of the industrial customers to the questions asked were rather the result of the fact that they did not always have sufficient knowledge of the relevant market as a whole or of certain economic operators on that market as well as the complex, prospective, nature of the analyses requested of them.
647    In any event, the mere fact that a proportion, indeed a very significant proportion of industrial customers thus passed over certain questions does not have a bearing on the credibility of the responses given by any party that answered them, particularly since the industrial customers were more numerous and diverse than the competitors.
648    Moreover, the applicant was not perturbed by the fact that an equally great, and sometimes even greater, proportion of competitors answered numerous questions indecisively, but, on the contrary, recommended relying on those responses, on the ground that they were more credible (see paragraph 610 above).
649    The present complaint must therefore also be rejected.
650    Fourth, the applicant submits that, without the expedient of citing only the negative responses of the market participants to the market test on the third proposed commitments, in order to justify the rejection of those commitments, the Commission would have had to conclude that they were appropriate, in the light of the objective results of that market test, and should not have prohibited the concentration at issue.
651    In that regard, it is sufficient to note that, as is apparent from the foregoing assessments, the conclusion reached by the Commission in Section 7.3.3 of the contested decision is based on an adequate balancing of the various items of evidence or indicia which it had gathered during the administrative proceedings, taking into account the relative credibility of each of them (see paragraphs 611 and 612 above). In that context, it is apparent from the foregoing analyses that the Commission did not overlook the positive responses of market participants to the market test on the third proposed commitments, but weighed them against the other items of evidence or indicia at its disposal, in accordance with their relative credibility.
652    The present complaint is therefore unfounded.
653    For all the foregoing reasons, the second part of the tenth plea in law must be rejected as unfounded. This tenth plea in law must therefore be rejected in its entirety.
D.      The eleventh plea in law, alleging infringement, in the administrative proceedings, of essential procedural requirements and of the principle of good administration
654    By the eleventh plea in law, the applicant complains that, in the administrative proceedings leading to the adoption of the contested decision, the Commission infringed essential procedural requirements and the principle of good administration.
655    The eleventh plea is divided into two parts.
1.      The first part of the eleventh plea in law
656    By the first part of the eleventh plea, the applicant complains that the Commission was late in consulting the market participants on the third proposed commitments and did not even consult them on the first and second proposed commitments, which did not have the same scope. It is apparent from recital 17 of Regulation No 802/2004 that all commitments offered should be subject to market testing and from recital 35 of Regulation No 139/2004 that that market testing should be carried out within a sufficient period of time to enable the notifying parties to adjust or improve their commitments.
657    As regards the first proposed commitments, the applicant submits that the Commission did not explain in the contested decision why it did not consult the market participants. In the decision to initiate in-depth investigation proceedings, the applicant maintains that the Commission wrongly claimed, first, that those commitments did not sufficiently address the competition concerns identified in the alleged segment for ‘high-end’ rolled products and, second, that behavioural commitments were not acceptable in order to address a problem of input access foreclosure. Schwermetall’s customers could never have given their views on the long-term supply contract and the divestiture of the ARP plant at Pori, which was not supplied by Schwermetall with pre-rolled strip, included in the first proposed commitments, while the Commission’s concerns were essentially based on negative comments from those customers.
658    As regards the second proposed commitments, the applicant complains that the Commission did not give a valid reason, in recital 50 et seq. of the contested decision, for not consulting the market participants. A preliminary analysis of those commitments was carried out by the Commission in the statement of objections. It was artificial to claim that the market participants could not be consulted on commitments which had been submitted before the adoption of the statement of objections, when the second commitments had been proposed on 17 October 2018, that is to say just before the statement of objections was adopted, on 24 October 2018, and therefore at a time when the Commission had completed its analysis.
659    The market participants were consulted at a very late stage of the administrative proceedings, after the extension of the deadline for formally submitting commitments, preventing the applicant from improving or adapting the third proposed commitments in the light of the results of the market test. Furthermore, in rejecting those commitments, the Commission focused on isolated negative responses of certain market participants.
660    The Commission disputes the applicant’s arguments and contends that the first part of the eleventh plea should be rejected as unfounded.
661    The first part of the eleventh plea is based, essentially, on three separate complaints, corresponding to the proposed commitments. First, as regards the first and second proposed commitments, the applicant criticises the Commission, in the context of its first principal complaint, for infringing its obligations by not consulting the market participants regarding those commitments and, in the context of a second complaint, put forward in the alternative, for having infringed those same obligations by failing to give reasons or valid reasons for that lack of market testing. Second, as regards the third proposed commitments, the applicant complains that the Commission, in the context of a third complaint, infringed its obligations by consulting market participants on those commitments too late.
(a)    The first complaint, put forward as the principal argument, and the second complaint, put forward in the alternative
662    In the first and second complaints, the applicant relies on the principle of good administration and recital 17 of Regulation No 802/2004 in support of its argument that the Commission was required to consult market participants on all the proposed commitments.
663    In that regard, it must be noted that, in accordance with the case-law, the principle of good administration does not, in itself, confer rights upon individuals, except where it constitutes the expression of specific rights such as the right to have affairs handled impartially, fairly and within a reasonable time, the right to be heard, the right to have access to files, or the obligation to give reasons for decisions, for the purposes of Article 41 of the Charter of Rights (judgment of 4 October 2006, Tillack v Commission, T‑193/04, EU:T:2006:292, paragraph 127, and order of 20 December 2019, Dragomir v Commission, T‑297/19, not published, EU:T:2019:902, paragraph 47). Thus, the principle of good administration did not, in itself, confer any right on the applicant which required the Commission to consult market participants on all the commitments which it had proposed, in particular on the first and second proposed commitments.
664    In so far as the applicant argues that such an obligation derives from an application of the principle of good administration, in conjunction with an obligation reflected in recital 17 of Regulation No 802/2004, it must be pointed out that, although, in accordance with the case-law, a recital may cast light on the interpretation to be given to a legal rule or concept provided for in the act in which it is contained, it does not, in itself, constitute a legal rule and therefore has no legal value of its own (see, to that effect, judgment of 4 March 2020, Marine Harvest v Commission, C‑10/18 P, EU:C:2020:149, paragraphs 43 to 44 and the case-law cited).
665    Thus, it cannot be inferred from recital 17 of Regulation No 802/2004 that the Commission is under an obligation to consult market participants on all proposed commitments, in accordance with Article 6(2) and Article 8(2) of Regulation No 139/2004.
666    Moreover, the applicant has not relied on any other provision, principle or case-law from which the Commission’s obligation to consult market participants on all proposed commitments, or the corresponding obligation to explain the reasons which led it, in the present case, to derogate from such an obligation in the case of the first and second proposed commitments, could arise.
667    Even if the applicant intended to refer to paragraphs 80, 81 and 92 of the Remedies Notice, as the Commission assumed in its defence, it must be pointed out that, while, formally, those paragraphs had a binding legal effect on the Commission (see, to that effect, judgment of 3 April 2003, BaByliss v Commission, T‑114/02, EU:T:2003:100, paragraph 143), they did not, however, oblige it, in practical terms, to consult the market participants on the first and second proposed commitments.
668    It is apparent from paragraphs 80, 81 and 92 of the Remedies Notice, read together, that the Commission is not required to consult market participants on commitments which have been formally proposed before the statement of objections, where it considers, as in the present case, that those commitments are not sufficient to remove all its serious concerns as to the compatibility of the concentration in question with the internal market and the EEA Agreement.
669    In the present case, the Commission clearly stated, in the decision to initiate in-depth investigation proceedings, concerning the first proposed commitments, and in the statement of objections, concerning the second proposed commitments, the reasons why it considered that those commitments were not sufficient to remove all the serious concerns it had as to the compatibility of the concentration at issue with the internal market and the EEA Agreement.
670    In paragraphs 181 to 183 of the decision to initiate in-depth investigation proceedings, the Commission stated that the first proposed commitments did not address all the serious concerns it had as to the compatibility of the concentration at issue with the internal market and the EEA Agreement, since, first, the commitments of a structural nature intended to address the horizontal anticompetitive effects of that concentration did not cover the full overlap between the activities of the parties to that concentration on the relevant market, in particular in the sub-segments for rolled products made of HPAs
intended for the connectivity sector, which belonged, essentially, to the ‘high-end’ segment of the relevant market in which the parties to the concentration at issue were in strong competition. Second, the commitments designed to address the vertical anticompetitive effects of that concentration did not offer a long-term structural solution, since they were behavioural commitments, which were temporary and related only to Schwermetall’s existing customers, which, after that concentration, would have to continue to compete with the applicant on the relevant market, while remaining dependent on its subsidiary, Schwermetall, for supplies of pre-rolled strip, an essential input for the manufacture of its rolled products.
671    In paragraphs 500 to 511 of the statement of objections, as summarised in recital 51 of the contested decision, the Commission observed that the second proposed commitments also did not remove all the serious concerns it had as to the compatibility of the concentration at issue with the internal market and the EEA Agreement, since, first, those commitments were not comprehensive and effective in all respects, as provided for in paragraph 9 of the Remedies Notice. Admittedly, the structural commitments, consisting of the sale of ARP plants active in the segment for ‘high-end’ rolled products, eliminated the bulk of the overlap between the activities of the parties to the concentration at issue on the relevant market, in particular in that segment. However, they did not guarantee that the plants to be divested would, following that concentration, exercise a competitive constraint equivalent to the one that ARP exercised over the applicant before the concentration, since the competitiveness and long-term viability of those plants depended heavily on the advantages derived from their vertically integrated operation and their geographical proximity to Schwermetall. The transitional services and supply agreement provided only a temporary solution, which would not resolve the identified competition concerns in the long term and independently of the resources of a potential future purchaser, in accordance with paragraph 30 of the Remedies Notice. Second, the second proposed commitments would not resolve all the anticompetitive effects of the concentration at issue. The transfer from joint to sole control over Schwermetall on the part of the applicant would enable it, after that concentration, to raise the production costs of those of its competitors on the relevant market which sourced pre-rolled strip from Schwermetall. The transitional services and supply agreement did not provide a solution to that problem, since it would benefit only the potential future purchaser of the plants to be divested and not those of the other competitors on the relevant market which were dependent on Schwermetall’s supplies. In addition, following the concentration at issue, the applicant would be entitled to access commercially sensitive information concerning those competitors.
672    Furthermore, in so far as, in the context of the present complaint, the applicant claims that the statement of reasons for the rejection of the first proposed commitments, adopted in the decision to initiate in-depth investigation proceedings, was erroneous, it raises a substantive complaint which is indissociable from one of the complaints put forward in the fourth part of the ninth plea and which has already been rejected as unfounded (see paragraph 597 above).
673    Thus, and in any event, it does not appear that, in the circumstances of the present case, the Commission infringed paragraphs 80, 81 and 92 of the Remedies Notice by not consulting market participants concerning the first and second proposed commitments.
674    Lastly, it must be stated that, under the time constraints relating to merger proceedings, the Commission duly conducted, in the present case, the market test on the final commitments validly proposed by the applicant, namely the third proposed commitments, in accordance with recital 17 of Regulation No 802/2004.
675    Having regard to all the foregoing considerations, the first and second complaints must be rejected.
(b)    The third complaint
676    The applicant relies on the principle of good administration and recital 35 of Regulation No 139/2004 in support of its argument that the Commission was required to consult market participants within a sufficient period of time to allow it to adjust or improve, where appropriate, the third proposed commitments, in the light of the outcome of the market test.
677    On the basis of the case-law already cited in paragraph 663 above, it must be held that the principle of good administration does not confer any right on the applicant which would have required the Commission to consult market participants earlier concerning the third proposed commitments.
678    In so far as the applicant argues that such an obligation arises from the application of the principle of good administration, in conjunction with an obligation reflected in recital 35 of Regulation No 139/2004, it must be borne in mind that, apart from the fact that that recital does not deal with the question of the time limit that might be given to the notifying parties, after the market test concerning the commitments, to enable them to adapt or amend those commitments in the light of the results of the market test, it is clear from the case-law already cited in paragraph 664 above that such an obligation on the part of the Commission cannot, in any event, be inferred from a single recital.
679    The applicant has not invoked any other legally binding rule of EU law on concentrations from which the obligation it alleges could have arisen for the Commission.
680    In any event, in the light of the case-law cited in paragraph 504 above, the fact that the Commission received sufficient responses from market participants on the third proposed commitments means that it was possible that the market test in question was carried out satisfactorily and, therefore, in compliance with the obligations arising from Regulation No 139/2004.
681    Having regard to all the foregoing considerations, the third complaint must be rejected.
682    Consequently, the first part of the eleventh plea in law must be rejected in its entirety.
2.      The second part of the eleventh plea in law
683    By the second part of the eleventh plea, the applicant complains that the Commission refused to organise a second hearing after sending the first letter of facts. Article 18 of Regulation No 139/2004, Article 14 of Regulation No 802/2004 and the principle of respect for the rights of the defence, laid down in Article 48(2) of the Charter of Fundamental Rights, required the Commission to organise such a hearing. According to the applicant, the first letter of facts contained new objections or additional objections in respect of the statement of objections, within the meaning of the case-law, in so far as the Commission intended to base its objections on pre-existing evidence – which the applicant had itself, for the most part, communicated to the Commission on 1 October 2018 in its response to the request for information No 24 – but on which the Commission had not yet relied. A second hearing would have enabled the applicant to explain to the Commission, before third parties, its errors of analysis concerning the third proposed commitments, which could have led the Commission to adopt a different decision.
684    The Commission disputes the applicant’s arguments and contends that the second part of the eleventh plea should be rejected as unfounded.
685    At the outset, it must be noted that observance of the rights of the defence is a general principle of EU law enshrined in the Charter of Fundamental Rights, which must be guaranteed in all proceedings, including merger proceedings before the Commission (see judgment of 7 March 2017, United Parcel Service v Commission, T‑194/13, EU:T:2017:144, paragraph 199 and the case-law cited).
686    In the context of those proceedings, the proper observance of the rights of defence requires, in particular, that the notifying parties be afforded the opportunity, from the stage of the administrative procedure, to make known their views on the truth and relevance of the facts and circumstances alleged and on the documents relied on by the Commission in support of its position (see, to that effect, judgment of 5 October 2020, HeidelbergCement and Schwenk Zement v Commission, T‑380/17, EU:T:2020:471, paragraph 666 (not published)).
687    The first and second sentences of Article 18(3) of Regulation No 139/2004 reflects that principle in providing that ‘the Commission shall base its decision only on objections on which the parties have been able to submit their observations’ and that ‘the rights of the defence shall be fully respected in the proceedings’ (see, to that effect, judgment of 16 July 2009, Commission v Schneider Electric, C‑440/07 P, EU:C:2009:459, paragraph 162).
688    The Commission’s obligations to communicate its objections to the notifying parties and to hear the latter before taking a decision under Article 6(3) or Article 8(2) to (6) of Regulation No 139/2004 are repeated in Articles 13 and 14 of Regulation No 802/2004.
689    The statement of objections is a procedural and preparatory document which, in order to ensure that the rights of the defence may be exercised effectively, delimits the scope of the administrative proceedings initiated by the Commission, thereby preventing the latter from relying on other objections in its decision terminating the procedure in question. It is therefore inherent in the nature of the statement of objections that it is provisional and subject to amendments to be made by the Commission in its further assessment on the basis of the observations submitted to it by the notifying parties and subsequent findings of fact. The Commission must take into account the factors emerging from the whole of the administrative procedure, in order either to abandon such objections as have been shown to be unfounded or to amend and supplement its arguments, both in fact and in law, in support of the objections which it maintains (see judgment of 10 July 2008, Bertelsmann and Sony Corporation of America v Impala, C‑413/06 P, EU:C:2008:392, paragraph 63 and the case-law cited).
690    Article 18(3) of Regulation No 139/2004 implies that, when the Commission finds during the in-depth investigation, following the statement of objections, that a competition problem which may give rise to a declaration of incompatibility has not been mentioned, or has been inadequately formulated, in the statement of objections, it must either abandon the objection concerned at the stage of its final decision or put the notifying parties in a position to submit, before the final decision, all observations on the substantive issues and any proposals for relevant corrective measures (judgment of 16 July 2009, Commission v Schneider Electric, C‑440/07 P, EU:C:2009:459,
paragraph 165).
691    In the present case, the applicant does not dispute that, before adopting the contested decision pursuant to Article 8(3) of Regulation No 139/2004, the Commission sent it a written statement of objections on 24 October 2018, concerning which it was able to submit written observations on 12 November 2018, and that it was subsequently heard orally by the Commission on 19 November 2018.
692    First, the applicant submits that, on 30 November 2018, the Commission sent it the first letter of facts, informing it of the presence of items of evidence which had not been relied on in the statement of objections but which, after further analysis, could be useful in supporting the preliminary conclusions which it had drawn in that statement. It notes that it had communicated most of that evidence to the Commission on 1 October 2018 in its response to the request for information No 24.
693    Second, the applicant criticises the Commission for having allowed it only to make written observations on the content of that letter, but not to be heard orally on that subject, in the context of a second formal hearing, organised in accordance with Article 14(1) of Regulation No 802/2004.
694    In that regard, it is important, first of all, to note that the general principle of observance of the rights of the defence and, in particular, the right to be heard does not mean that the person concerned must be given the opportunity to express his or her views orally. Thus, the exercise of the right to be heard does not necessarily require the person concerned to be given an oral hearing, since the opportunity to provide comments in writing also allows that right to be observed (see judgment of 5 October 2020, HeidelbergCement and Schwenk Zement v Commission, T‑380/17, EU:T:2020:471, paragraph 634 (not published)).
695    Furthermore, it is clear from the wording of Article 14(1) of Regulation No 802/2004, read in conjunction with Article 13 of that regulation, that the Commission is not required to organise an oral hearing unless the notifying parties so request in their written observations on the statement of objections. By contrast, the organisation, at the request of the notifying parties, of new hearings, after that relating to the statement of objections, is provided for merely as being a possibility for the Commission.
696    The applicant does not criticise the Commission for having informed it that it intended to support its provisional findings, in the statement of objections, with evidence that had not been relied on in the statement of objections by a mere letter of facts, rather than by sending it a new statement of objections. In those circumstances, there is no need to consider whether the applicant would have been entitled, in the circumstances of the present case, to obtain a new statement of objections and a new hearing in response to that letter. In any event, the applicant itself acknowledges, in essence, that the first letter of facts merely referred to additional evidence in support of facts, objections or circumstances already contained in the statement of objections.
697    Moreover, it does not dispute, first, that the Commission had informed it of its intention to support its provisional conclusions, drawn in the statement of objections, with the new items of evidence referred to in the first letter of facts and, second, that it submitted its observations on that subject within the time limit set by the Commission. In that regard, it must be noted that, where a document has not been mentioned in the statement of objections, it may nevertheless constitute admissible evidence provided that it was communicated in sufficient time to allow the addressee to prepare its observations before the adoption of the contested decision (see, to that effect, judgment of 5 October 2020, HeidelbergCement and Schwenk Zement v Commission, T‑380/17, EU:T:2020:471, paragraph 636 (not published)). In the present case, the applicant had the opportunity to express in due time, in writing, its opinion on the probative value of the new evidence referred to in the first letter of facts. Accordingly, its rights of defence were, in that regard, observed, as the hearing officer also found, when the matter was referred by the applicant in the course of the administrative proceedings.
698    That finding is not called into question by the fact that most of the new items of evidence relied on by the Commission in the first letter of facts already existed, in its case file, before the statement of objections, since they had been sent to it by the applicant, on 1 October 2018, in response to the Commission’s request for information No 24. That circumstance is irrelevant since, as is apparent from the case-law cited in paragraph 689 above, the Commission’s position, in the statement of objections is merely provisional and can change with further analysis of the case file, provided that that change takes place in observance of the rights of the defence of the notifying parties (see, to that effect and by analogy, judgment of 20 March 2002, LR AF 1998 v Commission, T‑23/99, EU:T:2002:75, paragraph 190). As has already been noted in paragraph 697 above, the Commission’s taking into account, after the statement of objections, of pre-existing evidence took place, in the present case, in observance of the applicant’s rights of defence.
699    Similarly, that finding is not called into question by the fact that the applicant had requested, in its observations in reply to the first letter of facts of 12 November 2018, a new hearing on the content of that letter, since, as has already been pointed out in paragraph 695 above, under Article 14(1) of Regulation No 802/2004, the Commission was not required to grant such a request.
700    In any event, a breach of the rights of the defence justifies the annulment of the contested decision only where there is a possibility that, had it not been for that breach, the outcome of the administrative proceedings conducted by the Commission could have been different. An applicant establishes that there has been such a breach where it demonstrates, to the requisite legal standard, not that the Commission’s decision could have been different in content, but rather that it would have been better able to ensure its defence had no error been found (see judgment of 2 October 2003, Thyssen Stahl v Commission, C‑194/99 P, EU:C:2003:527, paragraph 31 and the case-law cited).
701    In the present case, the applicant has not demonstrated to the requisite legal standard that it would have been better able to defend itself by being heard orally, rather than in writing, concerning the new items of evidence relied on by the Commission in the first letter of facts to support the provisional conclusions that it had drawn in the statement of objections.
702    Thus, no breach of the rights of the defence having a possible effect on the outcome of the administrative proceedings has been established by the applicant as a result of the Commission’s refusal to organise a second hearing after the first letter of facts was sent.
703    On the basis of the foregoing considerations, the second part of the eleventh plea must be rejected, with the result that that plea in law must be rejected in its entirety.
704    Since all the pleas in law relied on in support of the present action have thus been rejected, the action must itself be dismissed in its entirety.
II.    Costs
705    Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
706    Since the applicant has been unsuccessful in the present case, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (Second Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Wieland-Werke AG to pay the costs.
Tomljenović
Schalin
Škvařilová-Pelzl
Delivered in open court in Luxembourg on 18 May 2022.
E. Coulon
M. van der Woude
Registrar
President
Table of contents
I.
Background to the dispute
A.
Parties to the concentration and products at issue
B.
Administrative proceedings
C.
Contested decision
D.
Procedure and forms of order sought
II.
Law
A.
The second plea in law, alleging a flawed and manifestly erroneous assessment of the facts concerning the identification of the relevant market as highly differentiated and characterised by different segments
1.
The first part of the second plea in law
2.
The second part of the second plea in law
B.
The first plea in law, alleging manifest errors of assessment and of law, and a breach of the principle of legal certainty, concerning the market to be taken into account for the purposes of the competition analysis of the concentration at issue and the proposed commitments
C.
The third plea in law, alleging manifest errors of assessment on account of the adoption of an approach contradicting the one taken in the KME/MKM decision
D.
The fourth plea in law, alleging manifest errors of assessment resulting from the taking into account, for the first time in the contested decision, of a theory of harm based on a sui generis test as regards the effects of the concentration at issue, mixing horizontal and vertical effects
E.
The fifth plea in law, alleging manifest errors in the assessment of the competitive situation prevailing on the relevant market or in the specific segments of that market
1.
The first part of the fifth plea in law
2.
The second part of the fifth plea in law
3.
The third part of the fifth plea in law
(a)
The first limb of the third part of the fifth plea in law
(b)
The second limb of the third part of the fifth plea in law
(c)
The third limb of the third part of the fifth plea in law
(d)
The fourth limb of the third part of the fifth plea in law
(1)
The first complaint, alleging that the Commission understated the competitive constraint exercised by KME/MKM on the relevant market
(2)
The second complaint, alleging that the Commission understated the competitive constraint exercised by Sofia Med on the relevant market
(3)
The third complaint, alleging that the Commission understated the competitive constraint exercised by other competitors on the relevant market
F.
The sixth plea in law, alleging manifest errors of assessment as regards the existence of sufficient possibilities, for the industrial customers, to switch suppliers on the relevant market
1.
The first part of the sixth plea in law
2.
The second part of the sixth plea in law
3.
The third part of the sixth plea in law
G.
The seventh plea in law, alleging manifest errors in assessing the alleged price increases attributable to the concentration at issue on the relevant market
A.
Eighth plea in law, alleging manifest errors of assessment concerning the anticompetitive effects of the change from joint to sole control on the part of the applicant over Schwermetall
1.
The first part of the eighth plea in law
2.
The second part of the eighth plea in law
3.
The third part of the eighth plea in law
4.
The fourth part of the eighth plea in law
B.
The ninth plea in law, alleging errors of law and manifest errors of assessment concerning the adequacy of the proposed commitments
1.
The first part of the ninth plea in law
2.
The second part of the ninth plea in law
3.
The third part of the ninth plea in law
(a)
The first limb of the third part of the ninth plea in law
(b)
The second limb of the third part of the ninth plea in law
4.
The fourth part of the ninth plea in law
C.
The tenth plea in law, alleging manifest errors in the assessment of the responses to the market test questionnaire on the third proposed commitments
1.
The first part of the tenth plea in law
2.
The second part of the tenth plea in law
D.
The eleventh plea in law, alleging infringement, in the administrative proceedings, of essential procedural requirements and of the principle of good administration
1.
The first part of the eleventh plea in law
(a)
The first complaint, put forward as the principal argument, and the second complaint, put forward in the alternative
(b)
The third complaint
2.
The second part of the eleventh plea in law
II.
Costs
*      Language of the case: English.