Provisional text
OPINION OF ADVOCATE GENERAL
MEDINA
delivered on 15 May 2025 (1)
Case C‑541/23 P
Polwax S.A.
v
European Commission
( Appeal – Competition – Concentrations – Market for slack wax and market for paraffin wax – Acquisition of control over Grupa Lotos by PKN Orlen – Decision declaring the concentration compatible with the internal market and the EEA Agreement – Action for annulment brought by a third party – Definition of the relevant markets – Burden and standard of proof – Standard of review by the General Court in merger cases )
1.        By its appeal, Polwax S.A. seeks to have set aside the judgment of the General Court of 14 June 2023,
Polwax v Commission
(T‑585/20, ‘the judgment under appeal’, EU:T:2023:332). That judgment dismissed its action seeking annulment of Commission Decision of 14 July 2020 (‘the decision at issue’), (2) by which the European Commission declared a concentration between Polski Koncern Naftowy Orlen S.A. (‘Orlen’) and Grupa Lotos S.A. (‘Lotos’) to be compatible with the internal market and with Article 57 of the Agreement on the European Economic Area (EEA), subject to Orlen’s compliance with certain commitments.
2.        Polwax puts forward nine grounds in support of its appeal. However, in keeping with a request by the Court of Justice, the present Opinion only addresses the first ground of appeal.
3.        In particular, under that first ground of appeal, Polwax claims that the General Court committed an error of law and a manifest error of assessment and distorted Polwax’s position (i) by stating that, as an interested party, it was obliged to provide ‘compelling indications’ that there was a competition concern in a situation where that criterion should not have been applied; and (ii) by requiring from Polwax ‘compelling evidence’ that the products investigated by the Commission in the upstream market (the market for slack wax (3)) were not substitutable on the demand side or on the supply side, whereas such obligations are not found in Regulation No 139/2004 in relation to third parties, and (iii) by finding that the information provided by Polwax in the course of the proceedings does not constitute such ‘compelling indications’. Moreover, Polwax argues that the General Court committed an error of law in failing to analyse the dynamic of the individual segments of the upstream market and the actual failure by the Commission to provide a statement of reasons for the findings that the upstream market was neither compartmentalised nor segmented.
I.      Background to the dispute and the procedure before the General Court
4.        The background to the dispute is set out in detail in paragraphs 2 to 23 of the judgment under appeal. For the purposes of the present Opinion, it is sufficient to summarise it as follows.
5.        The appellant, Polwax, is a Polish company producing and marketing paraffin waxes and paraffin-based products.
Orlen is a vertically integrated undertaking, mainly active in the refining and marketing (including retail sales) of fuel and related products in the Czech Republic, Germany, Lithuania and Poland, while Lotos is a vertically integrated undertaking, mainly active in the refining and marketing (including retail sales) of fuel and related products, mostly in Poland. Orlen is active on the petrochemicals market, and both are active in upstream exploration, development and production of crude oil and natural gas.
6.        In the context of the present case, Orlen acquired full control of Lotos. On 15 May 2020, Polwax submitted its comments on the statement of objections and argued that commitments should be established in order to ensure that the concentration would not affect its access to certain inputs which it used in its production processes.
On 14 July 2020, the Commission adopted the decision at issue.
7.        The Commission stated inter alia that ‘the combination of divestitures and other commitments would enable the purchasers of the divested businesses, as well as other competitors, to compete effectively with the merged entity in the relevant markets in the future’, that, ‘in the wholesale diesel and gasoline markets in particular, the purchaser of the stake in the refinery would be able to import significant volumes thanks to greater access to infrastructure’ and that, ‘through this combination of refining capacity and import potential, the purchaser would exert a competitive constraint similar to that of Lotos before the transaction’. The Commission therefore found that ‘the transaction, as modified by the commitments, would no longer raise competition concerns’ and stated that ‘this decision is conditional upon the full compliance with the commitments’. (4)
8.        As regards the effects of the proposed concentration on competition, the Commission examined, in recital 2003 of the decision at issue, the possibility, highlighted by Polwax, that the concentration would lead to input foreclosure. Polwax claimed that ‘the
merged entity would no longer provide it with slack wax or only at a much higher price, so that it would not be able to compete with the merged entity’s downstream paraffin business’.
9.        In that regard, the Commission held, in recital 2004 of the decision at issue,
that if the upstream slack wax market were defined as national, Lotos would have a market share of between 30 and 40% in Poland in 2017 and 2018. While acknowledging that such a market share implied that there were vertical effects, the Commission pointed out that between 60 and 70% of the sources of slack wax continued to be available and that Orlen itself used external suppliers. The Commission therefore concluded that it did not appear that the merged entity would have the ability to foreclose access to slack wax for Lotos’s customers active on the paraffin wax market.
10.      The Commission added, in recital 2005 of the decision at issue, that Orlen had only a very small share of the downstream market and therefore concluded that the merged entity would also not have an interest in foreclosing access to inputs for Lotos’s customers active on that market. The Commission noted that Polwax
itself stressed that competition on the said market was lively, in some instances occurring at a global scale and with the Chinese producers also exerting pressure.
11.      The Commission affirmed in recital 2006 of the decision at issue that its investigation did not reveal compelling evidence pointing to a significant impediment to effective competition (SIEC) with regard to the vertical link between the slack wax market in Poland and the paraffin wax market in the EEA.
12.      Before the General Court, Polwax essentially relied on two pleas in law. By its first plea, it claimed that the Commission had infringed Article 2(1) to (3) of Regulation No 139/2004,
which deals with mergers. The Commission’s alleged error consisted in defining the markets incorrectly, first, with regard to the downstream market for paraffin wax and, secondly, with regard to the upstream market for slack wax. In addition, Polwax criticised the Commission for assessing
incorrectly the effects of the merger on both the slack wax market and the paraffin wax market. The second plea alleged an infringement of Article 9(1) of Regulation No 139/2004 (but was subsequently withdrawn at the hearing). In its reply, Polwax also submitted a new plea, alleging that the decision at issue provided insufficient reasons with regard to the definition of the relevant markets.
By the judgment under appeal, the General Court dismissed the action in its entirety. (5)
II.    Assessment
13.      Polwax’s first ground of appeal alleges errors of law, manifest errors of assessment and distortion of Polwax’s position, in that the General Court, in paragraphs 45 and
57 to 62 of the judgment under appeal, failed to carry out an effective review of the Commission’s definition of the relevant market in the decision at issue and imposed an incorrect standard of proof on the applicant. The first ground of appeal is divided into three parts.
A.      First part of the first ground of appeal
14.      By the first part of the first ground of appeal, Polwax claims, in essence,
that the General Court erred in law and infringed Article 2 of Regulation No 139/2004 by requiring it, in paragraph 45 of the judgment under appeal, to adduce ‘compelling indications’ demonstrating the existence of a competition concern in support of its plea alleging that the upstream market for slack wax was defined incorrectly.
1.      Admissibility
15.      The Commission argues that the first part of the first ground of appeal is inadmissible, given that
Polwax contested, before the General Court, the failure to divide the upstream market for the supply of slack wax into other distinct submarkets. Thus, it claimed that the Commission had erred in not further dividing or segmenting the slack wax market into markets for the supply of light-grade, medium-grade and heavy-grade slack wax. Polwax therefore contradicts itself, first, by asserting before the Court of Justice that its complaint did not relate to markets ‘other’ than those taken into account by the Commission in its analysis and, secondly, by arguing that the Commission ought to
have divided the slack wax market into smaller submarkets (or at least into segments) in the decision at issue for the purposes of its analysis of the prospective effects of the merger.
16.      Contrary to the Commission’s assertions, the first
part
of the first ground of appeal is admissible, in so far as it is clear from the Court’s case-law that an alleged failure to have regard to the rules of evidence is a question of law, which is admissible in an appeal. (6)
2.      Substance
17.      In the judgment under appeal, the General Court relies on the standard of proof for third-party applicants
challenging the lawfulness of a merger decision, as established by its case-law, which
the Court of Justice’s
case-law has not yet addressed. (7) It is,
therefore,
appropriate, first, to assess,
in general, the appropriate
standard of proof
in the light of the Court of Justice’s case-law and whether the General Court’s case-law is compatible with the
appropriate standard of proof; and, secondly, to examine, in particular, whether the General Court applied that standard correctly
in the present case
in relation to the definition of the relevant market.
(a)    Preliminary observations on the burden and standard of proof as well as on the standard of review
18.      As I will demonstrate in the following analysis, the concepts of burden and standard of proof as well as that
of
standard of (judicial) review are interrelated, particularly in merger cases, and must therefore be dealt with together. (8)
(1)    The Commission must demonstrate that it is more likely than not that the concentration would (or would not) significantly impede competition
19.      Pursuant to Article 2 of Regulation No 139/2004, the Commission is required to examine the effects of the merger on competition in the markets in which there is a risk of
an effective SIEC, in particular as a result of the creation or strengthening of a dominant position.
20.      It is apparent from the Court of Justice’s case-law that ‘decisions of the Commission as to the compatibility of concentrations with the internal market must be supported by a sufficiently cogent and consistent body of evidence’. (9) That evidence must be accurate and reliable and must be capable of substantiating the conclusions drawn from it. (10) Furthermore, as the General Court has further clarified, the Commission must not only establish its case on the basis of convincing evidence, but it must do so also ‘with a sufficient degree of probability’ (11) that the merger would (or would not) have a significant impact on effective competition.
21.      In that regard, the Court of Justice has accepted that
the Commission has a margin of discretion when assessing economic matters for the purpose of the application of the substantive rules of Regulation No 139/2004,
since it carries out prospective economic analyses regarding the likelihood of certain developments in the relevant market in the future. (12) Based on the appraisal that in merger cases the Commission’s analysis cannot be as certain as its
ex post
analyses (under Articles 101 and 102 TFEU) and is prospective in nature,
the Court has ruled that the Commission must adduce a body of evidence to show that it is more likely than not that the concentration concerned would or would not significantly impede competition. (13)
22.      As the General Court has clarified,
‘the fact that a concentration produces anticompetitive effects is not, in itself, sufficient for that concentration to be regarded as incompatible with the internal market, provided that it does not significantly impede effective competition in the internal market or in a substantial part of it’. (14)
(2)    The applicant must show that there has been a manifest error of assessment
23.      The margin of discretion available to the Commission ‘justifies the review by the EU Courts of a Commission decision relating to concentrations being confined to ascertaining that the facts have been accurately stated and that there has been no manifest error of assessment’. (15)
24.      In order to grant access to such review by the EU Courts,
EU law
provides parties concerned by Commission merger decisions (including third parties such as competitors or customers) with a right, in principle, to bring an action challenging the lawfulness of that decision before the General Court under Article 263 TFEU,
in accordance with the principle of effective judicial protection under Article 47 of the Charter of Fundamental Rights of the European Union.
25.      That being said, that right is accompanied by an obligation
on the applicant to define the pleas in law it raises and to adduce evidence in support of those pleas.
26.      When
an applicant brings such an action, in accordance with Article 76(d) of the Rules of Procedure of the General Court, ‘it is necessary, for an action to be admissible, that the basic legal and factual particulars relied on be indicated, at least in summary form, coherently and intelligibly in the application itself, so as to guarantee legal certainty and sound administration of justice.’ (16) The Court of Justice’s case-law makes clear,
in that regard,
that the applicant plays an important role by recalling that ‘it is for the applicant to raise pleas in law against [the]
decision and to adduce evidence in support of those pleas’. (17)
27.      More specifically, when it comes to areas of EU law to
which
EU merger control is related, such as competition law under Articles 101 or 102 TFEU, ‘the applicant is required … to identify the impugned elements of the contested decision, to formulate grounds of challenge in that regard and to adduce evidence – direct or circumstantial [(18)] – to demonstrate that its objections are well founded’. (19)
28.      In
the judgment in EFIM v Commission, (20) the Court of Justice dismissed the appellant’s plea in law seeking a declaration that, by requiring it to provide evidence of the alleged infringement, the General Court had infringed Article 47 of the Charter of Fundamental Rights. The Court stressed that, in an action for annulment of a Commission decision, it is for the applicant to submit arguments and evidence to the EU
Courts and, therefore, the General Court had not committed an error of assessment in finding that the burden of proof lay with the applicant. (21) That ruling is particularly relevant since
both (i) third parties in merger control cases and
(ii) third-party complainants in proceedings relating to
Articles 101 and 102 TFEU
share similar characteristics, including the fact that they both have only a limited right of access to the Commission’s administrative file. (22)
29.      Similar observations can be drawn from the Court of Justice’s case-law in other related areas of EU law. First,
in EU State aid law, it is settled case-law of the Court of Justice that the fact that the General Court expects a party bringing an action for annulment to produce evidence in support of its allegations is not contrary to the correct allocation of the burden of proof. Instead, ‘it is in principle for the person who alleges facts in support of a claim or argument to provide proof of their reality’. (23) Secondly, the Court of Justice applied the same formula also in anti-dumping case-law. (24)
(3)    Standard of proof: the information must demonstrate a manifest error of assessment, which makes the Commission’s assessment implausible, thereby tipping the balance
30.      Next, I will address the question of the appropriate
level of the standard of proof required from the applicant in merger cases.
31.      In relation to the review of complex economic assessments, the Court has ruled that in order to establish that the Commission made a manifest error in assessing the facts such as to justify the annulment of the decision at issue, the evidence adduced by the applicant must be sufficient to make the factual assessments used in the decision implausible. (25)
32.      In merger cases, the evidence will rarely be uniform and,
as a result,
the Commission must carry out a weighing (or prioritising) of the evidence and indicia. To respond to that specific situation, the General Court has, in its existing case-law,
correctly ruled that an applicant will be successful
only if it can be demonstrated that the weighing of the different items
of evidence in the file is unjustified and
implausible, to the point of being incapable of supporting the Commission’s assessment. (26)
33.      In that connection, it should be noted that the Court of Justice and the General Court do not expect an applicant to prove beyond reasonable doubt (27) that the Commission has committed a manifest error in its assessment of the concentration. The relevant test is the balance of probabilities, (28) which is accompanied by specific requirements relating to the quality of evidence which,
in principle, do not affect the standard of proof required. (29)
34.      It follows from the foregoing considerations that, in merger cases, the applicant is required to provide coherent and sufficient information (that is, pleas and evidence or indicia). For instance, in a situation such as the one in the present
case (which relates to the definition of the relevant market), the quality of the information is to correspond
in its scope and degree of detail to the requirements of Section 6 of Form CO (30) in Annex I to Regulation No 802/2004, (31) entitled ‘Market definitions’. As pointed out by the Court of Justice, the essential function of the evidence is to establish convincingly the merits of an argument, (32) and,
therefore,
the quality of evidence must, in any event, be capable
of enabling
the General Court to determine the existence of the alleged manifest error of assessment. (33)
35.      It follows that the applicant must adduce coherent and sufficient information
to demonstrate
the alleged manifest error, which in turn renders the Commission’s assessment implausible, thus tipping the balance in favour of the applicant’s conclusion and against the Commission’s conclusion
(as to whether or not to approve the merger in question). That being said, the level of the standard of proof required of the applicant ought to
be limited, taking account of the specific aspects of EU merger control and its procedure. To begin with, the Commission is required to adduce evidence to show that it is more likely than not that the concentration concerned would (or would not) significantly impede effective competition. Consequently, the applicant may not be required to do more than demonstrate
a manifest error of assessment
which
could tip that balance in the direction noted above.
36.      Two further aspects must
be kept in mind when assessing the quality of evidence within the limits of the standard of proof imposed on an applicant. First, the applicant
also
faces difficulties when it carries out its prospective analysis for the purposes of contesting the proposed merger decision. The evidence to be adduced to demonstrate the manifest error of assessment of the Commission is also
framed by uncertainty and the prospective nature of the analysis underlying that merger decision. (34) Secondly, and additionally, for the purposes of gathering evidence, an applicant does not enjoy the same powers of investigation as are available to the Commission. (35) Therefore, the requirement for the applicant to sufficiently substantiate its pleas cannot be placed on a completely
equal footing with the requirements
imposed on that institution. In any event, the requirements on the applicant remain limited to the obligation to provide coherent and sufficient information substantiating the alleged manifest error of assessment
made
by the Commission, which as a result renders
the latter’s assessment implausible. (36)
37.      Views such as those referred to
in point 31 of the present Opinion
have also been expressed in legal academic literature, (37) pointing out
that the Court’s judgment in Bertelsmann and Sony ought to be interpreted as meaning that the applicant has to present evidence to substantiate its claim that the Commission has committed a manifest error of assessment, but does not have to put forward evidence which actually proves its own substantive assessment (and, for instance, is not required to prove why the merger will result in harm to competition). Once the applicant has overcome the obstacle of sufficiently substantiating a manifest error of assessment, the Commission is then obliged to defend its factual findings and its legal and economic assessment, thereby bearing the final burden of proof. (38)
38.      Therefore, I consider that, in principle, the
applicant is required to demonstrate, on the basis of its pleas and evidence or indicia in support of those pleas,
that the Commission’s assessment and conclusions drawn from such assessment are not well
founded. In order to succeed, the evidence must
be capable of coherently and sufficiently substantiating that the Commission’s assessment is implausible, which amounts to a manifest error of that assessment.
(4)    The requirement to provide compelling indications that there is a genuine competition concern, which the Commission ought to have examined
39.      The judgment under appeal relies on the requirements which have so far been developed by the General Court
(in the judgments in
easyJet and in Niki Luftfahrt) but have not yet been addressed by the Court of Justice.
Therefore, before I proceed to the assessment of the substance of the first ground of appeal, I will evaluate whether the level of the standard of proof
developed by that case-law is consistent with the requirements established by the case-law of the Court of Justice as analysed above. (39)
40.      In the judgment in
easyJet,
the General Court explains, in particular, that the Commission is bound, even in the absence of any express request by third parties but where there are serious indications to that effect, to assess the competition problems created by the merger on all the markets which may be affected by it. (40)
41.      Where the third-party applicant alleges that the Commission failed to have regard to a possible competition concern,
the General Court set the standard of proof
as follows:
‘it is for the applicant to adduce serious evidence of the genuine existence of a competition problem which, by reason of that effect, should have been examined by the Commission’. (41)
42.      When explaining the type and quality of the evidence, the General Court indicates
that, ‘in order to discharge that burden [and standard] of proof, the applicant should identify the relevant markets, describe the state of competition in the absence of the merger and indicate what would be the likely effects of a merger given the state of competition on those markets.’ (42)
43.      As the Commission correctly pointed out, the requirement to show that there is a competition concern allows the General Court, in accordance with the adversarial principle set out in Article 64 of its Rules of Procedure, to rule on the action, without having to request further information, in order to guarantee legal certainty and the sound administration of justice. (43)
44.      In support of that conclusion, the General Court
stated,
in the judgment in easyJet, that it was not sufficient for
the applicant to ‘merely assert’ a theory of harm (44) without, however,
‘adducing evidence in support of its argument’ (45) and concluded that the applicant’s allegations could not be theoretical, abstract or amount to general assertions. (46) Rather, they must be sufficiently clearly formulated (47) and tangible evidence
must be adduced to demonstrate that the Commission’s findings are vitiated by a manifest error of assessment. (48)
45.      In my view, the clarifications provided regarding the type and quality of the evidence required are consistent with the requirement to provide coherent and sufficient information to support the pleas in law.
46.      In the judgment in Niki Luftfahrt, the General Court reaffirmed the principles from the judgment in
easyJet and introduced further guidance for applicants.
47.      In particular, the General Court ruled in the judgment in Niki Luftfahrt
that the applicant must ‘identify the relevant markets, describe the state of competition in the absence of the merger and indicate what would be the likely effects of a merger given the state of competition on those markets’. (49) An applicant before the General Court
may
satisfy that requirement by providing information
the amount and nature of which is comparable to the information required under Section 6 of Form CO in Annex I to Regulation No 802/2004 submitted by merging parties to the Commission in the context of the notification of a merger. (50)
48.      Indeed, Section 6 of Form CO can be a useful proxy for the amount and nature of evidence required in a situation
such as that found in the present case,
which relates to the definition of the relevant market,
in so far as it allows third-party applicants, such as Polwax, to obtain a better understanding
of the type of evidence and indicia they must adduce before the General Court when disputing the Commission’s market definition in a merger decision.
49.      It follows from the foregoing considerations that, when an applicant is challenging the lawfulness
of a Commission decision approving a
merger, it must demonstrate a manifest error in the Commission’s assessment by adducing compelling indications that there is a genuine competition concern which, by reason of its effect, ought to
have been examined by the Commission. In order to discharge that burden, the applicant must adduce coherent and sufficient information of a
quality
which
substantiates convincingly the merits of the arguments and enables the General Court to determine whether the alleged manifest error exists. In that regard, the applicant is required to demonstrate, on the basis of the information it provided (namely
pleas and evidence or indicia in support of those pleas), that the Commission’s assessment and conclusions drawn from such assessment are not well
founded and implausible,
thus tipping the balance of probabilities in favour of the applicant’s conclusion and against the conclusion set out by the Commission in its decision. The judicial review must, nevertheless, take into account the limitations imposed by the ex ante nature of merger control.
(5)    Final observations on the terminology used in the General Court’s case-law
50.      As
my final observations on the General Court’s case-law, which was relied upon in the judgment under appeal, I will briefly address certain terminological inconsistencies. However, as I will explain, they
result mainly from differences between
the various
language versions but do not render that case-law inconsistent as
regards the substance and, in particular, the standard of proof.
51.      In the judgment in Niki Luftfahrt,
the term ‘serious indicia’ in the English-language version is, in the German-language version – which, in accordance with Article 49 of the Rules of Procedure of the General Court, is the authentic text – ‘zuverlässige Indizien’, and that used in the French-language version is ‘indices sérieux’. In the Polish-language version of that judgment, the General Court stated that, in order to challenge the definition of the relevant market, the applicant had to provide ‘wiarygodne przesłanki’, which translates into English as ‘reliable evidence’.
52.      By contrast, in the Polish-language version of the judgment under appeal (paragraphs 59 and 60), which is the authentic text, the General Court stressed, with regard to the allegedly erroneous definition of the relevant market, the need to provide ‘poważne poszlaki’ (‘serious indicia’). (51) That is a different concept from that used in the judgment in Niki Luftfahrt. Similarly, in the English-language version of the judgment under appeal, ‘compelling evidence’ (paragraphs 57 to 61) or ‘compelling indications’
(paragraph 45) must be adduced, whereas the English-language version of the judgment in Niki Luftfahrt, as stated above, required ‘serious indicia’ to be adduced. In the French-language version of the judgment under appeal, however, the General Court used the concept of ‘indices sérieux’ (for both ‘compelling indications’ and ‘compelling evidence’), that is to say, the same concept as in the judgment in
Niki Luftfahrt.
53.      However, as the Commission correctly points out,
those terminological differences have no impact on the standard of proof and quality of evidence required by the General Court. That is due to the fact that, as indicated above, in all of the latter’s
judgments in question, it
required the applicant to demonstrate that there was a manifest error of assessment by
providing
comparable information, which, in essence, met the requirements laid down in Section 6 of Form CO.
(b)    The first part of the first ground of appeal: the application of the case-law (the judgments in easyJet  and in Niki Luftfahrt)  in the judgment under appeal
54.      The decision at issue  defined the upstream market, in recital 1997, as that of the supply of slack wax, based mainly on the Commission’s previous decision-making practice (paragraphs 52 and 53 of the judgment under appeal).
55.      The General Court (paragraph 56 of the judgment under appeal) noted that Polwax’s
written pleadings contained a number of
references to the various types of slack wax, namely light-grade, medium-grade or heavy-grade, and to their different properties and uses, but that, in so far as those references were to be understood as constituting an objection alleging an incorrect definition of the upstream market on the ground that the Commission ought to
have held
that there were three different markets, concerning those three types of slack wax, such an objection could not succeed. (52) The General Court rejected that
plea in paragraphs 57 to 62 of the judgment under appeal.
56.      In paragraph 45 of the judgment under appeal, the General Court referred to the applicable standard of proof, whereby the applicant was required, in particular, to ‘adduce compelling indications of the genuine existence of a competition concern which, by reason of its effect, should have been examined by the Commission’. (53)
57.      In paragraphs 57 to 62 of the judgment under appeal, the General Court held, in essence, that it was for Polwax to provide serious evidence demonstrating that the degree of interchangeability between
light-, medium- and heavy-grade slack wax was insufficient for them to fall within the same market, and more specifically that it was for the applicant to provide serious evidence to demonstrate that
those different types of slack wax were not sufficiently substitutable on the demand side and on the supply side for them to fall within the same market, which the applicant had failed to do.
58.      On appeal, Polwax
is arguing, in essence, that the General Court erred in law and infringed Article 2 of Regulation No 139/2004 by requiring it, in paragraphs 45 and
57 to 60 of the judgment under appeal, to adduce, in support of its plea based on the erroneous definition of the upstream market, ‘compelling indications’ enabling the definition of relevant markets which are narrower than the market defined by the Commission.
Polwax claims
that such a requirement to provide ‘compelling
indications’ (‘serious indicia’) demonstrating the existence of a competition concern, in accordance with the judgments in easyJet and Niki Luftfahrt,
did not apply in the present case. According to Polwax, such an evidentiary requirement concerns only problems ‘on markets other than those covered by the Commission’s competitive analysis’, which is not so for the alleged, more limited,
relevant markets, which concerned products examined by the Commission in the decision at issue.
59.      The Commission contends that the first part of Polwax’s first ground of appeal is ineffective and therefore inadmissible. Moreover, the Commission and Orlen
argue, in essence, that Polwax’s arguments are contradictory and that that part is, in any event, unfounded.
60.      I consider  that Polwax’s main argument to the effect that the judgment under appeal
contains an erroneous application of the case-law
in easyJet and in Niki Luftfahrt, in so far as that case-law allegedly relates only to concerns on markets other than those covered by the Commission’s competitive analysis, is unfounded.
61.      The burden of adducing compelling indications is incumbent on the applicant, in principle, in relation to any particular market, in so far as it intends
to substantiate materially the complaints it is making in relation to the Commission’s definition of the relevant market before the General Court.
62.      I consider that, in paragraphs 45 and 57 of the judgment under appeal, the General Court simply recalled that it is not sufficient, given its limited scope for review in matters of complex economic assessment, for an applicant merely to assert before it that the market definition is erroneous.
63.      In paragraph 58 of the judgment under appeal, the General Court observed that ‘more specifically, in the light of the method set out in the Commission Notice on the definition of the relevant market for the purposes of [EU] competition law [(54)]), it was for the applicant to adduce compelling evidence to demonstrate that the different types of slack wax were not sufficiently substitutable on the demand side and the supply side for them to belong to the same market.’
64.      Next, in paragraph 59 of the judgment under appeal, the General Court noted that ‘from the point of view of demand, the applicant ought to have adduced compelling evidence to demonstrate that customers of one type of slack wax would not refer to another type of slack wax in the event of a slight increase in price, so that they could not be regarded as substitutable’. (55)
65.      The General Court added in paragraph 60 of the judgment under appeal that, ‘from the point of view of supply, the applicant ought to have adduced compelling evidence to demonstrate that suppliers of one type of slack wax could not switch their production to the production of another type of slack wax and market it in the short term without incurring any substantial additional costs or risk in response to small and permanent changes in relative prices (see, to that effect, paragraphs 20 to 24 of the Notice on the definition of the relevant market).’
66.      Requiring the applicant to provide ‘compelling indications’
(or ‘compelling evidence’) should not be interpreted as going so far as to require a complete and systemic analysis (which is incumbent on the Commission). Instead, in line with the requirement to adduce coherent and sufficient information which convincingly establishes the substance of the arguments, the applicant
is required at the very least to provide reliable, verifiable and objective indications which are capable of demonstrating that a more limited
market definition was clearly necessary, a fortiori in the absence of any overlap between the parties to the merger
in the markets concerned.
67.      The logic of the requirements established in the General Court case-law (the judgments in easyJet and in Niki Luftfahrt)
does not require the applicant in the proceedings before the General Court – as opposed to the Commission – to demonstrate that there is an
SIEC, but rather
to establish that the Commission made
a manifest error of assessment in its definition of the relevant market and in its competitive analysis. Such a manifest error could have been made
if the Commission had completely ignored the existence of certain other markets, which were therefore not taken into account in its competition analysis. However, in order to establish such a manifest error, it is not sufficient simply to assert that the Commission made
an error; it is also necessary to identify the other markets which did not overlap with
the parties’ activities and to provide coherent and sufficient
information
demonstrating that, on those markets, there is a competition concern resulting from the merger. (56)
68.      In other words, in my view, requiring ‘compelling indications’
from the applicant means that the indications
adduced must be persuasive and specific enough to justify overturning the Commission’s complex assessment in its merger control decision. Those indications must demonstrate that the Commission made a manifest error of assessment and that its
assessment no longer supports the conclusion that it is more likely than not that the merger ‘would not’ (or ‘would’, as the case may be) significantly impede effective competition.
69.      Were
the bar for the standard of proof set as low as allowing third-party applicants to succeed in overturning Commission decisions without compelling indications – merely by way of relying on theoretical arguments or simple allegations – then that would unduly hinder the efficient enforcement of EU merger control. (57)
70.      It follows that the General Court made no error when it imposed on Polwax an obligation to ‘adduce compelling indications of the genuine existence of a competition concern which, by reason of its effect, should have been examined by the Commission’ (paragraph 45 of the judgment under appeal).
That allowed the General Court to rule, in essence, in paragraph 61 of the judgment under appeal, that Polwax had failed to substantiate its allegations by means of compelling
evidence demonstrating that the degree of interchangeability between those different types of slack wax was not sufficient for them to be substitutable from a demand perspective or a supply perspective.
71.      For the sake of completeness, I will make the following observations.
72.      Polwax challenged, before the General Court, the failure to divide the upstream market for slack wax into distinct markets for the supply of light-, medium- and heavy-grade slack wax.
73.      As the Commission pointed out, it is arguable that Polwax cannot, without contradicting itself, on the one hand, complain
in its appeal of a lack of competitive analysis of
what it considers to be separate relevant markets and,
on the other hand, argue, in order to exclude the case-law of the General Court from applying, (58) that those markets have nevertheless been the subject of a competitive analysis. Regardless of that potential contradiction, the fact remains that Polwax was obliged to substantiate its plea by way of coherent and sufficient information.
74.      Moreover, as Orlen
noted, in essence, it is apparent from the documents before the Court of Justice that Polwax is not able to define precisely the contours of the other proposed market definitions or, above all, to substantiate in any plausible way the idea that a different market definition would be necessary.
75.      It follows that the General Court correctly addressed Polwax’s arguments raised at first instance and, in my view, the General Court
case-law (the judgments in easyJet and in Niki Luftfahrt)
was applicable and
had been applied correctly in the judgment under appeal.
76.      Accordingly, the first part of the first ground of appeal should be rejected as unfounded.
B.      Second part of the first ground of appeal
77.      The General Court’s findings in paragraphs 57 to 60 of the judgment under appeal, which
are also relevant for the purposes of the second part of the first ground of appeal,
are cited in points 62 to 65 of the present Opinion. Paragraph 61 of the judgment under appeal is summarised in point 70 of the present Opinion.
78.      Polwax
argues, in the second part of its first ground of appeal, in essence, that, even if the requirement to ‘adduce serious evidence of the genuine existence of a competition problem which, by reason of that effect, should have been examined by the Commission’ (59) applied in the present case, that would not mean that Polwax was under an obligation (60) to adduce compelling evidence as regards
each of the various factors taken into account when defining the relevant market. That is to say, Polwax ought not to have been obliged, given that it was only ‘a third party concerned’ in the administrative procedure, to adduce serious evidence demonstrating that the various categories of slack wax (light-, medium- and heavy-grade) were not substitutable either on the demand side or on the supply side.
79.      Polwax argues that the requirements of the General Court go beyond demonstrating that there is a competition concern in the relevant market and that it is de facto required, as the third party concerned, to define in detail the relevant market. Polwax argues that it
was instead for the Commission to provide a detailed definition of the relevant market. Neither Regulation No 139/2004 nor Regulation No 802/2004 impose such extensive obligations on third parties concerned. In the reply, Polwax submits that the Commission erred in stating – for the first time at the appeal stage before the Court, which is thus inadmissible – that the applicant must adduce relevant and consistent evidence which satisfies the SIEC test.
80.      The Commission and
Orlen
contend, in essence,
that the arguments relating to an error of law ought to be rejected as unfounded and that all the arguments relating to an alleged error of assessment are inadmissible.
The Commission recalls, in particular, that the General Court has made clear that it is in the context of that verification of the accuracy of the facts and the absence of a manifest error of assessment that the applicant must ‘adduce serious evidence of the genuine existence of a competition problem which, by reason of that effect, should have been examined by the Commission’. (61) It points out, however, that that obligation must be distinguished from that
incumbent on Polwax, as the third party concerned in the administrative procedure before the Commission, whereas Polwax does not appear to make such a distinction. (62) In the
rejoinder, the Commission dismisses
Polwax’s claims. It also notes that Polwax’s comparison with the easyJet case is in fact tantamount to upholding the Commission’s arguments because in that case, as in the present case, the applicant’s complaints related to separate markets without any overlap between the parties’ activities.
81.      I consider that,
contrary to Polwax’s apparent assertions
via
that line of argument, it is not a question of the applicant’s rights as a third party to the merger control procedure, as provided for in the second sentence of Article 18(4) of Regulation No 139/2004 and in Article 11 of Regulation No 802/2004. Rather,
the question before the Court of Justice is to examine whether the General Court applied, in the context of its review of lawfulness, an adequate standard of proof in order
to determine whether an alleged manifest error existed.
82.      Secondly, in my view, paragraph 45 of the judgment under appeal must be read in conjunction with paragraphs 57 to 60 thereof. As I explained in the context of the first part of the first ground of appeal, the Commission has a margin of discretion in relation to merger control, which justifies the review by the EU Courts being confined, in particular, to ascertaining that there has been no manifest error of assessment. Moreover, I also noted that, in the abovementioned paragraphs, the General Court was correct to rule that it is not sufficient, given its limited scope for review in matters of complex economic assessment, for an applicant merely to assert before it that the market definition is erroneous. Instead, that applicant must also adduce compelling indications to demonstrate that its pleas in law are well founded.
83.      It should be noted, to begin with, that the Court of Justice has made clear that ‘a proper definition of the relevant market is a necessary precondition for any assessment of the effect of a concentration on competition’. (63) It is for those reasons that the General Court expressly stated, in the judgment under appeal, relying on the judgments in
easyJet and Niki Luftfahrt, that, in order to satisfy the requirement to adduce compelling indications, it is for the applicant to ‘identify the relevant markets, describe the state of competition in the absence of the merger and indicate what would be the likely effects of a merger given the state of competition on those markets’. (64)
84.      Therefore, as I explained in the first part of the first ground of appeal, (65) in paragraphs 45 and 57 of the judgment under appeal, the General Court was entitled to require Polwax to adduce ‘compelling indications’ or ‘compelling evidence’, respectively,
demonstrating insufficient interchangeability between the alleged various types of slack wax, in support of its pleas, by which Polwax sought to demonstrate a manifest error of assessment in the Commission’s definition of the relevant market, and to prove that
the product market at issue in this case was a narrower market, thereby rendering the market definition incorrect. Indeed, the General Court merely recalled that it is not sufficient, given the limited review in matters of complex economic assessment, for an applicant merely to assert before that court that the definition of the relevant market was erroneous. In doing so, the General Court did not require Polwax to meet any standard of proof beyond that which is
required of applicants, in situations such as that
in the present case, in order to establish that their pleas are well
founded. (66)
85.      In other words, the General Court was correct in holding that, in order to establish a possible manifest error of assessment committed by the Commission – in failing to
take account of the effects of the concentration on markets narrower than the slack wax market examined by it in its competition analysis – Polwax was required, in the procedure before the General Court, to provide compelling indications identifying such narrower markets. (67)
86.      It follows that the General Court did not adopt an incorrect standard of proof in the present case. Therefore, the second part of the first ground of appeal should be rejected as unfounded.
C.      Third part of the first ground of appeal
87.      The General Court’s findings in paragraphs 57 to 60 of the judgment under appeal, which are also relevant for the third part of the first ground of appeal, are cited in points 62 to 65 of the present Opinion. As mentioned above, paragraph 61 of the judgment under appeal is summarised in point 70 of the present Opinion.
88.      Polwax  argues, by the third part of the first ground of appeal, that, in the abovementioned paragraphs of the judgment under appeal, the General Court held,
in essence, that Polwax had failed to adduce serious evidence of the lack of substitutability between the various categories of slack wax on the demand side as well as on the supply side. According to Polwax, the conclusion regarding the lack of evidence of substitutability is manifestly incorrect because the assertions and evidence which it itself put forward lead to the opposite conclusion. In addition, it submits that, by rejecting its request for an expert’s report, the General Court prevented it from demonstrating that its assertions were accurate.
89.      Furthermore, Polwax takes the view
that the General Court accepted the fact that there was no real justification or analysis of the product market in the decision at issue, and complains that the Commission based its analysis solely on two previous decisions without carrying out its own analysis.
90.      Finally, Polwax
asserts that, even if the Commission’s definition of the relevant market were to be accepted, the General Court infringed the law by failing to analyse the dynamics of the various market segments and by accepting the
failure to state reasons for that institution’s position in the decision at issue.
91.      The Commission contends that the third
part of the first ground of appeal is inadmissible,
in so far as it concerns the assessment of the facts carried out by the General Court, and is, in any event, unfounded.
92.      In its reply, Polwax insists that that
part of the ground of appeal is admissible, referring to the case-law whereby, although the General Court has exclusive jurisdiction to establish and assess the facts, the Court of Justice may review the legal classification of those facts by the General Court and the legal conclusions which that court has drawn from them. That is so for the third part of the first ground of appeal, since it concerns the General Court’s refusal to classify as ‘strong evidence’ of a lack of demand substitutability (i) the fact that slack wax of a given type (for example, light-grade slack wax) cannot be replaced by another type of slack wax (for example, medium-grade slack wax), and (ii) the fact that each type of slack wax is used for the manufacture of specific products. According to Polwax, the foregoing
provides not only a ‘compelling indication’, but is even ‘evidence’ of the lack of demand substitutability. In addition, it argues that the definition of the relevant market constitutes a legal classification of the facts and, as such, has been the subject of questions referred for a preliminary ruling. (68) It also criticises the Commission for having failed to indicate how it had examined the demand and supply substitutability of slack wax.
93.      To my mind,
the third part of the first ground of Polwax’s appeal amounts to no more than
putting forward a number of arguments relating to the assessment of the facts, accusing the General Court of a manifest error of assessment in that it concluded that Polwax had not provided serious evidence demonstrating (i) ‘that
light slack wax, medium slack wax and heavy slack wax and Bright Stock type slack wax were not substitutable for one
another (lack of substitutability on the demand side)’ and (ii) that those types of slack wax were not substitutable on the supply side.
94.      In particular, in paragraph 61 of the judgment under appeal, (69) the General Court made clear findings of fact.
95.      Therefore,
it is sufficient to state that
an assessment by the General Court of evidence adduced before it does not constitute a point of law which is subject as such to review by the Court of Justice, save where the clear sense of the evidence has been distorted. (70) Since Polwax
disputes
the General Court’s assessment of the arguments put before it, which it has
now
repeated before the Court of Justice but without claiming or establishing that the General Court distorted that evidence, the third part
of the first ground of appeal should be declared inadmissible.
96.      In any event, Polwax’s arguments are unfounded, since the General Court was correct in stating criteria governing the assessment of whether potentially narrower markets for slack wax exist
and in concluding that Polwax had failed to provide any serious evidence regarding the lack of substitutability of the different types of slack wax, either on the demand side or on the supply side.
97.      First, as regards demand side substitutability, the General Court noted, in paragraph 59 of the judgment under appeal, that ‘the applicant ought to have adduced compelling evidence to demonstrate that customers of one type of slack wax would not refer to another type of slack wax in the event of a slight increase in price’.
98.      In relation to that criterion, the General Court held, in paragraph 61 of the judgment under appeal, that the allegations that light-, medium- and heavy-grade slack wax constitute different raw material inputs do not amount to compelling evidence demonstrating that the degree of interchangeability between those different types of slack wax was insufficient for them to be substitutable
from the point of view of demand.
99.      It is sufficient to point out that Polwax does not indicate
how the General Court made an error in law or of assessment when it stated that allegations such as those made by Polwax did not amount to compelling evidence that the different types of slack wax were substitutable on the demand side.
100. Secondly, as regards supply side substitutability, Polwax puts forward a number of factual arguments (which had already been raised at first instance) concerning slack wax and its characteristics, the fact that not all refineries produce slack wax, certain restrictions on the supply of slack wax, the dependence of slack wax production on refinery technologies and the raw material used, as well as the absence of a perfect substitute for slack wax produced by Lotos.
101. However, in paragraph 60 of the judgment under appeal, the General Court indicated that, in order to demonstrate that there was no supply side substitutability, it was necessary to adduce compelling evidence to ‘demonstrate that suppliers of one type of slack wax could not switch their production to the production of another type of slack wax and market it in the short term without incurring any substantial[,] additional costs or risk in response to small and permanent changes in relative prices’.
102. In relation to that criterion, the General Court held, in paragraph 61 of the judgment under appeal, that Polwax had not addressed the question of possible supply side substitutability.
103. As the Commission pointed out, Polwax fails to specify how the General Court made an error of law when it stated that such general allegations concerning the nature of slack wax production did not amount to compelling
evidence of there being any supply side substitutability.
104. Finally, for the sake of completeness, although Polwax now maintains that the rejection of the request for an expert’s report prevented it from demonstrating that its assertions regarding demand
side and supply side substitutability were accurate, the fact remains that its request for an expert’s report did not in fact relate to substitutability or, more generally, to factual questions relating to the market definition.
105. It follows that the third part of the first ground of appeal should be rejected as being inadmissible and, in any event, unfounded.
III. Conclusion
106. Without prejudice to the remaining grounds of appeal, which are outside the scope of the present Opinion, I propose that the Court
dismiss Polwax’s first ground of appeal as
in part inadmissible and in part unfounded.
1      Original language: English.
2      Decision declaring a concentration compatible with the internal market and the functioning of the EEA Agreement (Case M.9014 – PKN Orlen/Grupa Lotos) (notified under document C(2020) 4651) (OJ 2021 C 196, p. 8). That decision was adopted under Article 8(2) of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (OJ 2004 L 24, p. 1).
3      That is, the raw material needed for the production of paraffin waxes and a by-product of the production of base oil from crude oil in refineries.
4      Judgment under appeal, paragraph 13.
5      The relevant passages of the judgment under appeal are cited in the assessment section of the present Opinion below (see points 62 to 65 and 70).
6      Judgment of 10 July 2008, Bertelsmann and Sony Corporation of America v Impala (C‑413/06 P, ‘the judgment in Bertelsmann and Sony’, EU:C:2008:392, paragraph 44).
7      The following judgments were not appealed: of 4 July 2006, easyJet v Commission (T‑177/04, ‘the judgment in easyJet’, EU:T:2006:187); of 13 May 2015, Niki Luftfahrt v Commission (T‑162/10, ‘the judgment in Niki Luftfahrt’, EU:T:2015:283); and of 20 October 2021, Polskie Linie Lotnicze ‘LOT’ v Commission (T‑240/18, EU:T:2021:723).
8      The case-law has been criticised in the past for repeatedly intermingling the standard of proof and the standard of review. See Vesterdorf, B.,
‘Standard of proof in merger cases: Reflections in the light of recent case law of the Community courts’, European Competition Journal, Vol. 1(1), 2005, pp. 3-33.
9      Judgment of 13 July 2023, Commission v CK Telecoms UK Investments (C‑376/20 P, ‘the judgment in CK Telecoms’, EU:C:2023:561, paragraph 75 and the case-law cited) (emphasis added).
10      Ibid., paragraph 125 and the case-law cited.
11      See judgment of 14 December 2005, General Electric v Commission (T‑210/01, EU:T:2005:456, paragraph 340) (not appealed).
12      The judgment in CK Telecoms, paragraph 82.
13      Ibid., paragraph 87. The ‘more likely than not’ standard is, in other words, the ‘balance of probabilities’ standard of proof required in order to establish the existence of an SIEC.
14      Judgment of 13 November 2024, Deutsche Telekom v Commission (T‑64/20, EU:T:2024:815, paragraph 192). See also judgment of 20 October 2021, Polskie Linie Lotnicze ‘LOT’ v Commission (T‑296/18, EU:T:2021:724, paragraph 107).
15      The judgment in CK Telecoms, paragraph 84.
16      See the General Court’s case-law on its Rules of Procedure: judgment of 27 January 2021, KPN v Commission (T‑691/18, EU:T:2021:43, paragraphs 59 and 60 and the case-law cited) (emphasis added) (not appealed).
17      Judgment of 8 December 2011, Chalkor v Commission (C‑386/10 P, EU:C:2011:815, paragraph 64) (emphasis added).
18      ‘Direct evidence’ is typically documents and oral and written statements. To my mind, for the present purposes, ‘circumstantial’, that is, ‘indirect’, evidence is analogous to ‘indicia’. ‘Circumstantial evidence’ is ‘evidence based on inference and not on personal knowledge or observation’. ‘Indicia’ are defined as ‘signs; indications [the purchase receipts are indicia of ownership]’, Black’s Law Dictionary, 12th ed., 2024. See also the judgment in Bertelsmann and Sony, paragraphs 127 to 129.
19      Judgment of 8 December 2011, Chalkor v Commission (C‑386/10 P, EU:C:2011:815, paragraph 65) (emphasis added).
20      Judgment of 19 September 2013 (C‑56/12 P, EU:C:2013:575, paragraphs 44 and 77).
21      Ibid., paragraph 73.
22      Commission Notice on the handling of complaints by the Commission under Articles 81 and 82 [EC] (OJ 2004 C 101, p. 65, point 69).
23      Judgment of 28 September 2023, Ryanair v Commission (C‑320/21 P, EU:C:2023:712, paragraph 72 and the case-law cited). See also judgment of 29 July 2024, Ryanair and Laudamotion v Commission (C‑591/21 P, EU:C:2024:635, paragraph 133): ‘as regards the [appellants’] claim that the General Court erred in law in stating … that they “adduced no specific and substantiated evidence to show that all or some of the aid measures in question are intended to cover the same eligible costs as those included in the damage which the measure at issue seeks to remedy”, thus systematically placing the burden of proof on the appellants, it should be observed that it is in principle for the person who alleges facts in support of a claim or argument to provide proof of their reality’.
24      Order of the President of the Court of 25 January 2008, Provincia di Ascoli Piceno and Comune di Monte Urano v Apache Footwear and Others (C‑464/07 P(I), EU:C:2008:49, paragraph 9 and the case-law cited).
25      Judgments of 14 June 2018, Lubrizol France v Council (C‑223/17 P, EU:C:2018:442, paragraph 39), and of 7 May 2020, BTB Holding Investments and Duferco Participations Holding v Commission (C‑148/19 P, EU:C:2020:354, paragraph 72): ‘a manifest error may be established by evidence which renders implausible the Commission’s assessment of the facts in its decision. By contrast, a plea alleging a manifest error must be rejected if, despite the evidence adduced by the applicants, the contested assessment does not appear to be vitiated by any such error’. See also the case-law of the General Court:
judgments of 27 February 2013, Nitrogénművek Vegyipari v Commission (T‑387/11, EU:T:2013:98, paragraph 25), and of 12 July 2018, Austria v Commission (T‑356/15, EU:T:2018:439, paragraph 170) (appeal dismissed). That approach has been transposed to the
field of banking union; see, in that regard, judgment of 1 June 2022, Algebris (UK) and Anchorage Capital Group v Commission (T‑570/17, EU:T:2022:314, paragraphs 102 to 109). See Lenaerts, K., Gutman, K. and Nowak, J.T., EU Procedural Law, 2nd ed., Oxford University Press, Oxford, 2023, p. 401, footnote 769.
26      Judgment of 18 May 2022, Wieland-Werke v Commission (T‑251/19, EU:T:2022:296, paragraphs 165, 611 to 618) (not appealed). See Castillo de la Torre, F., Predicting the future: Evidential basis for prospective assessments in EU Merger Control, in Prete, L. and Rezki, L. (eds.), ‘Judging & (Re) Thinking European Union Law. Liber Amicorum in Honour of Nils Wahl’, Springer, 2025, p.16, forthcoming; available at <http://dx.doi.org/10.2139/ssrn.5050949>.
27      This is the stricter standard applicable in criminal and quasi-criminal proceedings and means that the Court of Justice may, after examining the evidence, entertain no reasonable doubt as to the facts constituting the offence at issue.
28      This is the less strict test applied in civil matters which means that the party must persuade the court concerned that the act alleged is more probable than improbable.
29      The judgment in CK Telecoms, paragraphs 75 and 77 and the case-law cited.
30      Form CO is a form setting out the information that must be submitted to the Commission in the context of a notification of a proposed merger under Regulation No 139/2004.
31      Commission Regulation of 7 April 2004 implementing Regulation No 139/2004 (OJ 2004 L 133, p. 1).
32      The judgment in CK Telecoms, paragraphs 60 and 77 and the case-law cited.
33      See, to that effect, the judgment in Niki Luftfahrt, paragraphs 174 to 176 and 187.
34      The judgment in CK Telecoms, paragraph 82.
35      See, inter alia, Articles 11 and 13 of Regulation No 139/2004.
36      Meaning that
contrary to the Commission’s conclusion (that it is more likely than not that the merger would significantly impede effective competition),  the applicant demonstrates that it can no longer be found that it is more likely than not that the merger would significantly impede effective competition (and vice
versa where the Commission concluded that the merger would not  significantly impede effective competition).
37      Hirsbrunner, S. and von Köckritz, C., Rebalancing EC Merger Control: The ECJ’s judgment in Case C‑413/06 P (Bertelsmann and Sony), Global Competition Policy, 2008, p. 17.
38      Bengtsson, C., Carpi, J.M. and Subočs, A., ‘The Substantive Assessment of Mergers’, in Jones, C. and Weinert, L. (eds.), EU Competition Law, Vol. II, Edward Elgar Publishing, Cheltenham, 2021, paragraph 4.74 et seq.
39      See points 20 and 23 of the present Opinion.
40      The judgment in easyJet, paragraph 64.
41      The judgment in easyJet, paragraph 65.
42      The judgment in easyJet, paragraph 66.
43      Judgment of 27 January 2021, KPN v Commission (T‑691/18, EU:T:2021:43, paragraph 60 and the case-law cited).
44      easyJet asserted that the Commission
incorrectly confined its analysis to the effects on competition in markets on which the activities of the merging parties overlapped either directly or indirectly.
45      The judgment in easyJet, paragraphs 66 and 67.
46      The General Court noted that those few figures which easyJet did put forward were not sufficient to substantiate its argument in respect of markets which did not overlap, since it failed to identify such markets.
47      In the judgment in easyJet, the General Court concluded that it could not rule on the merits of the plea, because the applicant had failed ‘to identify [the non-overlapping markets] clearly’ (paragraph 68).
48      The judgment in easyJet, paragraphs 71 and 73.
49      The judgment in easyJet, paragraph 66 (cited in the judgment in Niki Luftfahrt, paragraph 175).
50      See, to that effect, the judgment in Niki Luftfahrt, paragraphs 120 to 123 and 176.
51      In view of the wording of the French-language version of the judgment under appeal and taking into account the use of the term ‘wiarygodne przesłanki’ to translate ‘indices sérieux’ into Polish in the two judgments in easyJet and Niki Luftfahrt, as well as in paragraph 45 of the judgment under appeal, it appears that that is also the correct term which ought to have been used in paragraph 59 of the Polish-language version of the judgment under appeal.
52      It may be pointed out that Polwax’s submissions before the General Court and the Court of Justice are unclear as to whether or not, in its view, heavy-grade slack wax and bright stock slack wax belonged to the same relevant market. However, as the Commission pointed out, although, before the General Court, Polwax essentially distinguished only between light-, medium- and heavy-grade slack wax, or even only between light- and heavy-grade slack wax (see application, paragraph 40), the position it expresses could also indicate that it regarded heavy-grade slack wax and Bright Stock slack wax as constituting a single market (see reply, paragraph 120). In any event, any argument seeking to demonstrate, at the stage of the appeal,
that there was such a distinction, or even to suggest that Bright Stock slack wax constituted a distinct market/segment, would be inadmissible in so far as it would call into question the General Court’s findings of fact (paragraphs 56 to 61 of the judgment under appeal).
53      The judgment under appeal refers here to the judgment in
easyJet, paragraphs 65 and 66, and to the judgment in Niki Luftfahrt, paragraphs 174 and 175, which uses ‘serious indicia’ and not ‘compelling indications’.
54      OJ 1997 C 372, p. 5; ‘the Notice on the definition of the relevant market’.
55      The General Court refers, to that effect, to paragraphs 15 to 20 of the Notice on the definition of the relevant market.
56      See the judgment in easyJet, paragraph 65.
57      The objective of EU merger control is to examine proposed mergers and acquisitions in order to prevent harmful effects on competition. Therefore, Regulation No 139/2004 prohibits mergers and acquisitions which would significantly impede effective competition in the internal market or in a substantial part of it.
58      The judgments in easyJet, paragraphs 65 and 66, and Niki Luftfahrt, paragraphs 174 and 175.
59      See, to that effect, the judgment in easyJet, paragraph 65.
60      As the General Court held in paragraphs 57 to 61 of the judgment under appeal.
61      The judgment in easyJet, paragraph 65.
62      The Commission refers to paragraphs 11, 13 and 14 of the appeal.
63      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).
64      The judgment in easyJet, paragraph 66.
65      See points 60 to 70 of the present Opinion.
66      See, by analogy, judgment of 2 March 1994, Hilti v Commission (C‑53/92 P, EU:C:1994:77, paragraph 38). See points 39 to 49 of the present Opinion.
67      See paragraphs 56, 59 and 65 to 69 of the judgment under appeal. Such compelling indications include indicia of the absence of substitutability of the products from the customer’s point of view.
68      Judgment of 23 January 2018, F. Hoffmann-La Roche and Others (C‑179/16, EU:C:2018:25,
paragraphs 48 to 67).
69      See point 70 of the present Opinion.
70      See judgment of 10 May 2007, SGL Carbon v Commission (C‑328/05 P, EU:C:2007:277, paragraph 41 and the case-law cited).