62020TJ0312
JUDGMENT OF THE GENERAL COURT (Fourth Chamber, Extended Composition)
17 May 2023 (
*1
)
(Competition – Concentrations – German electricity market – Decision declaring the concentration compatible with the internal market – Action for annulment – Locus Standi – Admissibility – Duty to state reasons – Concept of ‘single concentration’ – Right to effective judicial protection – Right to be heard – Definition of the market – Period of analysis – Analysis of market power – Decisive influence – Manifest errors of assessment – Duty of care)
In Case T‑312/20,
EVH GmbH, established in Halle-on-Saale (Germany), represented by I. Zenke and T. Heymann, lawyers,
applicant,
v
European Commission, represented by G. Meessen and I. Zaloguin, acting as Agents, assisted by T. Funke and A. Dlouhy, lawyers,
defendant,
supported by
Federal Republic of Germany, represented by J. Möller and S. Costanzo, acting as Agents,
by
E.ON SE, established in Essen (Germany), represented by C. Grave, C. Barth and D.‑J. dos Santos Goncalves, lawyers,
and by
RWE AG, established in Essen, represented by U. Scholz, J. Siegmund and J. Ziebarth, lawyers,
interveners,
THE GENERAL COURT (Fourth Chamber, Extended Composition),
composed, at the time of the deliberations, of S. Gervasoni, President, L. Madise, P. Nihoul, R. Frendo and J. Martín y Pérez de Nanclares (Rapporteur), Judges,
Registrar: S. Jund, Administrator,
having regard to the written part of the procedure,
further to the hearing on 15 and 16 June 2022,
gives the following
Judgment
1
By its action under Article 263 TFEU, the applicant, EVH GmbH, seeks the annulment of Commission Decision C(2019) 1711 final of 26 February 2019 declaring a concentration compatible with the internal market and the EEA agreement (Case M.8871 – RWE/E.ON Assets) (OJ 2020 C 111, p. 1; ‘the contested decision’).
I. Background to the dispute
A. Undertakings in question
2
RWE AG is a company incorporated under German law which, when the proposed concentration was notified, was active across the whole supply chain of energy provision, including in the areas of energy generation, wholesale supply, transmission, distribution and retail supply, as well as the area of energy services to customers (such as metering and e-mobility, etc.) (‘the electricity market’). RWE and its subsidiaries, including Innogy SE, operate in several European States, namely Belgium, the Czech Republic, Germany, France, Italy, Luxembourg, Hungary, the Netherlands, Poland, Romania, Slovakia and the United Kingdom.
3
E.ON SE is a company incorporated under German law which, when the proposed concentration was notified, operated across the whole electricity supply chain, whether this involved the generation, wholesale, distribution or retail of electricity. E.ON owns and operates electricity generation assets in several European States, including Germany, France, Italy, Poland and the United Kingdom.
4
The applicant is an undertaking incorporated under German law which generates electricity both from conventional energy sources (‘conventional electricity’), by means of its fleet of power plants, and from renewable energy sources (‘renewable electricity’), by means of its wind and solar farms. Its generation assets are located in Germany.
B. Context of the concentration
5
The concentration at issue in the present case is part of a complex asset swap between RWE and E.ON, which was announced on 11 and 12 March 2018 by the two undertakings concerned (‘the overall transaction’). Accordingly, by means of the first operation, that is to say the concentration at issue in the present case, RWE wishes to acquire sole or joint control over certain generation assets of E.ON. The second concentration operation consists in the acquisition by E.ON of the sole control over the distribution and retail business as well as some production assets of Innogy, which is controlled by RWE. As for the third concentration operation, it concerns the acquisition of 16.67% of E.ON’s shares by RWE.
6
On 17 April 2018, the applicant sent a letter to the European Commission, by which it notified that institution that it wished to participate in the procedure relating to the first and second concentration operations and, consequently, to receive the documents relating thereto.
7
On 26 June 2018, a meeting was held between the applicant’s representative and the Commission, during which that representative expressed to the Commission his client’s concerns regarding the first and second concentration operations and the applicant’s wish to participate in the procedures relating thereto.
8
On 28 August 2018, an individual meeting was held between the Commission and the applicant, at which the applicant submitted its comments on the first and second concentration operations.
9
The second concentration operation was notified to the Commission on 31 January 2019. As regards that second operation, the Commission adopted Decision C(2019) 6530 final of 17 September 2019 declaring a concentration compatible with the internal market and the EEA agreement (Case M.8870 – E.ON/Innogy) (OJ 2020 C 379, p. 16, ‘concentration M.8870’).
10
The third concentration operation was notified to the Bundeskartellamt (Federal Competition Authority, Germany), which authorised it by decision of 26 February 2019 (Case B8-28/19, ‘concentration B8-28/19’).
C. Administrative procedure
11
On 22 January 2019, the Commission received notification of a proposed concentration 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), by which RWE sought to acquire sole or joint control of certain generation assets of E.ON, within the meaning of Article 3(1)(b) thereof.
12
On 31 January 2019, the Commission published in the Official Journal of the European Union the prior notification of that concentration (Case M.8871 – RWE/E.ON Assets) (OJ 2019 C 38, p. 22; ‘concentration M.8871’), pursuant to Article 4(3) of Regulation No 139/2004.
13
The E.ON generation assets which form part of concentration M.8871 include, first, the following entities and shares in entities operating in the renewable energy sector:
–
E.ON Climate & Renewables GmbH (Germany);
–
Amrum Offshore West GmbH (Germany);
–
E.ON Climate & Renewables UK Limited (United Kingdom);
–
E.ON Climate & Renewables North America, LLC (United States);
–
E.ON Wind Sweden AB (Sweden);
–
E.ON Climate & Renewables Italia Srl (Italy);
–
Arkona (Germany), which came online in early 2019 and the production of which was not included in E.ON’s 2017 figure;
–
Delta Nordsee (Germany), a site under construction when the concentration was examined.
14
In addition, RWE will acquire 60.08% of the shares in Rampion NewCo (United Kingdom), which holds 50% of the shares in Rampion Offshore Wind Limited (United Kingdom), thereby acquiring an indirect stake of 30.1% in Rampion Offshore Wind.
15
The E.ON generation assets which form part of concentration M.8871 include, second, interests and associated drawing rights in nuclear assets, namely:
–
a 12.5% minority shareholding in Kernkraftwerke Lippe-Ems GmbH (Germany);
–
a 25% minority shareholding in Kernkraftwerk Gundremmingen GmbH (Germany), together with a 25% share in the nuclear fuel and waste, as well as real estate assets related to that nuclear power plant.
16
In the context of its examination of concentration M.8871, the Commission conducted a market test and therefore sent to certain undertakings, including the applicant, a questionnaire to which the applicant responded on 30 January 2019.
17
By letter of 31 January 2019, the applicant reiterated its wish to participate in the procedure conducted by the Commission and, on that occasion, to be heard by the Commission if it decided to initiate the detailed examination phase, in accordance with Article 6(1)(c) of Regulation No 139/2004.
D. Contested decision
18
On 26 February 2019, the Commission adopted the contested decision. Concentration M.8871 was declared compatible with the internal market during the examination phase provided for by Article 6(1)(b) of Regulation No 139/2004 and by Article 57 of the European Economic Area (EEA) Agreement.
19
In essence, the Commission analysed the effects of concentration M.8871 primarily on the market for the generation and wholesale supply of electricity in Germany. In its analysis, the Commission took into account, inter alia, the effects of concentration M.8870 and those of concentration B8-28/19. It also took into consideration the risk related to capacity withholding strategies and the ‘Residual Supply Index’ (‘the RSI’) analyses provided by RWE and by third parties. The Commission reached the conclusion that the increment in RWE’s market share attributable to the E.ON assets was limited and temporary, with the result that concentration M.8871 did not raise serious doubts as to its compatibility with the internal market. The Commission considered that that conclusion was not called into question by the other elements put forward by third parties. Lastly, the Commission also analysed the effects of concentration M.8871 on the electricity transmission market in the light of RWE’s relationship with Amprion GmbH, one of the four German transmission system operators.
II. Forms of order sought
20
The applicant claims that the Court should:
–
annul the contested decision;
–
order the Commission to pay the costs, including the legal expenses and travel costs incurred by the applicant in the proceedings.
21
The Commission, supported by the Federal Republic of Germany, E.ON and RWE, contends that the Court should:
–
dismiss the action;
–
order the applicant to pay the costs.
III. Law
22
In support of its action, the applicant puts forward, in essence, six pleas in law, alleging (i) erroneous division of the analysis of the overall transaction into separate parts, (ii) breach of the duty to state reasons, (iii) infringement of its right to be heard, (iv) infringement of its right to effective judicial protection, (v) manifest errors of assessment and, (vi) breach of the duty of care.
23
It is first necessary to examine the plea of inadmissibility raised by RWE.
A. Admissibility
24
In its statement in intervention, RWE pleads that the action is inadmissible on the ground of the applicant’s lack of standing to bring proceedings. In that regard, RWE argues, in essence, that the applicant does not have an individual interest in seeking the annulment of the contested decision.
25
First, RWE submits that, apart from a general interest as a market player, the applicant fails to demonstrate what specifically distinguishes it individually and differentiates it from other operators and competitors. Secondly, the German electricity market cannot be regarded as comprising a limited number of producers.
26
The applicant responds that, from a procedural point of view, RWE cannot, as an intervener, raise a plea of inadmissibility, since it must confine itself to the pleas in law put forward by the Commission, in support of which RWE intervened. From a substantive point of view, the applicant contests RWE’s arguments.
27
In that regard, it must be recalled that, in the form of order sought, the Commission has confined itself to seeking the dismissal of the action on the substance and has not challenged the applicant’s standing to bring proceedings.
28
Under the fourth paragraph of Article 40 of the Statute of the Court of Justice of the European Union, which is applicable to proceedings before the General Court by virtue of Article 53 of the Statute, an application to intervene is to be limited to supporting the form of order sought by one of the parties to the proceedings. Moreover, under Article 142(3) of the Rules of Procedure of the General Court, the intervener must accept the case as he or she finds it at the time of the intervention. It follows that RWE has no standing to raise a plea of inadmissibility and that the EU judicature is therefore not required, in principle, to examine the pleas of inadmissibility put forward by it. However, according to settled case-law, the criterion which makes the admissibility of an action brought by a natural or legal person against a decision addressed to another person subject to the conditions governing admissibility laid down in the fourth paragraph of Article 263 TFEU raises an absolute bar to proceeding which the European Union Courts may consider at any time, even of their own motion (see, to that effect, judgment of 27 February 2014, Stichting Woonlinie and Others v Commission, C‑133/12 P, EU:C:2014:105, paragraph 32 and the case-law cited). It is therefore for the General Court to ascertain of its own motion whether the applicant has standing to bring proceedings against the contested decision.
29
In accordance with the fourth paragraph of Article 263 TFEU, a natural or legal person may institute proceedings against a decision addressed to another person only if the decision is of direct and individual concern to him or her.
30
Accordingly, it is necessary to examine whether the contested decision is of direct and individual concern to the applicant.
31
In the first place, as regards whether the applicant is directly concerned, it must be observed that the contested decision, by allowing concentration M.8871 to be put into effect immediately, was capable of bringing about an immediate change in the state of the relevant markets. As the intention of the parties to concentration M.8871 to bring about such a change was not in doubt, the undertakings engaged in the relevant market or markets could, on the date of the contested decision, be certain of an immediate or imminent change in the state of the market (see, to that effect, judgment of 4 July 2006, easyJet v Commission, T‑177/04, EU:T:2006:187, paragraph 32 and the case-law cited). It follows that the applicant, active on that market, is directly concerned by the contested decision.
32
In the second place, as regards whether the applicant is individually concerned, it should be recalled that, according to well-established case-law, persons other than those to whom a decision is addressed may claim to be individually concerned only if that decision affects them by virtue of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and thus distinguishes them individually just as in the case of the person to whom the decision is addressed (see judgment of 4 July 2006, easyJet v Commission, T‑177/04, EU:T:2006:187, paragraph 34 and the case-law cited).
33
Whether a third party is individually concerned by a decision finding a concentration to be compatible with the internal market depends, on the one hand, on that third party’s participation in the administrative procedure and, on the other, on the effect on its market position. Whilst mere participation in the procedure is not sufficient to establish that the decision is of individual concern to the applicant, particularly in the field of merger control, the careful examination of which requires regular contact with numerous undertakings, active participation in the administrative procedure is a factor regularly taken into account in the case-law on competition, including in the more specific area of merger control, to establish, in conjunction with other specific circumstances, the admissibility of the action (see judgment of 4 July 2006, easyJet v Commission, T‑177/04, EU:T:2006:187, paragraph 35 and the case-law cited).
34
It is in the light of the case-law referred to in paragraph 33 above that the Court adopted a measure of organisation of procedure inviting the parties to submit, at the hearing, their observations on the absolute bar to proceeding which it was considering raising of its own motion.
35
In the first place, as regards the applicant’s participation in the administrative procedure relating to concentration M.8871, it must be stated that the applicant submitted written observations to the Commission by letter of 17 April 2018 and was subsequently heard at an individual meeting held on 28 August 2018. It is also apparent from the file that the applicant sent a letter on 18 October 2018, supplementing the comments that it had submitted at the meeting of 28 August 2018.
36
By letter of 4 December 2018, the applicant forwarded to the Commission a study prepared at its request by Oxera Consulting LLP, an economic consultancy firm, entitled ‘Transaktion zwischen E.ON und RWE: Auswirkungen auf Erstabsatz- und Regelenergiemarkt’ (Transaction between E.ON and RWE: Impacts on the primary sales and balancing markets) of 29 November 2018 (‘the Oxera study’), which it supplemented, by email of 25 January 2019, with the database used for the preparation of that study.
37
Finally, on 24 January 2019, the applicant received the Commission’s market test questionnaire, to which it responded on 30 January 2019.
38
It follows from the foregoing that, having submitted comments to the Commission on concentration M.8871 – by mail, at an individual meeting, by providing its own market impact study relating to the concentration, namely the Oxera study, and by responding to the market test – the applicant actively participated in the procedure, which, moreover, is not disputed by the other parties.
39
In the second place, as regards the individual effect on the applicant’s market position, it is clear from the applicant’s pleadings that, as a municipal electricity authority, it is active at all value added stages, including in the generation of electricity, and is therefore a competitor of the merging parties. That description of the applicant’s activity was not contested by the other parties.
40
However, RWE takes the view, in essence, that the applicant’s status as a competitor is merely an objective status which does not differentiate it from any other competitor that is currently or potentially in an identical position. In that regard, RWE argues, inter alia, that the applicant does not establish any difference between it and other competitors when it analyses the effects of the concentration on its competitive position.
41
Moreover, in response to questions put by the Court at the hearing, the parties acknowledged that it was important to determine not whether the applicant was a main competitor of RWE and E.ON, but whether it had demonstrated that it was affected by the contested decision owing to special circumstances.
42
In that regard, it should be noted that the applicant argued that its competitive position would be adversely affected by concentration M.8871 in so far as, by altering the structure of the German electricity market, that concentration would reduce the value of the significant investments made by the applicant and calculated over the long term, in the light of the existence of a decentralised and increasingly volatile electricity market.
43
It is true that such an argument can be put forward by competitors other than the applicant which are in a similar situation.
44
However, the fact remains that that argument relates to the applicant’s situation and that the applicant also expressed, both during the administrative procedure and during the judicial proceedings, its serious concerns about the concentration, stating on several occasions that its competitive position would be affected by that concentration.
45
In that regard, the applicant informed the Court of the various power plant modernisation and construction projects which would be affected by concentration M.8871. Those plans, set out in detail in the application, covered the period until 2035 and were based on the assumption that concentration M.8871 would not take place. In the applicant’s view, certain investments in new capacity have fallen in value on account of the increasing market concentration and RWE’s increased room for manoeuvre following concentration M.8871.
46
Accordingly, in the light of the specific circumstances of the present case, in particular the applicant’s significant involvement in the administrative procedure, its status as competitor of the merging parties and the potential impact on the value of certain investments specifically identified by the applicant following the concentration, the applicant must be regarded as individually concerned by the contested decision.
47
Since the applicant is directly and individually concerned by the contested decision, it must be concluded that the action is admissible.
B. Substance
1.
Preliminary considerations
48
It should be borne in mind that, when the Commission analyses a concentration within the meaning of Article 2 of Regulation No 139/2004, it carries out a first phase of investigation in order to establish whether or not the concentration raises serious doubts as to its compatibility with the internal market under Article 6(1) thereof. If the Commission concludes that the concentration under examination raises such doubts, the Commission opens a second phase of investigation at the end of which it must decide whether or not the concentration significantly impedes competition on the internal market for the purposes of Article 8 of Regulation No 139/2004 (judgment of 11 December 2013, Cisco Systems and Messagenet v Commission, T‑79/12, EU:T:2013:635, paragraph 45).
49
Whilst it is true that, unlike Article 8 of Regulation No 139/2004, Article 6 of that regulation refers to the existence or absence of serious doubts as to the compatibility of the notified concentration with the internal market, the fact remains that the Commission must rely in both cases on the same assessment criteria, as laid down in Article 2 of that regulation. Likewise, the standard of proof is no higher for decisions adopted under Article 6 of Regulation No 139/2004 than those adopted under Article 8 of that regulation. Whether the Commission authorises, as in the present case, a concentration at the end of the first stage or after a second stage of examination, the standard of proof is identical. Whether the Commission makes a decision on the basis of Article 6 or pursuant to Article 8 of Regulation No 139/2004 is thus dependent on the period in which the evidence becomes available to it but does not alter the standard of that evidence (judgment of 11 December 2013, Cisco Systems and Messagenet v Commission, T‑79/12, EU:T:2013:635, paragraph 46).
50
As regards the standard of proof, it is apparent from the judgment of 10 July 2008, Bertelsmann and Sony Corporation of America v Impala (C‑413/06 P, EU:C:2008:392, paragraphs 50 to 53), that the Commission is, in principle, required to adopt a position, either in the sense of approving or of prohibiting the concentration notified to it, based on its assessment of the economic outcome attributable to the concentration which is the most likely to ensue. An assessment of probabilities is therefore involved, and not an obligation on the Commission to show beyond any reasonable doubt that a concentration does not give rise to any competition concerns (judgment of 11 December 2013, Cisco Systems and Messagenet v Commission, T‑79/12, EU:T:2013:635, paragraph 47).
51
In this respect, it must be recalled that Regulation No 139/2004 is not based on a presumption that concentrations are incompatible with the internal market (judgment of 11 December 2013, Cisco Systems and Messagenet v Commission, T‑79/12, EU:T:2013:635, paragraph 48). Regulation No 139/2004 lays down a symmetrical evidential requirement for either approving or prohibiting a concentration and, therefore, does not create any presumption of legality or illeglity of concentrations.
52
It is true that Article 6(1)(c) of Regulation No 139/2004 does not confer on the Commission any discretion as regards the initiation of an additional, second phase of investigation where it encounters serious doubts with respect to the compatibility of a concentration with the internal market. Indeed, where the Commission has serious doubts as to the compatibility with the internal market of a concentration, it is obliged to initiate a second phase of investigation. However, even if the notion of ‘serious doubts’ is an objective one, the fact remains that, before adopting a decision under Article 6(1)(c) of Regulation No 139/2004, the Commission must carry out complex economic assessments and that it enjoys, for that purpose, a certain margin of discretion of which the Court must take account (judgments of 3 April 2003, Royal Philips Electronics v Commission, T‑119/02, EU:T:2003:101, paragraph 77, and of 11 December 2013, Cisco Systems and Messagenet v Commission, T‑79/12, EU:T:2013:635, paragraph 49).
53
Consequently, irrespective of whether decisions are adopted under Article 6 or on the basis of Article 8 of Regulation No 139/2004, the case-law provides for an identical standard of judicial review. In both cases, the review by the European Union judicature of complex economic assessments made by the Commission is limited to checking compliance with the rules governing procedure and the statement of reasons, the substantive accuracy of the facts as well as the absence of manifest errors of assessment or misuse of powers. In that respect, it should be borne in mind that the European Union judicature must not only ascertain whether the evidence relied on is factually accurate, reliable and consistent but also whether that evidence contains all the information which must be taken into account in order to assess a complex situation and whether it is capable of substantiating the conclusions drawn from it (judgment of 11 December 2013, Cisco Systems and Messagenet v Commission, T‑79/12, EU:T:2013:635, paragraph 50).
54
It is in the light of those considerations that the pleas raised by the applicant must be examined.
2.
The first plea in law, alleging erroneous division of the analysis of the overall transaction into separate parts
55
The applicant takes the view, in essence, that the separation of the analysis of concentration M.8870 from concentration M.8871 is purely formal. In its view, the Commission should have assessed the two concentrations together, since they were economically dependent on each other, were agreed upon at the same time and were also legally connected.
56
The applicant concludes that the overall transaction constitutes a single concentration within the meaning of Article 3 of Regulation No 139/2004, since, according to recital 20 thereof, it contains transactions that are closely connected in that they are linked by condition.
57
The Commission, supported by the Federal Republic of Germany, E.ON and RWE, contests the applicant’s arguments.
(a)
The scope of the first plea
58
It is apparent from the first plea, as set out in the application, that the criticism levelled at the Commission is that it did not examine concentrations M.8870 and M.8871 as a whole. However, in its observations on RWE’s statement in intervention, the applicant states that the overall transaction is unitary in nature and that the Commission is competent even where an undertaking, in this case RWE, is granted, in return for the transfer of subsidiaries to another company, namely Innogy to E.ON, a minority shareholding which does not confer any right of control in the transferee undertaking, namely the 16.67% in E.ON.
59
When asked at the hearing about the scope of its plea, the applicant stated that it regarded concentrations M.8870, M.8871 and B8-28/19 as constituting a single concentration. While acknowledging that those three concentrations were reviewed under separate procedures, namely a procedure governed by German law, in the case of concentration B8-28/19, and two separate procedures governed by EU law, in the cases of concentrations M.8870 and M.8871, the applicant contests the choice that was made. In particular, it submits that the 16.67% shareholding in E.ON acquired by RWE is not a minority shareholding and does not constitute an insignificant financial holding. To the contrary, the applicant argues that that shareholding enables RWE to exercise decisive influence over E.ON. It is in the light of that consideration that it is necessary to assess whether the overall transaction constituted a single concentration within the meaning of Article 3 of Regulation No 139/2004.
60
It is apparent from the clarifications provided by the applicant at the hearing that the first plea seeks to criticise the Commission for having failed, on the one hand, to review concentration B8-28/19 and, on the other hand, to consider concentrations M.8870, M.8871 and B8-28/19 as components of a single concentration.
(b)
The review of concentration B8-28/19
61
It must be observed that, in paragraph 74 of the contested decision, the Commission recalled that, in assessing the competitive effects of any acquisition of control, the Commission must also take into account minority interests held by the acquirer in any related companies. In accordance with that rule, the Commission examined whether the structural link created by RWE’s acquisition of a minority shareholding in E.ON, the subject matter of concentration B8-28/19, could, on the one hand, weaken RWE’s and E.ON’s incentives to compete in the market for the generation and wholesale supply of electricity in Germany and, on the other hand, give RWE or E.ON the ability and incentive to foreclose competitors either upstream in the generation or wholesale of electricity or downstream in the retail supply of electricity in Germany, or even both (paragraph 75 of the contested decision).
62
In other words, the Commission took into account the minority shareholding in E.ON acquired by RWE when assessing the effects of concentration M.8871 but did not examine the compatibility of concentration B8-28/19 with the internal market under Regulation No 139/2004.
63
It was the Federal Competition Authority which examined the compatibility of concentration B8-28/19 under the rules laid down by German national law.
64
In that regard, the applicant argues that the Commission should have examined concentration B8-28/19, since the minority shareholding in E.ON acquired by RWE enabled RWE to exercise decisive influence over E.ON.
65
It should be recalled that Article 3(1) and (2) of Regulation No 139/2004 provides:
‘1.   A concentration shall be deemed to arise where a change of control on a lasting basis results from:
(a)
the merger of two or more previously independent undertakings or parts of undertakings, or
(b)
the acquisition, by one or more persons already controlling at least one undertaking, or by one or more undertakings, whether by purchase of securities or assets, by contract or by any other means, of direct or indirect control of the whole or parts of one or more other undertakings.
2.   Control shall be constituted by rights, contracts or any other means which, either separately or in combination and having regard to the considerations of fact or law involved, confer the possibility of exercising decisive influence on an undertaking, in particular by:
(a)
ownership or the right to use all or part of the assets of an undertaking;
(b)
rights or contracts which confer decisive influence on the composition, voting or decisions of the organs of an undertaking.’
66
Accordingly, in so far as Article 3(2) of Regulation No 139/2004 concerns the decisive influence acquired over the activity of an undertaking for the purposes of a finding of the existence of control capable of constituting a concentration, it must be inferred from the applicant’s complaint that the latter is arguing that concentration B8-28/19 constitutes a concentration within the meaning of Article 3 of Regulation No 139/2004 and that, in those circumstances, the Commission should have examined it.
67
However, the subject matter of the present action concerns formally the Commission’s decision of 26 February 2019 declaring concentration M.8871 compatible with the internal market. In that regard, even if the contested decision contains matters relating to the minority shareholding in E.ON acquired by RWE which are capable of showing why the Commission did not regard concentration B8-28/19 as being a concentration within the meaning of Article 3 of Regulation No 139/2004, it must be noted that that decision does not explicitly determine that issue and, by extension, whether the Commission has competence to determine the compatibility of that concentration with the internal market. Accordingly, the applicant cannot rely on the plea alleging erroneous division of the overall transaction into separate parts in order to ask the Court to rule on a question of competence which has not been considered by the Commission in the decision which is actually challenged before the Court.
68
In that regard, it must also be observed that, if the applicant was of the opinion that concentration B8-28/19 may have an EU-level dimension, it was for the applicant to complain to the Commission in order to ask it to determine the case. In such a case, the Commission would have been required to take a decision on the very principle of its competence as supervising authority (see, to that effect, judgment of 25 September 2003, Schlüsselverlag J. S. Moser and Others v Commission, C‑170/02 P, EU:C:2003:501, paragraphs 27 to 30). Any decision adopted could thus have been subject to judicial review by means of an action for annulment under Article 263 TFEU. In the alternative, if the Commission had failed to respond, an action for failure to act could have been brought under the third paragraph of Article 265 TFEU.
69
In any event, the acquisition of a minority shareholding may give rise to control, as is apparent from paragraphs 57 and 59 of the Commission Consolidated Jurisdictional Notice under Council Regulation No 139/2004 (OJ 2008 C 95, p. 1 and corrigendum OJ 2009 C 43, p. 10; ‘the Consolidated Jurisdictional Notice’), only where specific rights are attached to that minority shareholding, bringing about de jure sole control, or where a minority shareholder obtains, due to extraordinary circumstances, sole control on a de facto basis.
70
In the present case, however, first, the applicant has not claimed that specific rights were attached to the minority shareholding acquired by RWE. In particular, the applicant did not argue that the acquired shares were preference shares to which were attached special rights giving RWE the possibility of determining E.ON’s business strategy, such as the power to appoint more than half of the members of the supervisory board or the administrative board, or that RWE has the right to manage the activities of E.ON and to determine its business policy on the basis of the organisational structure.
71
Second, as established in paragraphs 374, 375 and 383 below, the investor relationship agreement between RWE and E.ON limits to 16.67% the voting rights which can be exercised by RWE at shareholders’ meetings, irrespective of the turnout. Therefore, RWE cannot obtain a majority at an E.ON general meeting, even when a small number of shareholders attend. Moreover, as stated, in essence, in paragraph 388 below, the applicant has not put forward any evidence to support the plausibility of the existence of any coordination between [confidential] and RWE at E.ON general meetings which might provide RWE with a stable majority at those meetings. Consequently, RWE cannot be regarded as having acquired de facto sole control over E.ON.
72
Accordingly, the applicant is not justified in maintaining that concentration B8-28/19 is a concentration within the meaning of Article 3 of Regulation No 139/2004.
(c)
The existence of a single concentration
73
With the parties disagreeing, both in their written pleadings and at the hearing, over the very concept of a ‘single concentration’, it is necessary to define that concept before ascertaining whether it is applicable to the overall transaction.
(1) The concept of ‘single concentration’
74
It should be pointed out that it is true that the concept of ‘single concentration’ appears only in recital 20, and not in the articles of Regulation No 139/2004 (see, to that effect, judgment of 26 October 2017, Marine Harvest v Commission, T‑704/14, EU:T:2017:753, paragraph 91).
75
Recital 20 of Regulation No 139/2004 states that:
‘It is expedient to define the concept of concentration in such a manner as to cover operations bringing about a lasting change in the control of the undertakings concerned and therefore in the structure of the market. It is therefore appropriate to include, within the scope of this Regulation, all joint ventures performing on a lasting basis all the functions of an autonomous economic entity. It is moreover appropriate to treat as a single concentration transactions that are closely connected in that they are linked by condition or take the form of a series of transactions in securities taking place within a reasonably short period of time.’
76
Nevertheless, on the one hand, that recital does not contain an exhaustive definition of the circumstances in which two or more transactions constitute a single concentration. On the other hand, it should be noted that whilst a recital of a regulation may cast light on the interpretation to be given to a legal rule, it cannot in itself constitute such a rule. The preamble to an EU act has no binding legal force (see judgment of 26 October 2017, Marine Harvest v Commission, T‑704/14, EU:T:2017:753, paragraph 150, and the case-law cited).
77
Thus, according to the case-law, the preamble to an EU act cannot be relied on either as a ground for derogating from the actual provisions of the act in question or for interpreting those provisions in a manner clearly contrary to their wording (see judgment of 24 November 2005, Deutsches Milch-Kontor, C‑136/04, EU:C:2005:716, paragraph 32 and the case-law cited). Consequently, although recital 20 of Regulation No 139/2004 may serve as a basis for interpreting the provisions of that regulation, it is not possible reasonably to infer from the wording of that recital alone an interpretation of the concept of ‘single concentration’ which is not consistent with those provisions (judgment of 4 March 2020, Marine Harvest v Commission, C‑10/18 P, EU:C:2020:149, paragraph 44).
78
Accordingly, the concept of ‘single concentration’, which appears in recital 20 of Regulation No 139/2004, must be interpreted in a manner which is compatible with the concept of ‘concentration’ defined in Article 3(1) of Regulation No 139/2004. In that regard, recital 20 cannot be interpreted in such a way as to extend the scope of Article 3(1) of Regulation No 139/2004.
79
In the light of the content of Article 3(1) of Regulation No 139/2004 recalled in paragraph 65 above, a single concentration must be regarded as a concentration consisting of two or more transactions that are closely connected, because they are linked by condition or take the form of a series of transactions in securities taking place within a reasonably short period of time, and which lead to a change of control on a lasting basis resulting from the merger of two or more previously independent undertakings or parts of undertakings or from the acquisition, by one or more persons already controlling at least one undertaking, or by one or more undertakings, of direct or indirect control of the whole or parts of one or more other undertakings.
80
In other words, two conditions must be met in order for two or more transactions to be regarded as constituting a single concentration within the meaning of recital 20 and Article 3(1)(b) of Regulation No 139/2004. First, the operations must be interdependent in such a way that none of them would be carried out without the others. Secondly, the result of those operations must consist in conferring on one or more undertakings direct or indirect economic control over the activities of one or more other undertakings (see, to that effect, judgment of 23 February 2006, Cementbouw Handel & Industrie v Commission, T‑282/02, EU:T:2006:64, paragraph 109).
81
In that regard, the applicant argues that recital 20 of Regulation No 139/2004 gives practical effect to the Commission’s intention, as expressed in its Green Paper on the Review of Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings (COM(2001) 745 final; ‘the Green Paper’), to treat, in a very general way, asset swaps as a single concentration in order to provide for a coherent assessment of the entire transaction.
82
However, first, it should be pointed out that a Green Paper is intended only to initiate a consultation process at EU level and cannot, therefore, create an obligation on the part of the Commission (see, to that effect, judgment of 26 October 2017, Marine Harvest v Commission, T‑704/14, EU:T:2017:753, paragraph 178).
83
Second, while it is true that, in recital 133 of the Green Paper, the Commission stated that provisions should be drafted to treat transactions consisting of asset swaps between two companies as equivalent to single transaction concentrations, the fact remains that that proposal was not taken up in Regulation No 139/2004. In particular, the amendment to Article 5 of Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings (OJ 1989 L 395, p. 1) relating to the calculation of turnover for the purpose of determining the Commission’s competence to deal with a concentration, as proposed by the Green Paper, was not made.
84
Accordingly, it is clear from the legislative background to Regulation No 139/2004 that the EU legislature made a deliberate decision not to include provisions based on recital 133 of the Green Paper. Recital 133 was not incorporated into the final version of Regulation No 139/2004, as adopted, and the only provision dealing with the concept of ‘single concentration’ is recital 20 of that regulation.
85
Therefore, even if the Commission was of the view, at the time of the publication of its Green Paper, that asset swaps such as those in the present case should be regarded as forming a single concentration, this has no bearing on the question of whether concentrations M.8870, M.8871 and B8-28/19 constitute a single concentration, since only Regulation No 139/2004 and the Consolidated Jurisdictional Notice are relevant in that regard.
86
In the light of the conditions referred to in paragraph 80 above, the concept of ‘single concentration’ cannot apply when independent undertakings gain control of different targets, as is the case in an asset swap.
(2) Application in the present case
(i) The condition relating to the interdependence of the transactions in question
87
The condition relating to the interdependence of the transactions in question has been clarified in paragraph 43 of the Consolidated Jurisdictional Notice.
88
In that regard, it should be recalled that it is clear from paragraphs 1 and 4 thereof that the Consolidated Jurisdictional Notice was adopted with a view to ensuring that the action taken by the Commission is transparent, foreseeable and consistent with legal certainty (judgment of 5 October 2020, HeidelbergCement and Schwenk Zement v Commission, T‑380/17, EU:T:2020:471, paragraph 132).
89
Paragraph 43 of the Consolidated Jurisdictional Notice provides:
‘The required conditionality implies that none of the transactions would take place without the others and they therefore constitute a single operation …. Such conditionality is normally demonstrated if the transactions are linked de jure, i.e. the agreements themselves are linked by mutual conditionality. If de facto conditionality can be satisfactorily demonstrated, it may also suffice for treating the transactions as a single concentration. This requires an economic assessment of whether each of the transactions necessarily depends on the conclusion of the others …. Further indications of the interdependence of several transactions may be the statements of the parties themselves or the simultaneous conclusion of the relevant agreements. A conclusion of de facto interconditionality of several transactions will be difficult to reach in the absence of their simultaneity. A pronounced lack of simultaneity of legally inter-conditional transactions may likewise put into doubt their true interdependence.’
90
In the present case, it is common ground that concentrations M.8870, M.8871 and B8-28/19 are part of a complex asset swap between RWE and E.ON and are legally linked to one other. This is also apparent from paragraph 3 of the contested decision.
91
Moreover, the contested decision states, in footnote 34, that ‘the agreements covering the transfer of the E.ON assets to RWE are conditional on the closing of the Innogy acquisition by E.ON, which thereby will either temporarily … or permanently acquire control over the reverse carve-out assets’. Similarly, paragraph 74 of the contested decision states, in essence, that the minority shareholding of 16.67% in E.ON acquired by RWE represents the exchange component of the consideration obtained by RWE for the transfer to E.ON of its distribution and retail business, as well as some generation assets, as currently operated by Innogy. It must be inferred from this that the transactions in question are linked de jure, that is to say that, by means of an agreement of a contractual nature, the various transactions in the asset swap are linked by mutual conditionality.
92
In any event, concentrations M.8870, M.8871 and B8-28/19 are linked by de facto conditionality.
93
In that regard, the criteria for recognising the existence of de facto conditionality, as contemplated in paragraph 43 of the Consolidated Jurisdictional Notice, namely the statements of the merging parties themselves and the simultaneous conclusion of the relevant agreements, are satisfied in the present case.
94
It follows that the overall transaction meets the condition relating to the interdependence of the transactions in question.
(ii) The condition relating to the result
95
The condition relating to the result was clarified in paragraphs 41 and 44 of the Consolidated Jurisdictional Notice. Paragraph 41 states that:
‘However, several transactions, even if linked by condition upon each other, can only be treated as a single concentration, if control is acquired ultimately by the same undertaking(s). Only in these circumstances two or more transactions can be considered to be unitary in nature and therefore to constitute a single concentration for the purposes of Article 3 [of Regulation No 139/2004] …. This excludes de-mergers of joint ventures by which different parts of an undertaking are split between its former parent companies. The Commission will consider those transactions as separate concentrations …. The same applies to transactions where two (or more) companies exchange assets in transactions involving de-mergers of joint ventures or assets swaps. Although the parties will normally consider those transactions as interdependent, the purpose of the Merger Regulation requires a separate assessment of the results of each of the transactions: Several undertakings acquire control of different assets; a separate combination of resources takes place for each of the acquiring undertakings; and the impact on the market of each of those acquisitions of control needs to be analysed separately under the Merger Regulation.’
96
Paragraph 44 provides:
‘The principle that several transactions can be treated as a single concentration under the mentioned conditions only applies if the result is that control of one or more undertakings is acquired by the same person(s) or undertaking(s). First, this may be the case if a single business or undertaking is acquired via several legal transactions. Second, also the acquisition of control of several undertakings – which could constitute concentrations in themselves – can be linked in such a way that it constitutes a single concentration. However, it is not possible under the Merger Regulation to link different legal transactions which only partly concern the acquisition of control of undertakings, but partly also the acquisition of other assets, such as non-controlling minority stakes in other companies. It would not be in line with the general framework and the purpose of the Merger Regulation if different transactions, linked by conditionality, were assessed as a whole under the Merger Regulations if only some of these transactions lead to a change in control of a given target.’
97
In the present case, as recalled in paragraph 5 above, concentration M.8871 concerns the acquisition by RWE of E.ON assets, while concentration M.8870 concerns the acquisition by E.ON of RWE’s subsidiary Innogy. Concentration B8-28/19 allows RWE to acquire a minority shareholding of 16.67% in E.ON.
98
In the first place, it must be observed that the acquiring undertakings are different in the case of concentration M.8870, on the one hand, and concentrations M.8871 and B8-28/19, on the other. The undertakings concerned are, respectively, E.ON and RWE. Similarly, the undertakings acquired are not the same, since in concentration M.8870 that undertaking is Innogy, a subsidiary of RWE, and in concentrations M.8871 and B8-28/19 the target undertakings are the E.ON assets and E.ON, respectively.
99
In the second place, as regards concentrations M.8871 and B8-28/19, while the acquiring undertaking is the same, namely RWE, the acquired undertakings are different. In concentration M.8871, RWE acquires the E.ON assets, whereas in concentration B8-28/19, RWE acquires a minority shareholding in E.ON. However, the combination of the acquisition of the E.ON assets and the minority shareholding in E.ON does not lead to RWE acquiring control over E.ON. In that respect, in transferring its assets to RWE, E.ON no longer has a link with those assets, so that RWE cannot exercise decisive influence over E.ON through them.
100
In those circumstances, it cannot be accepted that the intended result of the concentration operations is the acquisition of control over one or more undertakings by the same undertaking or undertakings. In short, beyond the interdependence intentionally created by RWE and E.ON, there is no functional link between concentrations M.8870, M.8871 and B8-28/19, since the overall transaction in question is not a concentration by means of which several intermediate transactions are carried out in order for control over one or more undertakings to be gained by the same undertaking or undertakings.
101
It follows that the overall transaction does not fulfil the condition relating to the result.
(3) Concept of ‘single concentration’ and requirement for an overall assessment
102
The applicant submits that it is contradictory for the Commission to analyse concentration M.8871 and concentration M.8870 separately while taking into account, in the context of the examination of concentration M.8871, the transfer of Innogy to E.ON.
103
In that regard, the Commission relies on the rule of priority.
104
According to that rule, in essence, the Commission, when assessing the effects of a concentration operation, will take into account the effects of a concentration notified prior to the one under review.
105
In accordance with that rule, the Commission took into account concentration M.8870 in the analysis of concentration M.8871, on the ground that concentration M.8870 was notified before concentration M.8871.
106
However, at the hearing, in response to questions put by the Court, the Commission acknowledged that, first, the rule of priority had not been referred to in the contested decision and that, secondly, it was not necessary to rely on it in order to explain the taking into account of concentration M.8870 in the analysis of concentration M.8871. In that regard, the mere fact that those two concentrations are linked is sufficient to explain why the Commission took into account concentration M.8870 in the contested decision.
107
It must be observed that the rule of priority is based solely on the Commission’s decision-making practice and is not provided for by any provision of Regulation No 139/2004 or Commission Regulation (EC) No 802/2004 of 7 April 2004 implementing Regulation No 139/2004 (OJ 2004 L 133, p. 1).
108
In the present case, from a formal point of view, concentration M.8871 was notified on 22 January 2019, that is to say before concentration M.8870, which was notified on 31 January 2019.
109
Therefore, even if the Court were to confirm the existence of the rule of priority in the terms set out by the Commission, it could not, in any event, be relevant to justify taking into account the effects produced by concentration M.8870 for the purpose of analysing the effects of concentration M.8871.
110
That said, the legality of a decision on the compatibility of a concentration with the internal market is to be assessed in the light of the information available to the Commission when the decision was adopted. Accordingly, the appraisal by the Commission of the compatibility of a concentration with the internal market must be carried out on the basis of the matters of fact and law existing at the time of notification of that transaction, the economic implications of which can be assessed at the time when the decision is adopted (see judgment of 20 October 2021, Polskie Linie Lotnicze LOT v Commission, T‑296/18, EU:T:2021:724, paragraph 55 and the case-law cited).
111
However, in the context of an asset swap, such as that in the present case, the Commission, as well as the notifying parties to the various concentration operations, can anticipate the effects on the internal market that the implementation of each concentration will be likely to have, both separately and jointly. Indeed, the interdependence in law and in fact of the concentration operations in the present case allows the Commission to envisage the prevailing market structure after they have been implemented.
112
Accordingly, in the present case, having regard to the interdependence of the concentration operations at issue, the mechanical application of the rule of priority could have arbitrary effects on the scope of the Commission’s analysis.
113
It should also be added that the objective of the concept of a ‘single concentration’ is to allow the joint examination of transactions which ultimately have the same result, namely the acquisition by one or more undertakings of direct or indirect economic control over the activities of one or more other undertakings. This is justified by the fact that, in such a situation, the planned transactions raise the same issues and have similar consequences on the internal market.
114
That interpretation is consistent with the interpretation which should be given to recital 20 and Article 3(1) of Regulation No 139/2004, by reference to its purpose and general structure (see, to that effect, judgment of 7 September 2017, Austria Asphalt, C‑248/16, EU:C:2017:643, paragraph 20 and the case-law cited).
115
By contrast, where, as in the present case, the concentration operations are not intended to produce the same result, they are not inherently unitary and do not need to be examined together as transactions forming part of a single concentration, since they do not necessarily raise the same issues and will not produce effects of the same nature on the market. In such a situation, several undertakings acquire control of different assets, so that a separate combination of resources takes place for each of the acquiring undertakings and the impact on the market of each of those acquisitions of control is different.
116
However, if those concentration operations have a link allowing the Commission to gain an understanding of the probable effects on the market of each concentration, it is for the Commission to take it into account in the overall assessment of all the relevant evidence that it carries out in respect of each of those operations. In that case, each of the operations in question constitutes, in the light of the other operations, an element which the Commission must take into account in its overall analysis of the effects of the operation on the internal market.
117
It follows that there is nothing contentious in the Commission analysing separately concentrations M.8870 and M.8871 while taking into account, in the contested decision, the impact which they have on each other respectively.
118
For the same reasons, it is necessary to reject the applicant’s argument that, in taking concentration M.8870 into account, the Commission anticipated the outcome of the assessment of that concentration, so that it should have examined the two concentrations together.
119
In order better to examine the impact which concentration M.8871 was likely to have on the internal market, the Commission was required to take into consideration a market which might be altered by the potential implementation of concentration M.8870. That does not mean, however, that the two concentration operations should have been analysed in the context of a single procedure, because they did not fulfil the conditions necessary to be regarded as forming part of a single concentration, or that the outcome of the analysis of concentration M.8870 was prejudiced.
(d)
Conclusion
120
Since one of the two conditions for a finding of the existence of a single concentration was not satisfied in the present case, namely the condition relating to the result, the Commission was right to consider that concentrations M.8870, M.8871 and B8-28/19 did not constitute the components of a single concentration.
121
It follows from all the foregoing that the first plea must be dismissed.
3.
The second plea in law, alleging breach of the duty to state reasons
122
The applicant takes the view that the statement of reasons for the contested decision is extremely succinct and does not do justice to the complexity and effects of the overall transaction. The applicant argues that the Commission’s statement of reasons is based on general descriptions and amounts, in essence, almost exclusively to the unsubstantiated argument that the growth of RWE as a result of the concentration is minimal and, in any event, temporary on account of the phasing out of nuclear energy.
123
According to the applicant, the statement of reasons for the contested decision at best only vaguely indicates how the many objections raised against the concentration were heard, assessed and weighed up. In any event, the applicant is unable to verify whether the approval granted was well founded. Similarly, the Commission did not examine other competitive aspects of the concentration at all.
124
The Commission, supported by E.ON and RWE, contests the applicant’s arguments.
125
It is clear from settled case-law that the statement of reasons required by Article 296 TFEU must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent EU Court to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see judgment of 10 July 2008, Bertelsmann and Sony Corporation of America v Impala, C‑413/06 P, EU:C:2008:392, paragraph 166 and the case-law cited).
126
The institution which adopted the measure is not required, however, to define its position on matters which are plainly of secondary importance or to anticipate potential objections. Moreover, the degree of precision of the statement of the reasons for a decision must be weighed against practical realities and the time and technical facilities available for making the decision. Thus, the Commission does not breach its duty to state reasons if, when exercising its power to examine concentrations, it does not include precise reasoning in its decision as to the appraisal of a number of aspects of the concentration which appear to it to be manifestly irrelevant or insignificant or plainly of secondary importance to the appraisal of the concentration. Such a requirement would be difficult to reconcile with the need for speed and the short timescales which the Commission is bound to observe when exercising its power to examine concentrations and which form part of the particular circumstances of proceedings for control of those concentrations (judgment of 10 July 2008, Bertelsmann and Sony Corporation of America v Impala, C‑413/06 P, EU:C:2008:392, paragraph 167).
127
It follows that where the Commission declares a concentration to be compatible with the internal market on the basis of Article 6(1)(b) of Regulation No 139/2004, the requirement to state reasons is satisfied where that decision clearly sets out the reasons for which the Commission considers that the concentration in question – where appropriate, following modification by the undertakings concerned – does not raise serious doubts as to its compatibility with the internal market (see judgment of 7 May 2009, NVV and Others v Commission, T‑151/05, EU:T:2009:144, paragraph 193 and the case-law cited).
128
In that regard, while it is true that the Commission is not obliged, in the statement of reasons for decisions adopted under the legislation relating to the control of concentrations, to take a position on all the information and arguments relied on before it, including those which are plainly of secondary importance to the appraisal it is required to undertake, it nonetheless remains the case that it is required to set out the facts and the legal considerations having decisive importance in the context of the decision. The reasoning must in addition be logical and must not disclose any internal contradictions (judgment of 10 July 2008, Bertelsmann and Sony Corporation of America v Impala, C‑413/06 P, EU:C:2008:392, paragraph 169).
129
Furthermore, it is clear from the case-law that a claim that there is no, or only an inadequate, statement of reasons constitutes a plea of infringement of an essential procedural requirement, which, as such, is different from a plea that the grounds of the decision are inaccurate, the latter plea being a matter to be reviewed by the Court when it examines the substance of that decision (see judgment of 19 June 2009, Qualcomm v Commission, T‑48/04, EU:T:2009:212, paragraph 175 and the case-law cited).
130
It is in the light of those considerations that the second plea put forward by the applicant must be examined.
131
First, it must be observed that, in the contested decision, the Commission defined the relevant market and explained its reasons for adopting that definition (paragraphs 11 to 24 of the contested decision).
132
Second, the Commission explained the structure of the market for the generation and wholesale supply of electricity in Germany and set out the market shares of the operators active in that market (paragraphs 25 to 29 of the contested decision) before analysing the increment in RWE’s share following the concentration. In that regard, the Commission in particular took into account the impact of the transfer of certain Innogy assets to E.ON (paragraphs 30 to 35 of the contested decision). Moreover, it reviewed the operation of the two subsidy schemes for assets which generate renewable electricity, as they are provided for by the Gesetz für den Ausbau erneuerbarer Energien (Erneuerbare-Energien-Gesetz – EEG 2017) (German Law on renewable energy) of 21 July 2014 (BGBl. 2014 I, p. 1066; ‘the EEG’) (paragraphs 36 to 39 of the contested decision). After setting out those various elements and RWE’s view (paragraphs 40 to 42 of the contested decision), it assessed the impact of the concentration on the market for the generation and wholesale supply of electricity in Germany and reached the conclusion that, prima facie, it was unlikely that the limited and, in any event, temporary net increment resulting from the concentration would materially strengthen RWE’s power on that market (paragraphs 43 to 47 of the contested decision). Notwithstanding that finding, the Commission considered it appropriate, in the light of the functioning of the market for the generation and wholesale supply of electricity, to examine the risk associated with capacity withholding strategies. In that connection, it took into account, inter alia, the responses to the market test which it had conducted (paragraphs 48 to 58 of the contested decision). It also examined the RSI analyses submitted by RWE and third parties and concluded that the concentration did not raise serious doubts as to its compatibility with the internal market (paragraphs 59 to 66 of the contested decision). Finally, it took into account the additional concerns raised by third parties and accordingly analysed them (paragraphs 67 to 73 of the contested decision).
133
Third, the Commission examined the issue of the impact of RWE’s acquisition of a 16.67% stake in E.ON (paragraphs 74 to 78 of the contested decision). Accordingly, on one hand, it analysed whether that acquisition was likely to accentuate the horizontal effects of the concentration and concluded that RWE’s acquisition of a 16.67% stake in E.ON would not alter the conclusion that it was unlikely that the concentration would materially strengthen RWE’s ability and incentives to withhold capacity (paragraphs 79 to 81 of the contested decision). On the other hand, the Commission examined the vertical effects of the concentration and, on that basis, input foreclosure as well as customer foreclosure (paragraphs 82 to 88 of the contested decision). Noting that some participants in the market test were concerned about the effects of the concentration on the liquidity of the market for the generation and wholesale supply of electricity and on RWE’s access to information on E.ON’s strategies and activities, the Commission also analysed those issues (paragraphs 89 to 95 of the contested decision).
134
Fourthly, the Commission addressed and analysed the issue of RWE’s relationship with Amprion (paragraphs 96 to 100 of the contested decision).
135
It follows that the Commission provided substantiated reasons for adopting the contested decision.
136
That conclusion cannot be called into question by the applicant’s arguments.
137
In the first place, it must be observed that the applicant essentially criticises the Commission for relying primarily, if not solely, on the finding that the increment in RWE’s market shares was only marginal and temporary. The applicant submits, in essence, that the Commission used that sole reason in order to reject the arguments put forward by third parties to contest the compatibility of the concentration with the internal market.
138
If the same explanation is put forward, without qualification, for the purpose of rejecting arguments which raise different issues, it is necessary to question the quality of the reasoning set out in the decision at issue. Even if the explanation is particularly convincing, it must nevertheless be adapted or accompanied by information to explain why it is relevant for the purpose of rejecting arguments relating to different matters.
139
That said, in the present case, it is important to point out that the contested decision is a decision adopted on the basis of Article 6(1)(b) of Regulation No 139/2004, a type of decision which, as the Court has accepted and as is clear, in essence, from the case-law recalled in paragraphs 126 and 127 above, may be accompanied by a statement of reasons which does not exhaustively cover all the matters relied on before it.
140
It is therefore necessary to strike a balance between a statement of reasons which is in fact artificial, because it is based, inter alia, on a formulaic explanation, and a statement of reasons which would require a disproportionate effort on the part of the relevant institution in the light of the nature of the decision adopted.
141
In the present case, it cannot be denied that the Commission repeatedly stated that, in its view, the concentration did not raise serious doubts as to its compatibility with the market, because the resulting increment in RWE’s generation would be limited and, in any event, temporary. That reason is contained in the examination of the increment resulting from the concentration (paragraphs 31 and 35 of the contested decision) and in the Commission’s general assessment (paragraphs 44 to 47 of the contested decision).
142
Those paragraphs therefore form the hard core of the Commission’s assessment.
143
However, in its analysis, the Commission did not confine itself to that finding in reaching the conclusion that the concentration did not raise serious doubts as to its compatibility with the internal market. The Commission also took into account, in the context of the examination of the risk relating to capacity withholding strategies, specific features related to wind-based electricity generation and examined RWE’s possible incentives for engaging in capacity withholding strategies by taking into account the functioning of the subsidy scheme for renewable electricity generation assets and the benefit which RWE might derive from its holding of nuclear assets (paragraphs 52, 53, 57 and 58 of the contested decision). Similarly, when examining the additional concerns raised by third parties, the Commission considered that the competitive advantage which RWE might acquire in the allocation of subsidies for the development and construction of new renewable electricity generation assets was unlikely to materialise, in particular in view of the fragmented structure of renewable energy generation in Germany (paragraph 69 of the contested decision). Likewise, as regards the incentives deliberately to mis-forecast electricity production from renewable sources, the Commission relied on the market test responses according to which suppliers in general had no incentives to produce such forecasts (paragraph 71 of the contested decision). The same applies to the analysis of the impact of RWE’s acquisition of 16.67% of E.ON’s shares on the horizontal and vertical effects of the concentration. The Commission examined the influence which RWE would be able to exert on E.ON and the incentive it would constitute for both entities (see, in particular, paragraphs 81, 85, 87, 88, 91 and 94 of the contested decision). Finally, as regards the vertical link with Amprion, the Commission referred to RWE and Commerz Real AG’s shared control over Amprion and to German and EU law, in addition to RWE’s marginal and temporary increment, and concluded that the concentration was unlikely to have the effect of foreclosing Amprion’s access to the transmission network (paragraphs 98 and 100 of the contested decision).
144
Therefore, the main argument put forward by the applicant, as set out in paragraph 137 above, must be dismissed.
145
In the second place, the applicant’s argument based on the small number of pages of the contested decision must be dismissed. The assessment of whether an institution has complied with its duty to state reasons must be made solely in the light of the content of its decision. In that respect, the number of pages is irrelevant, since a statement of reasons, albeit a brief one, may satisfy the rules set out in paragraph 125 above, in that it enables the person concerned to understand the basis upon which the decision was adopted (see, to that effect, judgment of 12 December 2018, Syriatel Mobile Telecom v Council, T‑411/16, not published, EU:T:2018:902, paragraph 79). Moreover, it has previously been held that the legality of a decision cannot depend on the number of recitals in the decision (judgment of 5 October 2020, HeidelbergCement and Schwenk Zement v Commission, T‑380/17, EU:T:2020:471, paragraph 363 (not published)) and that a succinct statement of reasons was not necessarily contrary to the requirements of Article 296 TFEU (see, to that effect, judgment of 11 December 2013, Cisco Systems and Messagenet v Commission, T‑79/12, EU:T:2013:635, paragraph 111).
146
In the third place, in accordance with the case-law referred to in paragraph 129 above, it is necessary to exclude from the examination of the plea relating to the duty to state reasons the applicant’s arguments seeking to criticise, in essence, the Commission for having erroneously found that RWE’s growth was negligible and only temporary on account of the phasing out of nuclear energy. Although the applicant puts forward those arguments in order to maintain that the Commission did not give reasons for its conclusion, it in fact calls into question the merits of that finding. The same applies to the arguments that the Commission unlawfully offset RWE’s increment resulting from the concentration by taking into account the transfer of Innogy’s assets to E.ON, and found RWE not to have influence over E.ON on the basis of RWE’s acquisition of 16.67% of E.ON’s shares, as well as the fact that RWE’s increment in market share was not insignificant or that RWE’s pivotality had increased significantly. Those arguments seek to demonstrate a manifest error of assessment of the effects of concentration M.8871 by the Commission and not a failure to state adequate reasons for the contested decision.
147
In the fourth place, as regards the competitive aspects which it is claimed the Commission did not examine, it must be observed that, in accordance with the case-law referred to in paragraph 128 above, the Commission was not required to define its position on those aspects which were plainly of secondary importance. Moreover, as regards RWE’s position in the area of balancing and ancillary services, although the Commission explained why it did not consider it necessary to conduct a separate analysis of the impact of the concentration on that market, it nonetheless carried out such an analysis (see paragraph 46 of the contested decision). Furthermore, contrary to what the applicant maintains, the Commission examined the RSI analyses produced by third parties and also analysed the consequences for the market of approving that concentration (see paragraph 59 et seq. of the contested decision).
148
In the fifth place, it is necessary to dismiss the applicant’s argument that the statement of reasons for the contested decision at best only vaguely indicates how the many objections raised against the concentration were heard, assessed and weighed up. It is clear from the contested decision, in particular from paragraphs 63, 64, 67 to 73 and 89 to 94, that the Commission took account of the comments submitted by third parties, some of which overlapped, and provided a response to them.
149
It follows from all the foregoing that, contrary to the applicant’s submissions, the Commission provided a sufficient statement of reasons to enable the applicant to understand the reasons why the Commission considered that the concentration did not raise serious doubts as to its compatibility with the internal market and to enable the Court to exercise its review.
4.
The third plea in law, alleging infringement of the applicant’s right to be heard
150
The applicant argues that the procedure infringed its right to participate. First, the applicant claims that the Commission failed to take its contribution into account. Second, the Commission should have clarified, inter alia by hearing the applicant and involving it more extensively in the procedure, whether certain specific approaches in the Oxera study were incorrect and, if so, which ones. Third, there was no real dialogue during the procedure before the Commission.
151
The infringement of the applicant’s right to participate is also shown, first, by the Commission’s opposition to access by the applicant to the Federal Competition Authority’s closed file and, second, by the Commission’s mere reference to third-party analyses of RWE’s market position which are constructed using different input parameters and which reached different conclusions, without the Commission having considered it necessary to clarify the contradictions found.
152
The Commission contests the applicant’s arguments.
153
In the first place, it must be observed that, in arguing that it was not sufficiently involved in the administrative procedure and that its ‘right to participate’ was infringed, the applicant is relying, in essence, on an infringement of its right to be heard.
154
In that regard, it must be recalled that, according to Article 11(c) of Regulation No 802/2004, the rights to be heard pursuant to Article 18 of Regulation No 139/2004 are available to third persons, that is natural or legal persons, including customers, suppliers and competitors, provided they demonstrate a sufficient interest within the meaning of Article 18(4), second sentence, of Regulation No 139/2004.
155
In addition, Article 18(4) of Regulation No 139/2004 provides:
‘In so far as the Commission or the competent authorities of the Member States deem it necessary, they may also hear other natural or legal persons. Natural or legal persons showing a sufficient interest and especially members of the administrative or management bodies of the undertakings concerned or the recognised representatives of their employees shall be entitled, upon application, to be heard.’
156
Article 16(1) of Regulation No 802/2004 provides:
‘If third persons apply in writing to be heard pursuant to Article 18(4), second sentence, of Regulation (EC) No 139/2004, the Commission shall inform them in writing of the nature and subject matter of the procedure and shall set a time limit within which they may make known their views.’
157
Accordingly, in the context of the procedure for the EU control of concentrations, the right to be heard is expressly granted, by Article 18(4) of Regulation No 139/2004 and Article 11(c) and Article 16(1) of Regulation No 802/2004, to third parties, such as the applicant, who show that they have a sufficient interest and who have requested to be heard.
158
Those third parties have a right to be heard by the Commission, if they so request, in order to make known their views on the harmful effects on them of the proposed concentration notified, but such a right must nevertheless be reconciled with the observance of the rights of the defence of the parties to the concentration and with the primary aim of the regulation, which is to ensure effectiveness of control as well as legal certainty for the undertakings to which the regulation applies (see judgment of 7 May 2009, NVV and Others v Commission, T‑151/05, EU:T:2009:144, paragraph 202 and the case-law cited). It is therefore in the context of this system for the protection of the respective rights of interested parties and third parties that it is necessary to determine whether, in the present case, the applicant’s rights were disregarded.
159
However, it is apparent from the file that the applicant made full use of the opportunity offered to third parties of taking part in the administrative procedure and of expressing its point of view on the concentration.
160
As the Commission stated in the defence, and as noted in paragraphs 35 to 38 above, the applicant submitted its comments on the concentration to the Commission, first, in its letter of 17 April 2018 and, secondly, at an individual meeting held on 28 August 2018.
161
It is also apparent from the file that the applicant sent a letter on 18 October 2018, supplementing the comments which it had submitted at the meeting of 28 August 2018.
162
By letter of 4 December 2018, the applicant sent the Commission the Oxera study, which it supplemented, by email of 25 January 2019, with the database used for the preparation of that study.
163
Finally, on 24 January 2019, the applicant received the Commission’s market test questionnaire, to which it responded on 30 January 2019. No further rights of participation were available to the applicant.
164
In those circumstances, the applicant cannot complain that the Commission did not permit it to express its point of view sufficiently during the course of the administrative procedure.
165
In the second place, as regards the issue of access to the Federal Competition Authority’s file, it is sufficient to note that the applicant’s request, which concerned the file relating to concentration B8-28/19, was submitted to the Federal Competition Authority on 18 March 2019, that is to say after the contested decision was adopted. Consequently, the Federal Competition Authority’s decision of 15 April 2019 rejecting that request cannot have any relevance to the Commission’s observance of the applicant’s right to be heard in the procedure which led to the adoption of the contested decision.
166
Moreover, it must be observed that, although the applicant criticises the Commission for having opposed its request, the applicant had made that request by asserting its interest in having access to the file in connection with its participation in the procedure relating to concentration M.8870 and does not maintain that, in the absence of any communication of that file, it was unable to submit comments on concentration M.8871, which was examined by the Commission.
167
In the third place, in criticising the Commission for not having sufficiently taken into account the applicant’s point of view and the arguments and evidence that it had put forward during the administrative procedure, the applicant seeks to allege that the Commission failed to assess the facts of the case in the same way as the applicant had.
168
The applicant argues that the Commission did not seek clarification on certain points, such as certain specific approaches in the Oxera study or the contradictions noted between the third-party analyses of RWE’s market position, but, in so doing, it fails to point out that, in the contested decision, the Commission acknowledged the existence of divergences between the analyses submitted by third parties, while noting that they all agreed on certain points (see paragraph 62 of the contested decision). The Commission based its conclusions on those points of agreement. Moreover, the applicant does not state what clarification it could have given as regards the Oxera study or the contradictions noted, if the Commission had questioned it on those points.
169
Accordingly, by its argument, the applicant criticises the Commission not for failing to hear its views, but rather for the conclusions which the Commission drew from the various sets of comments sent to it. Consequently, that argument is, in the context of the examination of the present plea, ineffective.
170
The same applies to the conclusions of the Federal Competition Authority, which the Commission merely reproduced.
171
In the light of all the foregoing, the third plea must be dismissed.
5.
The fourth plea in law, alleging infringement of the right to effective judicial protection
172
The applicant argues that the publication of the contested decision took place after a considerable amount of time had elapsed. In its view, that late publication led to an infringement of its right to effective judicial protection. In that regard, the fact that the two-month time limit for bringing an action only began to run from the date of publication of the contested decision, even if it is correct, would not have justified rendering the right to effective judicial protection meaningless.
173
Moreover, the applicant submits, in essence, that the fact that Article 20 of Regulation No 139/2004 does not require publication in the Official Journal of decisions adopted on the basis of Article 6(1)(b) of that regulation does not justify the late publication of the contested decision. In that regard, according to its own administrative practice and pursuant to the second paragraph of Article 296 TFEU, the Commission publishes decisions adopted on the basis of Article 6(1)(b) of Regulation No 139/2004.
174
Finally, the applicant maintains, in essence, that the Commission can shelter behind neither the context, namely the fact that it had to deal as a priority with concentration M.8870, nor the requests for ad hoc corrections made by RWE and E.ON to justify the time taken to publish the contested decision.
175
The Commission, supported by E.ON and RWE, contests the applicant’s arguments.
176
In that regard, it must be recalled that, according to Article 47 of the Charter of Fundamental Rights of the European Union, ‘everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article’.
177
That right to effective judicial protection requires that the person concerned must be able to ascertain the reasons upon which the decision taken in relation to, or adversely affecting, him or her is based, either by reading the decision itself or by requesting and obtaining disclosure of those reasons, so as to make it possible for him or her to defend his or her rights in the best possible conditions and to decide, with full knowledge of the relevant facts, whether there is any point in his or her applying to the court having jurisdiction, and in order to put the latter fully in a position to review the lawfulness of the decision in question (see, to that effect, judgments of 15 October 1987, Heylens and Others, 222/86, EU:C:1987:442, paragraphs 15 and 17; of 17 November 2011, Gaydarov, C‑430/10, EU:C:2011:749, paragraph 41; and of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 100 and the case-law cited).
178
In accordance with the case-law recalled in paragraph 177 above, since the contested decision, which had to be notified to the parties to the concentration pursuant to the third subparagraph of Article 297(2) TFEU, was also liable directly and individually to affect third parties to the concentration, the Commission was required, for the purposes of guaranteeing those third parties’ right to effective judicial protection, to adopt appropriate publicity measures so as to enable those third parties to ascertain the reasons upon which the contested decision was based.
179
In the present case, it is not disputed that the applicant was able to ascertain the reasons upon which the contested decision is based and, consequently, to put forward pleas and evidence for the purpose of seeking its annulment. Similarly, it must be observed that the applicant was given the opportunity to bring an action against the contested decision before the Court.
180
The applicant maintains, however, that its right to effective judicial protection has been infringed on account of the late publication of the contested decision.
181
In that regard, first, it should certainly be pointed out, as the Commission does, that, under Article 20(1) of Regulation No 139/2004, the Commission is to publish in the Official Journal only the decisions which it takes pursuant to Article 8(1) to (6) and Articles 14 and 15, with the exception of provisional decisions taken in accordance with Article 18(2), together with the opinion of the Advisory Committee.
182
Accordingly, in the present case, since the contested decision was adopted pursuant to Article 6(1)(b) of Regulation No 139/2004, which is not expressly referred to by Article 20(1) of that regulation, the Commission was not required, under Regulation No 139/2004, to publish the contested decision in the Official Journal.
183
Nevertheless, it must be noted that, in practice, when adopting decisions based on Article 6(1)(b) of Regulation No 139/2004, the Commission publishes a notice in the Official Journal stating that the full text of the decision will be made public after it is cleared of any business secrets it may contain and will be available either on the Commission’s website or on EUR-Lex.
184
Moreover, in paragraph 5 of the document entitled ‘Guidance on the preparation of public versions of Commission Decisions adopted under the Merger Regulation’ of 26 May 2015 (‘the Guidance Document’), the Commission states that, in application of the transparency principle deriving from Article 15 TFEU, and as an established practice, it also publishes on its website the non-confidential versions of decisions adopted pursuant to Article 6(1)(b) of Regulation No 139/2004, and to Article 6(1)(b) read together with Article 6(2) of that regulation. Furthermore, in paragraph 2 of that document, the Commission states that it makes as much information as possible available to the public, and only refrains from disclosing information to the extent that this is covered by its duty of professional secrecy or other public policy exceptions.
185
According to the case-law, the Commission is bound by notices which it issues in the area of supervision of concentrations, provided they do not depart from the rules in the Treaty and from Regulation No 139/2004 (judgment of 3 April 2003, BaByliss v Commission, T‑114/02, EU:T:2003:100, paragraph 143; see also judgment of 9 July 2007, Sun Chemical Group and Others v Commission, T‑282/06, EU:T:2007:203, paragraph 55 and the case-law cited). In addition, those rules, setting out the approach which the Commission proposes to follow, help to ensure that it acts in a manner which is transparent, foreseeable and consistent with legal certainty (see, to that effect, judgment of 7 March 2002, Italy v Commission, C‑310/99, EU:C:2002:143, paragraph 52 and the case-law cited).
186
While it is true that the case-law cited in the preceding paragraph was intended to establish the binding nature for the Commission of its Notice on remedies acceptable under Council Regulation (EEC) No 4064/89 and under Commission Regulation (EC) No 447/98 (OJ 2001 C 68, p. 3) and of the Guidelines on the assessment of horizontal mergers under the Council Regulation on the control of concentrations between undertakings (OJ 2004 C 31, p. 5; ‘the Guidelines’), that case-law is still relevant, whether the approach in question concerns the assessment of situations upon which the Commission must adjudicate or a procedural rule. To accept the contrary would be to give the Commission a discretionary choice as to whether or not to publish decisions even though they may affect the legal position of third parties, which is incompatible with the right to effective judicial protection and with the principle of legal certainty.
187
Moreover, on the one hand, as regards compliance of the Guidance Document with the rules of the Treaty and Regulation No 139/2004, although Article 20(1) of Regulation No 139/2004 makes no reference to publication in the Official Journal of decisions adopted on the basis of Article 6(1)(b) of that regulation, there is nothing to prevent the Commission from publishing them in some other way, as it already does in practice.
188
On the other hand, according to the second paragraph of Article 1 TEU, within the European Union, decisions are taken as openly as possible. Moreover, the principle of openness, enshrined in Article 15 TFEU, is binding on the Commission. That principle enables citizens to participate more closely in the decision-making process and guarantees that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system (see, to that effect, judgment of 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraph 45).
189
Therefore, the Guidance Document does not contradict Regulation No 139/2004 or the Treaty. Therefore, it must be accepted, contrary to the arguments of the Commission, E.ON and RWE, that the Commission has a self-imposed obligation to publish the decisions which it adopts pursuant to Article 6(1)(b) of Regulation No 139/2004, and to do so while ensuring that the confidentiality of information bound by professional secrecy or other public policy exemptions is preserved. Such publication of decisions adopted on the basis of Article 6(1) of Regulation No 139/2004 is consistent with the Commission’s obligation, recalled in paragraph 178 above, to guarantee, by means of appropriate publicity, the right of third parties, directly and individually concerned by such decisions, to effective judicial protection.
190
Second, it is common ground that the contested decision was adopted on 26 February 2019 and that a notice relating to it was published in the Official Journal on 3 April 2020, that is to say 402 days later. This is an objectively long period, as the Commission acknowledged at the hearing.
191
Nevertheless, without there being any need to examine the merits of the reasons put forward by the Commission to justify the time taken to publish the contested decision, it should be noted that the belated publication of an EU measure in the Official Journal does not affect the validity of that measure (judgment of 23 November 1999, Portugal v Council, C‑149/96, EU:C:1999:574, paragraph 54).
192
Third, nor can the validity of the contested decision be affected by the applicant’s argument that the action brought by it cannot be regarded as effective on the ground that, in view of the date of publication of the contested decision, it was unable to bring an action until more than 402 days after the decision was adopted, thereby exposing the market to the unhindered occurrence of the competitive consequences of the concentration.
193
If the contested decision were to be annulled, the Commission would be required, under Article 266 TFEU, to take the measures necessary to comply with the judgment delivered against it and, in addition, to restore the parties to their original position prior to the contested decision (see, to that effect, judgments of 31 March 1971, Commission v Council, 22/70, EU:C:1971:32, paragraph 60, and of 13 December 2017, Crédit mutuel Arkéa v ECB, T‑712/15, EU:T:2017:900, paragraph 43).
194
Moreover, if the applicant takes the view that it has suffered damage as a result of the late publication of the contested decision, it may bring an action for damages against the Commission under Article 268 TFEU.
195
Accordingly, the fourth plea, alleging infringement of the applicant’s right to effective judicial protection due to the late publication of the contested decision, must be rejected as ineffective.
6.
The fifth plea in law, alleging manifest errors of assessment
(a)
Preliminary considerations
196
By the fifth plea, alleging manifest errors of assessment, the applicant argues, in essence, that the Commission substantially and manifestly erred in considering that the concentration was compatible with the internal market, whereas it should have initiated the procedural phase provided for in Article 6(1)(c) of Regulation No 139/2004 and, consequently, declared the concentration to be incompatible with the internal market pursuant to Article 8(3) of Regulation No 139/2004.
197
As regards the standard of judicial review and the evidential requirements, reference is made to the case-law recalled in paragraphs 48 to 53 above.
198
As a preliminary point, it should be noted that, according to Article 2(3) of Regulation No 139/2004, a concentration which would significantly impede effective competition, in the internal market or in a substantial part of it, in particular as a result of the creation or strengthening of a dominant position, must be declared incompatible with the internal market.
199
It must be observed that it is the Commission’s task to make an overall assessment of what is shown by the set of indicative factors used to evaluate the competitive situation. It is possible, in that regard, for certain items of evidence to be prioritised and other evidence to be discounted. That examination and the associated reasoning are subject to a review of legality which the Court carries out in relation to Commission decisions on concentrations (judgment of 6 July 2010, Ryanair v Commission, T‑342/07, EU:T:2010:280, paragraph 136).
200
Moreover, according to settled case-law, the basic provisions of Regulation No 139/2004, in particular Article 2 thereof, confer on the Commission a certain discretion, especially with respect to assessments of an economic nature, and, consequently, review by the Courts of the European Union of the exercise of that discretion, which is essential for defining the rules on concentrations, must take account of the margin of discretion implicit in the provisions of an economic nature which form part of the rules on concentrations (see judgment of 6 July 2010, Ryanair v Commission, T‑342/07, EU:T:2010:280, paragraph 29 and the case-law cited).
201
Although, in areas giving rise to complex economic assessments, the Commission has a measure of discretion with regard to economic matters, that does not mean that the EU judicature must refrain from reviewing the Commission’s interpretation of information of an economic nature. Not only must the EU judicature, inter alia, establish whether the evidence relied on is factually accurate, reliable and consistent, it must also determine whether that evidence covers all the information which must be taken into account in order to assess a complex situation and whether it is capable of substantiating the conclusions drawn from it (judgments of 15 February 2005, Commission v Tetra Laval, C‑12/03 P, EU:C:2005:87, paragraph 39, and of 7 May 2009, NVV and Others v Commission, T‑151/05, EU:T:2009:144, paragraph 54).
202
It should also be recalled that the question as to whether the substantive assessment that the concentration at issue did not raise serious doubts as to its compatibility with the internal market, under Article 6(1)(b) of Regulation No 139/2004, falls to be examined in connection with the existence of a manifest error of assessment. In order to determine whether the Commission was entitled to rely on that provision in reaching its decision, it is necessary to analyse whether or not the Commission committed a manifest error in its assessment of the effects of the proposed concentration on competition (see, to that effect, judgment of 7 June 2013, Spar Österreichische Warenhandels v Commission, T‑405/08, not published, EU:T:2013:306, paragraph 48).
203
It is in the light of those considerations that it is necessary to examine whether the Commission committed a manifest error of assessment.
204
The applicant raises, in essence, four complaints alleging the existence of manifest errors of assessment by the Commission. The applicant, in particular, complains that the Commission (i) erred in its definition of the relevant market, (ii) erred in its definition of the period of analysis, (iii) erred in its assessment of RWE’s market power and (iv) erred in its assessment of the relationship between RWE and E.ON.
(b)
The first complaint, alleging an erroneous definition of the relevant market
205
The applicant complains that the Commission departed, without justification, from the definition of the relevant market given by the Federal Competition Authority in line with established decision-making practice. In that regard, the Commission refers to a ‘market for electricity produced from conventional sources’ which in reality does not exist and which encompasses electricity for railways and for industrial own consumption.
206
According to the applicant, a distinction must be drawn between the market for the generation and wholesale supply of conventional electricity and the market for the generation of electricity from renewable sources. The latter market is autonomous, because it is subject to the aid scheme provided for by the EEG and because, by contrast with the market for the wholesale supply of conventional electricity, prices on that market are not, for the most part, determined on the basis of supply and demand. Moreover, the applicant states that, in the past, decision-making practice concerning cartel law has, in particular, treated balancing and ancillary services as an independent market segment.
207
The Commission contests the applicant’s arguments.
208
First of all, it should be recalled that, according to settled case-law, a proper definition of the relevant market is a necessary precondition for any assessment of the effect of a concentration on competition (see judgment of 27 January 2021, KPN v Commission, T‑691/18, not published, EU:T:2021:43, paragraph 63 and the case-law cited).
209
The definition of the market in the products affected by the merger must take account of the overall economic context so as to make it possible to assess the actual economic power of the undertaking or undertakings in question and, for that purpose, it is necessary first to define the products which, although incapable of being substituted for other products, are sufficiently interchangeable with the undertaking’s own products, both as regards their objective characteristics and the competitive conditions and the structure of supply and demand on the market (judgment of 6 June 2002, Airtours v Commission, T‑342/99, EU:T:2002:146, paragraph 20).
210
Next, according to settled case-law, in so far as the definition of the relevant market involves complex economic assessments on the part of the Commission, it is subject only to limited review by the EU judicature (judgments of 17 September 2007, Microsoft v Commission, T‑201/04, EU:T:2007:289, paragraph 482, and of 7 May 2009, NVV and Others v Commission, T‑151/05, EU:T:2009:144, paragraph 53). According to equally settled case-law, the Court reviews assessments by the Commission concerning the definition of relevant markets by reference to a test of whether there was a manifest error of assessment (judgment of 30 September 2003, Cableuropa and Others v Commission, T‑346/02 and T‑347/02, EU:T:2003:256, paragraph 119; see also, to that effect, judgment of 6 June 2002, Airtours v Commission, EU:T:2002:146, T‑342/99, paragraphs 26 and 32).
211
In that regard, it must be recalled that the EU judicature has accepted that the Commission may leave open the definition of the relevant product market to the extent that none of the possible market definitions could lead to a finding of a significant impediment to effective competition following the concentration, provided it was clearly and unequivocally demonstrated by the reasons given by the Commission in the decision in question (judgment of 26 October 2017, KPN v Commission, T‑394/15, not published, EU:T:2017:756, paragraph 60).
212
Finally, the EU judicature has recognised that although the Commission was not bound by the assessments of the relevant markets carried out in its earlier decisions, that did not, however, mean that such past assessments could not be taken into account by the Commission during its analysis as a relevant factor among others if there was nothing to indicate that the conditions of competition on the relevant market had substantially changed compared with the earlier decisions (see, to that effect, judgment of 11 January 2017, Topps Europe v Commission, T‑699/14, not published, EU:T:2017:2, paragraph 93).
213
In the present case, first, it must be observed that, as stated in paragraph 13 of the contested decision, the Commission followed its previous decision-making practice of defining the market for the generation and wholesale supply of electricity as encompassing the trading on the wholesale market of the generated electricity within a certain geographic market as well as the electricity that is physically imported into that geographic market via interconnectors, irrespective of the source of generated electricity.
214
That being said, the Commission took into account, as is apparent from paragraph 14 of the contested decision, the practice of the Federal Competition Authority, which, unlike the Commission, draws a distinction, essentially, between the market for conventional electricity and the market for renewable-based generation that benefits from public subsidies under the EEG.
215
However, in paragraph 15 of the contested decision, the Commission, in essence, considered that such a distinction was not necessary for the purposes of analysing the effects of the concentration, since no competition concerns would arise whether the two markets were considered together or separately.
216
Moreover, the Commission noted, in paragraph 16 of the contested decision, that in the past it had segmented the market between the generation and wholesale supply of electricity, on the one hand, and balancing and ancillary services, on the other hand, but that, in the present case, this was not necessary as no competition concerns would arise even if a separate market for balancing and ancillary services was defined.
217
Second, the Commission identified, in paragraphs 21 and 22 of the contested decision, the electricity transmission market as a market distinct from the market for the generation and wholesale supply of electricity.
218
Third and last, in paragraphs 23 and 24 of the contested decision, the Commission considered that the definition of the market for the retail supply of electricity could be left open, both in terms of products and geographic scope, since, under any definition adopted, the concentration did not raise competition concerns.
219
By its arguments, first, the applicant complains, in essence, that the Commission, without providing any explanation in that regard, departed from its own previous decision-making practice by failing to distinguish between the market for the generation and wholesale supply of electricity and the market for balancing and ancillary services, and by failing to identify, in the context of defining the retail supply market, a specific market for electricity for railways and for industrial own consumption. Second, the applicant submits that the Commission wrongly, and without further explanation, departed from the decision-making practice of the Federal Competition Authority, which draws a distinction between the market for conventional electricity, comprising electricity both from conventional sources and from renewable sources not benefiting from the EEG, and the market for renewable electricity, comprising electricity from renewable energy sources benefiting from the EEG, in defining the relevant product market.
220
In the first place, however, it must be observed that it is clear from paragraphs 213 to 218 above that, contrary to the applicant’s assertions, the Commission explained why, first, it decided not to adopt the same market definition as the Federal Competition Authority, second, it did not distinguish between the market for the generation and wholesale supply of electricity and the market for balancing and ancillary services and, thirdly, in the context of defining the retail supply market, it did not draw any distinction according to the type of customer. In that regard, the Commission stated that, in its view, whatever the definitions of the market for the generation and wholesale supply of electricity and of the market for the retail supply of electricity finally adopted, the concentration did not raise any competition concerns.
221
The applicant has not put forward any specific argument to challenge the Commission’s assessment. In that regard, the applicant does not make clear why the Commission should have adopted a different definition of the two markets in question. In particular, it does not put forward any information concerning the specific characteristics of the various energy sources, their lack of interchangeability, the conditions of competition and the structure of demand and supply on those markets which would justify further segmenting them. It is true that the applicant asserts in the application that the market for electricity produced from renewable energy sources benefiting from the EEG is an autonomous market, in so far as, by contrast with the market for conventional electricity, prices on its market are not, for the most part, determined on the basis of supply and demand, but it does not further elaborate on this, and, accordingly, that assertion is not such as to call into question the definition adopted by the Commission.
222
In the second place, first, as regards the definition of the market for the generation and wholesale supply of electricity in so far as it includes balancing and ancillary services, on the one hand, it follows from the case-law referred to in paragraph 212 above that the Commission is not bound by assessments relating to the relevant markets made in its previous decisions. The Commission could therefore decide, in the present case, not to distinguish between the market for the generation and wholesale supply of electricity and the market for balancing and ancillary services.
223
On the other hand, it is clear from paragraphs 46 and 47 of the contested decision that the Commission nonetheless analysed what the effects of the concentration would have been in the event that it had agreed to consider a separate market for balancing and ancillary services.
224
Second, in so far as the Commission did not adopt the Federal Competition Authority’s definition of the market for the generation and wholesale supply of electricity, on one hand, it must be observed that the Court of Justice has held that, having regard to the clear division of powers on which Regulation No 139/2004 is based, decisions taken by the national authorities cannot bind the Commission in proceedings for the control of concentrations (judgment of 18 December 2007, Cementbouw Handel & Industrie v Commission, C‑202/06 P, EU:C:2007:814, paragraph 56). Accordingly, the Commission was not required to use the same definition of the relevant market as the Federal Competition Authority.
225
On the other hand, even though the Commission decided to leave the definition of the market for the generation and wholesale supply of electricity open and not to use the same market definition as the Federal Competition Authority, it nevertheless analysed, in paragraphs 31, 34, 45, 47 and 99 of the contested decision, the impact of the increment in RWE’s market shares linked to the concentration on the assumption that the markets for the generation of renewable energies benefiting from the EEG and of those not benefiting from it were distinct. Accordingly, the Commission took account of the market for the generation and wholesale supply of electricity as defined by the Federal Competition Authority.
226
Third, as regards the definition of the market for the retail supply of electricity, the Commission stated, in footnotes 27 and 29 of the contested decision, that the figure for total electricity generation in Germany from all energy sources in table 1 and the figure for conventional electricity generation in table 2 also included railway current consumption. It pointed out that, even excluding the volume related to those items, the market shares of the various German electricity producers would remain materially unchanged.
227
Although the applicant argues that, in so doing, the Commission considered the actual volume of the market for the generation and wholesale supply of electricity to be 396.6 terawatt hours (TWh) for 2017, instead of a volume amounting to 363.5 TWh, the applicant does not state that this had a significant impact on the market shares as set out by the Commission in the contested decision.
228
It follows from all the foregoing that the applicant has failed to establish that the Commission committed a manifest error of assessment in defining the relevant market. The complaint alleging an erroneous definition of the relevant market must therefore be dismissed.
(c)
The second complaint, alleging an erroneous definition of the period of analysis
229
The applicant complains that the Commission, in confining itself to the period prior to 2022, used a period of analysis which is too short. In addition, the Commission took account only of the phasing out of nuclear energy and did not take account of the fact that the energy sector was characterised by long-term investment cycles, calculated over 15 to 20 years. However, the German electricity market is ineluctably faced with the energy and climate transition, which will overturn all previous certainties. Lastly, the applicant notes that, in its previous practice, the Commission, in its predictions, often took account of long amortisation periods.
230
The Commission, supported by E.ON, contests the applicant’s arguments.
231
It must be recalled that, in the control of concentrations, the Commission is required to give a prognosis as to the market’s future development. It must assess whether a concentration is such as to significantly impede effective competition in the internal market or in a substantial part of it. That follows from Article 2(2) and (3) of Regulation No 139/2004.
232
That prospective analysis must be carried out with great care since it does not entail the examination of past events – for which many items of evidence are often available to enable their causes to be understood – or even of current events, but rather a prediction of events which are more or less likely to occur in the future if a decision prohibiting the planned concentration or laying down the conditions for it is not adopted. A prospective analysis consisting in an examination of how a concentration might alter the factors determining the state of competition on a given market, in order to establish whether it would give rise to a serious impediment to effective competition, makes it necessary to envisage various chains of cause and effect with a view to ascertaining which of them are the most likely (see, to that effect, judgment of 14 December 2005, General Electric v Commission, T‑210/01, EU:T:2005:456, paragraph 64).
233
Finally, as recalled, in essence, in paragraph 110 above, the appraisal by the Commission of the compatibility of a concentration between undertakings with the internal market must be carried out solely on the basis of the matters of fact and law existing at the time of notification of that transaction, and not on the basis of hypothetical factors the economic implications of which cannot be assessed at the time when the decision is adopted (see judgment of 13 September 2010, Éditions Odile Jacob v Commission, T‑279/04, not published, EU:T:2010:384, paragraph 327 and the case-law cited).
234
As a result, the Commission is expected to carry out an assessment of the effects of the concentration over a period the maximum duration of which cannot exceed – with a sufficient degree of certainty – the time frame within which certain events may occur. The further into the future the event to be foreseen, the greater is the uncertainty as to whether it will occur. From that point of view, the Commission cannot be required to carry out a prospective analysis on the basis of elements of which it is not able to envisage, within a reasonable margin of error, the long-term effects.
235
In the present case, in the first place, it must be held that the Commission, in taking into account the energy transition and the phasing out of nuclear energy, carried out a prospective analysis of events which, on the date of adoption of the contested decision, were sufficiently certain, since they had been decided upon by the German Government.
236
On that basis, the Commission examined the effects of the concentration on RWE’s market shares by drawing a distinction between two periods, that is to say the period from the completion of the concentration until 31 December 2022 and the period after that date, as is apparent, in particular, from paragraphs 30 and 35 of the contested decision. The Commission did the same with regard to the analysis relating to the effects of the concentration on the risk associated with capacity withholding strategies (paragraphs 56, 80 and 81 of the contested decision), on RWE’s pivotality (paragraphs 62 and 65 of the contested decision) and on the market for electricity transmission (paragraphs 99 and 100 of the contested decision). The date of 31 December 2022 was chosen since, in accordance with the Gesetz zur geordneten Beendigung der Kernenergienutzung zur gewerblichen Erzeugung von Energie (Law on the orderly phasing out of the use of nuclear energy for industrial energy production) of 22 April 2002 (BGBl. 2002 I, p. 1351), the nuclear assets involved in the concentration were to be phased out by that date at the latest.
237
It must be observed that it is apparent from paragraphs 68 and 69 of the contested decision that, in analysing the competitive advantage which RWE might acquire, as a result of the concentration, in the allocation of subsidies for the development and construction of new renewable energy generation assets, the Commission did not restrict its analysis in time. That is also true as regards the Commission’s analysis, in paragraphs 82 to 88 of the contested decision, of whether the acquisition by RWE of the minority shareholding in E.ON could give rise to any input or customer foreclosure, the analysis of the risk of negative repercussions on the liquidity of the market for the generation and wholesale supply of electricity, in paragraphs 89 to 91 of the contested decision, and the analysis of the risk of access by RWE to information on E.ON’s downstream strategies and activities, in paragraphs 92 to 94 of the contested decision.
238
Accordingly, it is clear that the Commission did not consider only the period prior to 2022.
239
The applicant’s argument that the Commission confined itself to considering the period prior to 2022 must therefore be dismissed.
240
In the second place, since the Commission considered the period after 2022 without, however, specifying its cut-off date for analysing the effects of the concentration, it is reasonable to conclude that it relied on a period of 3 to 5 years from the notification of the concentration, given in 2019, in carrying out its analysis.
241
That interpretation is supported by the Commission’s and E.ON’s pleadings.
242
In that regard, the applicant takes the view that the Commission should have considered a period of 15 to 20 years. Such a period would take into account, first, investment cycles appropriate to the electricity market and, second, the upheavals in that market as a result of the energy transition and the phasing out of nuclear energy. The applicant also criticises the Commission for having taken into consideration only the phasing out of nuclear energy and for not having followed its previous decision-making practice.
243
With regard to the Commission decisions cited by the applicant in support of its arguments, it must be observed, as does the Commission, that they were adopted in an economic and political context different from that of the present case.
244
Thus, as regards Commission Decision C(2005) 5593 final of 21 December 2005 declaring a concentration compatible with the internal market and the EEA agreement (Case COMP/M.3696 – E.ON/MOL), it concerned the Hungarian electricity market of 2005, which was to undergo numerous changes, as evidenced, in particular, by the power plant construction projects which had already been decided upon (see, in particular, paragraphs 150, 594, 601 and 602). With regard to Commission Decision C(2009) 9059 final of 12 November 2009 declaring a concentration to be compatible with the common market (Case COMP/M.5549 – EDF/Segebel), not only did it concern the French, Belgian and Netherlands electricity market in 2009, but the transaction itself imposed several deadlines for the completion of certain stages (see, in particular, paragraphs 66 and 75 of that decision). Finally, as regards the Commission’s decision of 7 May 2002 declaring a concentration to be compatible with the common market (Case COMP/M.2745 – Shell/Enterprise Oil), it related to the 2002 UK market and the data provided by the notifying parties and third parties permitted the Commission to base its decision on a 10-year period.
245
Accordingly, far from having decided, in an abstract manner, to consider a time period of over 10 years in analysing the effects of the concentrations notified to it simply because those concentrations related to the electricity market, the Commission did so because it had in its possession information which permitted it to take into consideration, with reasonable certainty, the development of the market during that period and, consequently, the effects of the concentrations.
246
It is therefore necessary to ask whether, in the present case, the Commission had in its possession information that would have allowed it to carry out a prospective analysis extending further into the future.
247
In that regard, as stated in paragraph 235 above, the Commission took account of the energy transition and the phasing out of nuclear energy. This is reflected in the fact that, first, the Commission referred, on several occasions in the contested decision, to the phasing out of nuclear energy and, secondly, it addressed the effects of the concentration by taking into consideration the impact of the EEG.
248
That finding is sufficient to reject the applicant’s argument that the Commission considered only the phasing out of nuclear energy.
249
Moreover, it must be observed that, although the applicant criticises the Commission for failing to take account of the fact that investment cycles in the electricity market extend over periods of 15 to 20 years, the applicant refers only to its investment plans. For example, it makes no reference to any investments that RWE might make following the concentration which could change the market for the generation and wholesale supply of electricity. To the contrary, the applicant even points out that, in its view, RWE and E.ON could be deterred from making massive investments following the concentration. As a result, it was not certain at the time of the adoption of the contested decision that RWE and E.ON would, following the concentration, make investments capable of changing the structure of the market. Accordingly, even assuming that investment cycles do indeed extend over periods of 15 to 20 years, as the applicant maintains, the Commission could not base its prospective analysis on such a period of time for that reason alone.
250
As regards the potential impact of the phasing out of coal, referred to by both the applicant and RWE, it must be observed that that phasing out is provided for by the Gesetz zur Reduzierung und zur Beendigung der Kohleverstromung (Law on the reduction and cessation of coal-fired power generation) of 8 August 2020 (BGBl. 2020 I, p. 1818; ‘the Law on the phasing out of coal’). In other words, that phasing out is subsequent to the adoption of the contested decision, so it may be concluded that, for that reason alone, the Commission could not take the effects of that law into account in determining the period of time over which it was to carry out its analysis.
251
However, it should be noted that that law was adopted following the submission of a report of 31 January 2019 drawn up by the Kommission für Wachstum, Strukturwandel und Beschäftigung (Commission for Growth, Structural Change and Employment, Germany), appointed by the German Federal Government on 6 June 2018. That report contained recommendations for a plan to reduce and phase out coal-fired power generation, as well as the legal, economic, social accompanying, nature restoration and structural policy measures needed to achieve it. The target date for the phasing out of coal was 2038.
252
In that regard, the applicant relies on the disappearance of Uniper SE from the market to argue that the structure of the market will change to the benefit of RWE. Uniper is a former energy company and a subsidiary of E.ON, acquired by Fortum Oyj following Commission Decision C(2018) 3921 final of 15 June 2018 declaring a concentration compatible with the internal market and the EEA agreement (Case M.8660 – Fortum/Uniper).
253
However, as regards Uniper, it should be pointed out that the report referred to in paragraph 251 above did not give a precise date for the closure of its coal-fired power plants, but stated that the coal-mine operator supplying Uniper planned to operate until the mid-2030s.
254
Moreover, it appears from the press release of the German Federal Government of 15 January 2020, referred to by the Commission in the rejoinder, that an agreement was reached between the German Federal Government and the Länder for the phasing out of coal. That agreement was intended to implement the recommendations of the Commission for Growth, Structural Change and Employment. Furthermore, in Uniper’s press release of 30 January 2020, the undertaking expressed its intention to phase out coal and stated that the report of the Commission for Growth, Structural Change and Employment proposed that the German Federal Government should reach an agreement with it not to bring the coal-fired power plant Datteln 4 online in exchange for financial compensation. That was the context in which the Law on the phasing out of coal was adopted. It should also be noted that although Article 4 of that law sets out a timetable for the reduction and cessation of emissions from coal-fired power stations, it does not name the power stations concerned, unlike the Law on the phasing out of nuclear energy.
255
Accordingly, although the Commission was aware that a Law on the phasing out of coal was in preparation and that Uniper would cease operating its coal-fired power plants, it was not in a position to ascertain or even envisage the precise arrangements for implementing that law, since, in any event, they were specified only in January 2020. Moreover, the applicant is concerned only with Uniper without taking into account the likely effects of that law on the position of RWE, which also owns coal-fired power stations. Finally, since the conventional electricity generation assets of E.ON affected by the concentration are nuclear assets and not coal-fired power plants, it must be concluded that the Commission was not required to take into account the changes brought about by that law in the market for the generation and wholesale supply of electricity in order reasonably to anticipate the effects of the concentration on a market thus redefined. This was all the more justified because, as the phasing out of coal was to extend until 2038, such an exercise would have required the Commission to provide a projection into a very distant future that could be affected by the occurrence of other changes which were not yet foreseeable and which could nevertheless further alter the structure of the market.
256
The applicant’s argument in that regard must therefore be dismissed, as must its argument concerning the change in the structure of the market as a result of the deterioration in Uniper’s position due to the closure of its coal-fired power plants.
257
In addition, the applicant submits that the Law on the phasing out of coal distorts competition in so far as the German Government provides RWE with considerable financial resources. In any event, it must be noted in that regard that, as the Commission maintains, it specifically did not characterise the Federal Republic of Germany’s tendering procedure as a distortion of competition. To the contrary, it concluded that those financial resources constituted aid compatible with the internal market (Commission Decision C(2020) 8065 final of 25 November 2020 on State aid SA.58181 (2020/N) – Tender mechanism for the phase-out of hard coal in Germany).
258
It follows from all the foregoing that the Commission did not have information allowing it to carry out a prospective analysis based on a period longer than the one which it chose, namely three to five years from the notification of the concentration. It therefore did not commit a manifest error of assessment when defining the period of analysis.
259
The complaint alleging an erroneous definition of the period of analysis must therefore be dismissed.
(d)
The third complaint, alleging an erroneous assessment of RWE’s market power
260
The applicant complains that the Commission erred in its assessment of RWE’s market position, in concluding that the increment in RWE’s market power was not an impediment. First, it submits that the Commission took into account only RWE’s market shares when analysing that undertaking’s market power. Second, the Commission erred in its analysis of market shares and other relevant factors, that is to say RWE’s pivotality in the market for the generation and wholesale supply of electricity, RWE’s incentives for capacity withholding strategies and other strategic uses of its generation portfolio and RWE’s pivotality in the market for balancing and ancillary services.
261
The Commission, supported by E.ON and RWE, contests the applicant’s arguments.
262
Each of the criticisms raised by the applicant must be examined, beginning with the criticism relating to the factors taken into account by the Commission.
(1) The elements taken into account by the Commission in its analysis of RWE’s market power
263
The applicant criticises the Commission for having carried out the analysis of RWE’s growing market power on the basis of market shares alone, without taking additional factors into account. The Commission limited the analysis of market power to the market shares of the producers, calculated on the basis of the volumes of electricity generated and capacities, without taking into account other factors which are relevant according to merger control standards and which have been used in previous analyses of the German market for the generation and wholesale supply of electricity. The applicant refers more specifically to the level of concentration calculated on the basis of the Herfindahl-Hirschman Index (‘the HHI’), RWE’s pivotal role as shown by the RSI, the analyses produced by third parties, the Oxera study and the market test. Accordingly, the Commission failed to address most of the competition issues resulting from the concentration. In doing so, the Commission committed a manifest error of assessment.
264
In that regard, it should be noted that, in its examination, the Commission dealt with market shares primarily in section 5.1.1 of the contested decision, entitled ‘Market structure’ (paragraphs 25 to 29), and in section 5.1.2 of the contested decision, entitled ‘The increment created by the concentration’ (paragraphs 30 to 35).
265
Moreover, the Commission set out in detail ‘The subsidy scheme for renewable assets’ (section 5.1.3 of the contested decision, paragraphs 36 to 39) as well as ‘The notifying party’s view’ (section 5.1.4 of the contested decision, paragraphs 40 to 42), based primarily on, first, the low combined market shares, second, the minimal increment in market shares, third, the presence of other competitors, and fourth, the fact that there was no increase in RWE’s pivotality.
266
In the light of the market shares and the elements referred to in the previous paragraph, the Commission carried out its analysis in section 5.1.5, entitled ‘The Commission’s assessment’ (paragraphs 43 to 65). In that section, the Commission determined that, in view of the limited and temporary nature of the increment in market shares in the market as a whole or in any of the segments considered, it is unlikely, prima facie, that that increment would materially strengthen RWE’s market power (paragraph 47 of the contested decision).
267
However, the Commission did not confine itself to that finding. It recognised that, due to the nature of the market for the generation and wholesale supply of electricity, an undertaking with limited market shares could nevertheless be in a position to influence prices. Therefore, the Commission analysed RWE’s ability and incentives to influence prices (paragraph 48 of the contested decision). The Commission began that analysis by assessing the risk relating to capacity withholding strategies (paragraphs 49 to 58 of the contested decision) and concluded that, in the light of RWE’s generation portfolio and the responses to the market test, the concentration would not increase RWE’s ability to withhold part of its generation to a decisive extent (paragraph 54 of the contested decision). The Commission subsequently examined the RSI analyses submitted by RWE and third parties (section 5.1.5.1 of the contested decision, paragraphs 59 to 65) and concluded from them that they would not modify its conclusion, namely that the concentration would not materially change RWE’s ability or incentive to distort competition (paragraph 65 of the contested decision).
268
In the light of the market shares and in particular the small and temporary increment in them, of its analysis of RWE’s withholding capacity and of the analyses of RWE’s pivotality, the Commission found that the concentration did not raise serious doubts as to its compatibility with the internal market. In the Commission’s view, that finding applies regardless of whether the market for the generation and wholesale supply of electricity in Germany is considered as comprising all generation or as being segmented between conventional and renewable electricity generation (section 5.1.6 of the contested decision, paragraph 66).
269
Moreover, in view of the nature of the industry concerned, the Commission decided to analyse other elements which might indicate a competitive impact on the markets, such as the RSI-based analyses in relation to pivotality or the Return on Withholding Capacity Index (‘the RWC Index’), in order to analyse withholding capacity. The Commission also took into account the responses to the market test, to which it made several references (paragraphs 53, 59, 67, 71, 92, 94 and footnote 9 of the contested decision). Finally, the Commission analysed the concerns expressed by third parties who responded to the market test, concerning RWE’s minority shareholding in E.ON and the effects of the concentration on markets other than the market for the generation and wholesale supply of electricity in Germany.
270
It is true that, as the applicant maintains, the Commission did not analyse the HHI in the contested decision.
271
According to paragraph 14 of the Guidelines, the concentration level provides useful first indications of the market structure and of the importance of the merging parties. In addition, paragraph 16 of the Guidelines states that the overall concentration level in a market may also provide useful information about the competitive situation. According to the latter paragraph, in order to measure concentration levels, the Commission often applies the HHI, which is calculated by summing the squares of the individual market shares of all the firms in the market. While the absolute level of the HHI can give an initial indication of the competitive pressure in the market post-merger, the change in the HHI, known as the ‘delta’, is a useful proxy for the change in concentration directly brought about by the merger. However, neither paragraph 14 nor paragraph 16 of the Guidelines requires the Commission to address the HHI in all its decisions (see judgment of 7 June 2013, Spar Österreichische Warenhandels v Commission, T‑405/08, not published, EU:T:2013:306, paragraphs 65 and 66 and the case-law cited).
272
It must also be held that paragraphs 19 to 21 of the Guidelines set out, essentially, the HHI thresholds below which a merger is unlikely to raise competition problems. Thus, in the Guidelines, the Commission considers, in particular, that a merger is unlikely to raise horizontal competition concerns in a market where the post-merger HHI is between 1000 and 2000 and the delta is below 250, or where the post-merger HHI is above 2000 and the delta is below 150, save in exceptional circumstances.
273
In the present case, it must be observed that the applicant does not provide its own calculations of the HHI. It was incumbent upon the applicant to do so in order to demonstrate that, had the Commission taken the HHI into account, it would have reached a different conclusion as to the effects of the concentration on the market.
274
It follows from the foregoing that not only did the Commission take into account relevant factors other than market shares in assessing RWE’s market power, but that, in addition, the applicant has not shown how taking into account the HHI, which was not required under the case-law cited in paragraph 271 above, or any other factors would have been capable of calling into question the Commission’s conclusions.
275
It is therefore appropriate to examine the Commission’s analysis of, first, the market shares held by RWE and, secondly, other factors.
(2) The analysis of market shares
276
The applicant submits that the Commission committed a manifest error of assessment in the assessment of market shares.
277
In that regard, in the first place, the applicant makes use of data other than those submitted by the merging parties and on which the Commission based its analysis of RWE’s market shares. It must be observed that the applicant does not indicate the existence of any legal rule prohibiting the Commission from relying on the data provided by the merging parties themselves in the context of the administrative procedure or, on the other hand, requiring it to conduct its own market test irrespective of the data provided by the merging parties (see, to that effect, judgment of 7 June 2013, Spar Österreichische Warenhandels v Commission, T‑405/08, not published, EU:T:2013:306, paragraph 126).
278
Moreover, the applicant merely uses its own data without explaining why the data used by the Commission is not correct.
279
It cannot be sufficient for the applicant to use data different from those used by the Commission in the contested decision in order to establish that the Commission committed a manifest error of assessment, without providing specific evidence capable of showing that the taking into account of the data in the contested decision constitutes a manifest error of assessment on the part of the Commission (see, to that effect, judgment of 7 June 2013, Spar Österreichische Warenhandels v Commission, T‑405/08, not published, EU:T:2013:306, paragraph 156).
280
It follows from the foregoing that the applicant has not shown that the data used by the Commission were inaccurate.
281
In the second place, it is necessary to verify whether the Commission committed a manifest error of assessment in its analysis of the data which it used.
282
It should be recalled that, in assessing the competitive effects of a merger, the Commission compares the competitive conditions that would result from the notified merger with the conditions that would have prevailed without the merger (judgment of 23 May 2019, KPN v Commission, T‑370/17, EU:T:2019:354, paragraph 115).
283
It must be observed that the existence of very large market shares is highly important and the relationship between the market shares of the undertaking (or undertakings) involved in the concentration and its (their) competitors, especially those of the next largest, is relevant evidence of the existence of a dominant position. Furthermore, a particularly high market share may in itself be evidence of the existence of a dominant position, in particular where the other operators on the market hold only much smaller shares (judgment of 23 February 2006, Cementbouw Handel & Industrie v Commission, T‑282/02, EU:T:2006:64, paragraph 201). By contrary inference, concentrations which, by reason of the limited market share of the undertakings concerned, are not liable to impede effective competition may be presumed to be compatible with the internal market (recital 32 of Regulation No 139/2004).
284
It follows from paragraph 17 of the Guidelines, first, that only very large market shares of 50% or more may in themselves be evidence of the existence of a dominant market position and, secondly, that although with a market share below 50% the merger may nevertheless raise competition concerns, this is in view of other factors, in particular the strength and number of competitors (judgment of 7 June 2013, Spar Österreichische Warenhandels v Commission, T‑405/08, not published, EU:T:2013:306, paragraph 59).
285
It is therefore in that context that it must be determined whether, in the present case, as the applicant submits, the Commission committed a manifest error of assessment in erroneously assessing RWE’s market position and in concluding that the increment in RWE’s market power was not an impediment.
286
In the present case, first, the Commission noted, in paragraph 26 et seq. of the contested decision, that, on the market for the generation and wholesale supply of electricity, RWE had, prior to the concentration, in the market for total electricity generation, a market share of between 20% and 30%, namely [confidential]%, (
1
) for electricity generation and between 20% and 30%, namely [confidential]%, for installed generation capacity. As a result of the concentration, RWE acquired an additional market share of between 0% and 1%, namely [confidential]%, (or [confidential] TWh) of total electricity generation and of between 0% and 1%, namely [confidential]%, (or [confidential] MW) of installed generation capacity (paragraph 27, table 1 and footnote 26 of the contested decision). However, as a result of concentration M.8870, the increment was only between 0% and 1%, namely [confidential]%, for electricity generation (or [confidential] TWh) and between 0% and 1%, namely [confidential]%, (or [confidential] MW) for installed generation capacity (paragraph 34 and footnote 36 of the contested decision). This is explained by the fact that, through concentration M.8870, certain generation assets of Innogy, a former subsidiary of RWE, were transferred to E.ON.
287
Second, the Commission noted that, as regards conventional electricity generation, prior to the concentration RWE had a market share of between 30% and 40%, namely [confidential]%, for electricity generation and of between 20% and 30%, namely [confidential]%, for installed generation capacity, and that the concentration would give RWE an additional market share of between 0% and 1%, namely [confidential]%, (or [confidential] TWh) for electricity generation or of between 0% and 1%, namely [confidential]% (or approximately [confidential] MW) for installed generation capacity (paragraph 28, table 2 and footnote 28 of the contested decision). As a result of concentration M.8870, the increment was only between 0% and 1%, namely [confidential]%, for electricity generation (paragraph 34 of the contested decision).
288
Third, as regards the generation of electricity from renewable sources, the Commission noted that, prior to the concentration RWE had a market share of between 0% and 5%, namely [confidential]%, for electricity generation and of between 0% and 5%, namely [confidential]%, for installed generation capacity, and that the concentration would give RWE an additional market share of between 0% and 1%, namely [confidential]%, (or [confidential] TWh) for electricity generation and of between 0% and 1%, namely [confidential]%, (or approximately [confidential] MW) for installed generation capacity (paragraph 29, table 3 and footnote 31 of the contested decision). As a result of concentration M.8870, the increment was at that time only between 0% and 1%, namely [confidential]%, for electricity generation (paragraph 34 of the contested decision).
289
Therefore, the concentration gave RWE an additional market share of at most 0% to 1%, namely [confidential]%. Such a limited increment cannot be regarded as being, in itself, significant.
290
It must be concluded that the Commission did not commit a manifest error of assessment in considering that the concentration would not lead to a significant increment in RWE’s market shares, irrespective of the market definition adopted.
291
Moreover, through the decommissioning of Gundremmingen C, scheduled for 31 December 2021, and the decommissioning of Emsland, scheduled for 31 December 2022 at the latest, part of the increment in market shares will also be reabsorbed, namely [confidential] of the [confidential] TWh of generation and [confidential] of the [confidential] MW of installed generation capacity. Accordingly, the lasting increment will be that relating to the capacity of wind farms, which amounts to [confidential] MW. Since the increment in market shares on the market for conventional electricity is based exclusively on the acquisition of nuclear power plants, that increment should completely disappear following the phasing out of nuclear energy scheduled for 31 December 2022 at the latest. Accordingly, the net increment in market shares after the completion of concentration M.8871 will be between only 0% and 1%, namely [confidential]%, (or [confidential] TWh) for electricity generation on the market for the generation and wholesale supply of electricity. Furthermore, with the phasing out of nuclear energy scheduled for 31 December 2022 at the latest, electricity generation should decrease by [confidential] TWh. Accordingly, the increment in market shares following the concentration will be temporary or even negative as from 2023.
292
In view of the foregoing, the Commission did not commit a manifest error of assessment in concluding that the actual increment caused by the concentration was only temporary in nature, as it would largely disappear once the nuclear assets were phased out by the end of 2022 (paragraph 35 of the contested decision). Accordingly, the small increment, from [confidential]% to [confidential]%, in the market for the generation and supply of conventional electricity in Germany will disappear once the phasing out of nuclear energy is completed.
293
That conclusion cannot be called into question by the applicant’s other arguments.
294
First, as regards the argument that the Commission failed to take into account the fact that RWE dominated the market for the generation and wholesale supply of electricity before the concentration, it is true that the Commission does not refer in the contested decision to the existence of a pre-existing dominant position of RWE. However, provided that the Commission is able to establish, on the basis of the evidence in the file, that a concentration is not capable of creating or strengthening a dominant position, the Commission is not required to establish beforehand whether the undertaking concerned already had a dominant position.
295
The Commission therefore did not commit a manifest error of assessment in not analysing whether RWE was a dominant undertaking before the concentration.
296
In any event, as stated in paragraph 310 below, the main quantitative element on which the applicant relies to support the existence of a pre-existing dominant position of RWE, namely RWE’s alleged pivotality, as measured by the RSI of the Oxera study, does not constitute an indication of such a position.
297
Second, the applicant argues that the acquisition of almost all E.ON’s electricity generation from renewable sources would enable RWE to break away even more clearly as the leading conventional electricity producer and to become the leading producer of renewable electricity. That combination would give it significant room for manoeuvre on the market, which would aggravate the effects of the concentration on competition in view of the high structural barriers to entry and the need for very significant capital investments and long-term planning.
298
In that regard, as noted in paragraphs 290 and 292 above, the Commission did not commit a manifest error of assessment in considering that the increment in market shares was limited and temporary. Moreover, the Commission rightly points out that, as regards generation from renewable energy sources, E.ON and RWE have a very small combined market share, amounting to only between 0% and 5%, namely [confidential]%. As regards generation from conventional energy sources, although RWE is the largest supplier in Germany ([confidential]%), the net increment is limited ([confidential]%) and in any event entirely caused by nuclear power assets which were to be decommissioned by the end of 2022 (paragraph 45 of the contested decision). Accordingly, the Commission concluded, without committing a manifest error of assessment, that, prima facie, it was unlikely that that increment would materially strengthen RWE’s market power in the German electricity generation and wholesale supply market (paragraph 47 of the contested decision).
299
It follows from the foregoing that, as regards the analysis of RWE’s market shares, the Commission did not commit a manifest error of assessment.
(3) RWE’s pivotality on the market for the generation and wholesale supply of electricity
300
The applicant complains that the Commission did not exhaustively examine the strengthening of RWE’s pivotality on the market for the generation and wholesale supply of electricity, as shown inter alia by the RSI.
301
According to the applicant, in the light of the Oxera study in particular, prior to the concentration RWE was already pivotal in the market for the generation and wholesale supply of electricity, which reflected a dominant position. The concentration strengthened RWE’s pivotality.
302
As stated in paragraph 60 of the contested decision, an RSI analysis consists in assessing whether a company is pivotal, that is to say whether it is indispensable to meet demand. In practice, the RSI is used to check, for all hours in a given year, whether the competitors’ capacity is sufficient to meet demand once the merged entity is removed from the market.
303
In that regard, the Commission explained in paragraph 60 of the contested decision that the Federal Competition Authority and the Monopolkommission (Monopolies Commission, Germany) considered that when a supplier is pivotal for more than 5% of the hours in a given year, this was indicative of market power.
304
However, while recognising its usefulness, the Commission considered, in paragraph 61 of the contested decision, that the RSI had certain limitations which should be taken into account when reviewing the effects of concentrations. A company which is not pivotal may nevertheless influence wholesale prices, for example by withholding capacity. The Commission also noted that even if a company was pivotal it might have only limited incentives to exercise market power where the residual demand that cannot be met by competitors is small.
305
Nevertheless, while explaining why it considered the RSI analyses to be of limited use in the control of concentrations, the Commission took those analyses into account and examined them. In that regard, it is permissible for the Commission, in the context of its discretion in the matter, to draw attention to the limitations of the RSI-based economic analyses model to be taken into account in the overall assessment of the concentration (see, to that effect and by analogy, judgment of 6 July 2010, Ryanair v Commission, T‑342/07, EU:T:2010:280, paragraphs 116 to 118). Accordingly, the applicant cannot criticise the Commission for having taken into account the limitations of the RSI-based analyses in its analysis of RWE’s pivotality.
306
Moreover, the Commission stated, in footnote 46 of the contested decision, without being contradicted by the applicant, that, according to the third parties, the increment in pivotality, that is to say the absolute increase in the percentage of all the hours in the year during which RWE is indispensable to meet demand, was between 0.4% and 1.1% for 2017 and between 0.7% and 1.1% for 2019.
307
Furthermore, it is apparent from paragraph 62 of the contested decision that the various RSI analyses submitted to the Commission all agree that, first, RWE is in the short term, that is to say until 2022, a supplier which is indispensable to meet demand for significantly below 10% of all hours of the year and, second, any increase in the periods in which RWE remains indispensable will disappear at the latest following the phasing out of nuclear energy scheduled for the end of 2022.
308
In addition, the Commission stated in paragraph 64 of the contested decision that only the Oxera study considered a scenario based on withholding wind generation capacity and the control of E.ON’s conventional energy generation assets, the effects of which were relatively larger. The Commission considered, however, that the assumptions on which that scenario was based were not supported by the facts of the case: first, RWE was not able to withhold renewable generation capacity on an hour-by-hour basis, in so far as the renewable energy generation assets were not suited for withholding operations; second, its minority shareholding in E.ON did not confer full control to RWE over the day-to-day management of E.ON’s retained assets.
309
In that regard, as noted in paragraphs 322 and 391 below, the Commission’s assertions that, first, renewable electricity generation facilities are not suitable for withholding and, second, RWE will not acquire control over E.ON’s day-to-day operations are substantiated. Accordingly, the Commission could plausibly argue that the assumptions upon which the model in the Oxera study was based did not reflect reality.
310
Further, the Oxera study cannot support the existence of a significant impediment to effective competition through RWE’s pivotality. First of all, the Oxera study shows that in 2019, without the concentration, RWE would be pivotal for 4% of the hours in the year, thus falling below the 5% threshold which is indicative of market power according to the Federal Competition Authority and the Monopolies Commission, and therefore it cannot be concluded that RWE had a dominant position in that regard before the concentration. Next, the increase in the RSI following the concentration is limited. For example, for 2019, that model predicts that the share of the hours in the year in which RWE will be pivotal will increase from 4% in the absence of the concentration to 5.5% following the concentration, and for 2022 from 8.6% in the absence of the concentration to 9.9% following the concentration. This means, therefore, that the increase in the hours during which RWE is pivotal will increase by 1.5 percentage points for 2019 and by 1.3 percentage points for 2022. Accordingly, the increase in RWE’s pivotality noted by the Oxera study is not radically different from that noted by third parties and set out in paragraph 306 above. Moreover, the RSI values for 2024 are identical in the scenario in which no concentration takes place and the post-concentration scenario, which demonstrates that, following the phasing out of nuclear energy, there is no increase in RWE’s pivotality on account of the concentration.
311
It follows from the foregoing that the applicant has not demonstrated the existence of a manifest error of assessment in the Commission’s analysis of RWE’s pivotality.
(4) RWE’s incentives for capacity withholding strategies and other strategic uses of its generation portfolio
312
The applicant submits that the Commission was wrong to consider that RWE did not have the potential to withhold capacity, first, in referring to the negligible nature of RWE’s growth and, secondly, in relying on the market test instead of estimating the additional room for manoeuvre. In that regard, the applicant submits, in particular, that the RWC index concerning the return on withholding capacity shows that RWE, on account of its market power, was already in a position to influence prices and optimise income from its portfolio by withholding capacity before the concentration. By means of the concentration, RWE could withhold additional capacity and benefit even more from price increases. Accordingly, the RWC index concerning the return on withholding capacity shows that withholding was profitable for RWE for several thousand hours per year.
313
Capacity withholding strategies by suppliers consist in the physical or economic withholding of a part of their production in order to trigger a price increase, which, to be taken advantage of, requires a combination of flexible generation (coal and gas) that can be withheld and baseload generation (nuclear, lignite and renewables) that would remain operational and would benefit from the resulting price increases.
314
In the first place, it must be recalled that it is the Commission’s task to make an overall assessment of what is shown by the set of indicative factors used to evaluate the competitive situation. On the basis of that overall assessment, the Commission may prioritise certain items of evidence and discount other evidence. The Court must review the legality of that examination and its reasoning (see, to that effect, judgment of 6 July 2010, Ryanair v Commission, T‑342/07, EU:T:2010:280, paragraph 136).
315
It must be observed that, in paragraph 51 of the contested decision, the Commission found that the additional capacity acquired by RWE did not materially enhance its ability or incentives to withhold capacity.
316
First, renewable energy installations have the lowest marginal costs among the flexible generation technologies, with the result that they are the most costly to withhold (paragraph 52 of the contested decision). Electricity producers confirmed during the market test that such plants are typically run at full capacity and that withholding them, which is technically possible, makes economic sense only in the rare circumstances when the wholesale prices are negative (paragraph 53 of the contested decision). The Commission found, in paragraph 54 of the contested decision, that the acquisition of wind farms as a result of the concentration did not increase RWE’s ability to withhold capacity to any decisive extent. Nor, as is clear from paragraph 57 of the contested decision, did it increase RWE’s incentives to withhold capacity, since the temporary net increment of [confidential] TWh in renewable wind-based capacity was remunerated under the ‘direct selling’ scheme, so that an increase in prices on the market for the generation and wholesale supply of electricity tended significantly to reduce the extent to which a plant falling with the scope of the EEG benefited from a price increase in that market.
317
Second, the Commission noted, in paragraphs 55, 56 and 58 of the contested decision, that the increment in RWE’s withholding capacity through the acquisition of nuclear capacity was temporary and limited to [confidential] TWh or between 0% and 1%, namely [confidential]%, of total generation and was unlikely to have a material effect on RWE’s incentives to engage in a capacity withholding strategy.
318
The Commission stated, in paragraph 63 of the contested decision, that only the Oxera study presented a simulation model which aimed at estimating RWE’s incentives to contemplate withholding capacity. The Commission concluded from that model that, in the case of withholding generation capacity based on conventional energy sources, such as gas and coal-fired power plants, the effects of the concentration were very limited.
319
Accordingly, it is apparent from the contested decision, in particular from paragraph 65 thereof, that the Commission analysed the Oxera study, by means of which the applicant seeks to substantiate its claims as to RWE’s ability and incentives to withhold capacity, and concluded that the various analyses submitted, including the Oxera study, had not altered its conclusions.
320
In the second place, it is necessary to ascertain whether the Commission committed a manifest error of assessment in its analysis of the risk of the withholding of generation capacity.
321
As stated in paragraphs 290 and 292 above, the Commission did not commit a manifest error in considering that the increment in market shares was not significant and, in any event, that the increment would be temporary. It must also be concluded from this that no additional withholding capacity can be expected to result from the concentration after the phasing out of nuclear energy scheduled for the end of 2022. That finding is confirmed by the Oxera study, the model of which shows that in 2024 there will be no additional withholding incentives as compared with the situation before the concentration.
322
With regard to the short-term additional capacities or incentives for withholding, that is to say until the phasing out of nuclear energy scheduled for the end of 2022, on the one hand, as regards renewable energy installations, the Commission noted that the participants in the market test stated that renewable energy installations were not likely to employ withholding strategies. It should also be noted that the applicant does not challenge the Commission’s finding that renewable energy installations are the power plants with the lowest marginal costs, with the result that they are the most profitable and least likely to be withheld. The Commission also determined whether the temporary acquisition of additional renewable capacity could induce RWE to withhold its power plants other than renewable energy installations. In that regard, the Commission noted that any price increase caused by the withholding of other power plants would have meant that remuneration in respect of renewable energy installations under the EEG would decrease. Accordingly, in addition to the possible increases in withholding capacity being temporary, it should be noted that any additional incentives for short-term withholding arising from renewable energy capacity is limited.
323
On the other hand, with regard to the acquisition of a minority shareholding in the Emsland and Gundremmingen C nuclear power plants, the additional capacity or incentives to withhold are temporary and limited due to their phasing out by the end of 2022. It should also be noted that the Oxera study did not establish the existence of a significant increase in incentives to withhold. As regards energy from conventional sources, the Oxera study does not show, in that respect, any significant variation in prices and in the number of profitable hours linked to the withholding of a gas-fired power plant after the concentration. In the case of the withholding of a coal-fired power plant, the number of profitable hours is slightly higher for 2019 and 2022 and almost identical in 2024.
324
In the light of the foregoing, it must be concluded that the Commission did not commit a manifest error of assessment in its analysis of RWE’s possibility and incentives to withhold capacity following the concentration.
325
In the third place, it is necessary to analyse the applicant’s additional concerns relating to the potential strategic use of RWE’s generation portfolio, namely, first, deliberate mis-forecasting in the renewable wind power sector, second, the strategic use of the period between the day-ahead market and the more volatile intraday market and, third, price manipulation.
326
In that regard, the Commission noted, in paragraph 71 of the contested decision, that the profitability of a strategy based on deliberate mis-forecasting, so as to induce stronger demand for balancing services characterised by higher prices, was difficult to establish and that, in addition, the majority of competitors participating in the market test had indicated that suppliers in general had no incentives to mis-forecast the production from renewable energy sources. The Commission concluded in paragraph 72 of the contested decision that the concentration could have effects only in two alternative scenarios, namely if RWE’s renewable capacities materially increased or if RWE’s position in the balancing and ancillary services market was strengthened. Since the applicant has neither disputed the relevance of those two scenarios nor presented other situations in which the concentration could have effects, it is necessary only to examine whether those two scenarios materialised in the present case.
327
However, with regard to wind capacity and capacity in the area of balancing and ancillary services, it has been found, in paragraph 290 above and in paragraph 331 below, that the Commission was entitled to consider, without committing a manifest error of assessment, that the increments resulting from the concentration were limited and temporary. Moreover, RWE’s ability or incentive to arbitrage prices in any way is linked neither to the ability or incentive to withhold capacity nor to the balancing market, since selling on the daily market and selling on the intraday market take place on the same market, the market for the generation and wholesale supply of electricity. The limited and temporary nature of any increment in RWE’s capacity leads to the same conclusion: the concentration can result in only a limited and temporary increase in RWE’s ability and incentives to manipulate prices. Therefore, neither of the two scenarios envisaged in paragraph 326 above materialised.
328
In any event, whatever effect the capacity increases may have in the short term, those increases are uncertain and the applicant has not established, to the requisite standard of proof, the existence of strong evidence of a significant impediment to effective competition in that regard.
329
Accordingly, it must be concluded that the Commission did not commit a manifest error of assessment in its analysis of the additional concerns arising from strategic use of RWE’s generation portfolio.
(5) RWE’s pivotality in the market for balancing and ancillary services
330
The applicant argues, in essence, that RWE was already a pivotal supplier in the market for balancing and ancillary services prior to the concentration and that, as a result of the concentration, the number of hours during which RWE was pivotal would remain the same, but E.ON would disappear as a competitor. According to the applicant, the Commission had not specifically examined the fact that RWE was pivotal in the area of balancing and ancillary services.
331
In the first place, it must be observed that the Commission, in paragraph 46 of the contested decision, concluded that, in the market for balancing and ancillary services, the increment resulting from the concentration would be very limited and temporary. The Commission noted that electricity generation from renewable energy sources was normally not used for balancing purposes and that nuclear capacity had to be pre-qualified for that use. That pre-qualification arises from the process initiated by a supplier which wishes to participate in the balancing market by means of a generation unit and which has applied to the transmission system operator responsible for the tender relating to electricity balancing. As regards the nuclear capacities acquired, first, the Emsland plant was indeed pre-qualified, but RWE already held all the marketing rights for the reserve energy. Secondly, Gundremmingen C is pre-qualified for primary reserve, that is to say the first electricity reserve activated automatically in the event of a grid imbalance, and tertiary reserve, that is to say the third electricity reserve activated by the transmission system operator in accordance with a balancing mechanism, but has never taken part in the auctions for primary reserve.
332
It must be observed that the applicant acknowledges that the number of hours during which RWE is pivotal in the market for balancing and ancillary services would not change as a result of the concentration. Moreover, the Oxera study notes that, in practice, nuclear power plants are not used for balancing purposes and states that the concentration is unlikely to have a direct effect on the market for balancing and ancillary services.
333
Accordingly, the concentration does not affect the extent to which RWE is indispensable to meet total demand for electricity in the market for balancing and ancillary services. The Commission therefore concluded, without committing any manifest error, that the degree of RWE’s pivotality in the market for balancing and ancillary services would not increase.
334
In the second place, as regards the impact of the elimination of E.ON as a competitor, it should be noted that, according to the Oxera study, the strengthening of RWE’s position on the market for balancing and ancillary services was the result of that elimination. The relationship between RWE and E.ON is analysed in paragraphs 339 to 391 below, but it is possible at this point to conclude that, with the small generation capacities it retained after the sale of Uniper to Fortum, E.ON was no longer able to have, even prior to the concentration, any significance on the market for balancing and ancillary services. Moreover, the assets transferred to RWE by means of the concentration did not have, before the concentration, any balancing capacity for the reasons set out in paragraph 331 above.
335
As a result, the applicant fails to call into question the validity of the Commission’s findings in the contested decision concerning RWE’s pivotality on the market for balancing and ancillary services.
(6) Conclusion
336
It follows from all the foregoing that, subject to an examination of the merits of the applicant’s arguments relating to the proximity of the merging parties (see paragraphs 339 to 346 below) and concerning the elimination of E.ON on a lasting basis (see paragraphs 347 to 365 below), the Commission did not commit a manifest error of assessment in its analysis of the impact of the concentration on RWE’s market power. In that regard, the Commission was right to consider that the examination of the market shares acquired as a result of the concentration and of other factors did not show that the concentration was likely to significantly change RWE’s market power. Consequently, the applicant’s complaint alleging an erroneous assessment of RWE’s market power must be dismissed.
(e)
The fourth complaint, alleging an erroneous assessment of the relationship between RWE and E.ON
337
The applicant submits, in essence, that the Commission failed to properly examine the relationship between RWE and E.ON and in particular the relationship of interdependence and the proximity between RWE and E.ON, the elimination of E.ON on a lasting basis, RWE’s decisive influence on E.ON and the sharing of the electricity markets decided on by RWE and E.ON. In that regard, had the Commission properly and fully examined the facts relating to the relationship between RWE and E.ON and carried out a diligent economic assessment, it would not have declared the concentration compatible with the internal market.
338
The Commission, supported by E.ON and RWE, contests the applicant’s arguments.
(1) The relationship of interdependence and the proximity between RWE and E.ON
339
The applicant submits that, in failing to take into account the relationship of interdependence and the proximity between RWE and E.ON, the Commission incorrectly determined RWE’s market power.
340
First, as regards the direct or indirect holdings of RWE and E.ON in undertakings in the energy sector in Germany, the applicant submits, in essence, that the Commission committed a manifest error of assessment, since it did not take into account the holdings of RWE and E.ON in the entire energy sector.
341
However, the applicant does not explain what effects those shareholdings could have on the analysis of the impediments to competition connected with the concentration. The applicant merely refers to the number of holdings of RWE and E.ON in other undertakings without explaining whether those undertakings are active in the relevant markets, the positions they occupy on the market, how their relationship with RWE and E.ON could impede competition or whether those hypothetical impediments are consequences linked to the concentration.
342
Moreover, it must be observed that the Commission has actually taken into account, in its assessment of the concentration, the production capacities of the subsidiaries and undertakings in which RWE and E.ON have shareholdings. Accordingly, in the market shares allocated to RWE and E.ON in table 1 of the contested decision, the Commission attributed to RWE and E.ON all the generation capacity which they control directly or indirectly through subsidiaries. Therefore, the Commission clearly took into account the direct and indirect shareholdings of RWE and E.ON.
343
Second, as regards its argument that E.ON and RWE are structured and positioned in a very similar way, the applicant submits, in essence, that that proximity is further evidence of RWE’s market power.
344
In that regard, however, the applicant does not explain how the parallel trend in the stock market prices of those two securities and in the operating profit identified or the fact that the registered offices of E.ON and RWE are located in the same city affect the application of merger law and, in particular, how those factors could have an impact on the creation or strengthening of any dominant position of RWE. Those factors are, to the contrary, merely incidental in nature. The fact that both undertakings have their registered offices in Essen (Germany) is irrelevant in assessing the effects of the concentration on the market for the generation and wholesale supply of electricity. As for the parallel trend in their revenues and stock market value, this can be explained by the normal trend for two companies operating in the same sector.
345
Third, the applicant also fails to explain how the mere geographical proximity of the personnel of RWE and E.ON could lead to the emergence of cooperation between the two undertakings which is contrary to Article 101 TFEU or the law on mergers.
346
Accordingly, the Commission did not commit a manifest error of assessment as regards the relationship of interdependence and the proximity between RWE and E.ON.
(2) The elimination of E.ON on a lasting basis
347
The applicant argues that the Commission failed to examine the elimination of E.ON and the resulting negative consequences for competition, which is the central competitive issue raised by the concentration.
348
The applicant argues, in essence, that E.ON exerted healthy competitive pressure on RWE and that the most significant result of the concentration is E.ON’s elimination on a lasting basis as a potential competitor in the renewable electricity generation sector and in the market for balancing and ancillary services. Thus, the Commission allegedly failed to have regard to paragraph 27 of the Guidelines in the light of, first, the proximity between the merging parties in terms of competition, second, the ability of the merging parties to hinder expansion by smaller competitors and, third, the elimination by the concentration of a significant competitive force.
349
It must be recalled that, as stated in paragraph 185 above, the Commission is bound by notices which it issues in the area of supervision of concentrations, provided they do not depart from the rules in the Treaty and from Regulation No 139/2004 (judgments of 3 April 2003, BaByliss v Commission, T‑114/02, EU:T:2003:100, paragraph 143, and of 7 June 2013, Spar Österreichische Warenhandels v Commission, T‑405/08, not published, EU:T:2013:306, paragraph 58).
350
However, the Guidelines do not require an examination in every case of all the factors which they mention, since the Commission enjoys a discretion enabling it to take account or not to take account of certain factors (judgment of 7 June 2013, Spar Österreichische Warenhandels v Commission, T‑405/08, not published, EU:T:2013:306, paragraph 274).
351
Finally, review by the General Court of the contested decision is not limited merely to establishing whether or not the Commission took into account elements mentioned in the Guidelines as relevant to the assessment of the impact of the concentration on competition. The Court must also, in the course of its review, consider whether any possible omissions on the part of the Commission are capable of calling into question its finding that the present concentration does not raise serious doubts as to its compatibility with the internal market (see, to that effect, judgment of 9 July 2007, Sun Chemical Group and Others v Commission, T‑282/06, EU:T:2007:203, paragraph 61 and the case-law cited).
352
It must be observed that the contested decision shows that RWE’s market shares prior to the concentration (in 2017) were limited, namely between 20% and 30% (more specifically [confidential]%) in the market for total electricity generation in Germany, between 30% and 40% (more specifically [confidential]%) in the market for conventional electricity generation in Germany and between 0% and 5% (more specifically [confidential]%) in the market for renewable electricity generation in Germany, and that the respective increases after the concentration of between 0% and 1% (namely [confidential]%), between 0% and 1% (namely [confidential]%) and between 0% and 1% (namely [confidential]%) in those markets are limited (paragraphs 27 to 29 of the contested decision). The increase is even smaller since some of Innogy’s generation assets will be transferred to E.ON on a permanent basis after concentration M.8870, so that the increase in RWE’s market shares after the concentration will be [confidential]%, [confidential]% and [confidential]% in those respective markets (paragraphs 33 and 34 of the contested decision).
353
With regard to the generation of electricity from renewable sources, the Commission correctly concluded, on the basis of the market shares, that that generation was fragmented, that it was divided among a large number of suppliers, and that with [confidential] TWh in 2017, RWE had a share of between 0% and 5%, namely less than [confidential]%, and that the E.ON assets were even less significant, that is to say [confidential] TWh, or between 0% and 1%, namely [confidential]% (paragraph 29 of the contested decision). The Commission also found, in relation to total installed capacity, that RWE had a share of between 0% and 5%, namely [confidential]%, and that the generation capacity from renewable energy sources of the E.ON assets amounted to around [confidential] MW, which represents between 0% and 1%, approximately [confidential]%, of Germany’s installed generation capacity from renewable energy sources (footnote 31 of the contested decision).
354
As is apparent from paragraphs 290, 292 and 321 above, the Commission concluded, without committing a manifest error of assessment, that the increment in RWE’s market shares on account of the concentration was limited and temporary.
355
In view of the foregoing, even if the Commission omitted to analyse certain elements which are required by paragraph 27 of the Guidelines, such omissions are not capable of calling into question the Commission’s conclusion that the concentration does not raise serious doubts as to its compatibility with the internal market.
356
Moreover, the applicant is mistaken as to the scope of paragraph 27 of the Guidelines. The Guidelines mention as competitive elements to be examined in the context of non-coordinated effects, first, whether the merging parties are close competitors (paragraphs 28 to 30), second, whether the merged entity is able to hinder expansion by competitors (paragraph 36) or, third, whether the merger eliminates an important competitive force (paragraphs 37 and 38).
357
In that regard, first, it is sufficient to recall that the merging parties are RWE and the E.ON assets, not RWE and E.ON, with the result that E.ON will not disappear as a result of the concentration. Second, the applicant appears to claim that RWE and E.ON are close competitors and that they could hinder expansion by other competitors. However, the issue is, on the one hand, whether the E.ON assets acquired by RWE and RWE are close competitors and, on the other hand, whether the E.ON assets acquired by RWE and RWE can hinder expansion by competitors. However, the applicant starts from the incorrect premiss that RWE acquired the whole of E.ON through its minority shareholding, which is incorrect, as is established in paragraphs 366 to 391 below.
358
Third, as regards the elimination, on account of the concentration, of the competitive pressure on RWE exerted by E.ON, it must be observed that the mere reduction in competitive pressure which would result, inter alia, from the elimination of an undertaking with a more important role than its market shares would suggest is not in itself sufficient to prove a significant impediment to effective competition.
359
In that regard, it must be observed that the reduction in E.ON’s generation capacity is not solely a consequence of the concentration.
360
On the one hand, it must be observed, without that point being challenged by the applicant, that E.ON had already independently taken the decision to transfer essential parts of its conventional electricity generation business, with the exception mainly of the capacity of the nuclear power plants, to its former subsidiary Uniper, and to sell its share in the latter’s capital to Fortum.
361
On the other hand, the German legislature had decided to phase out E.ON’s nuclear power plants by the end of 2022 at the latest, so that, even if E.ON had retained those assets, it would no longer have been able to operate them from that date. Accordingly, E.ON’s power generation business had already declined significantly before the concentration and was set to decline further.
362
Moreover, it can be inferred from table 1 of the contested decision that only approximately [confidential] of E.ON’s total generation in 2017 was to be acquired by RWE. In relation to conventional energy, the share of E.ON’s total generation in 2017 acquired by RWE was to be only approximately [confidential] (table 2 of the contested decision). As regards renewable energy, RWE was to acquire four-sevenths of E.ON’s generation (table 3 of the contested decision). Accordingly, E.ON does not disappear as a competitor following the concentration.
363
Therefore, although E.ON’s importance on the market for the generation and wholesale supply of electricity is decreasing, that is not exclusively related to the concentration, but also stems from other transactions undertaken by that operator.
364
Furthermore, it must also be observed that the Commission took into account criteria that went beyond market shares (paragraph 48 et seq. of the contested decision). Accordingly, although the Commission assessed the competitive relationship between E.ON and RWE primarily on the basis of the analysis of market shares, the fact remains that the Commission examined other elements such as RWE’s pivotality or withholding capacities (see paragraph 267 above), as well as RWE’s minority shareholding in E.ON (see paragraph 372 below).
365
It follows from the foregoing that the Commission has not disregarded paragraph 27 of the Guidelines.
(3) RWE’s decisive influence on E.ON
366
The applicant submits not only that the shareholding in E.ON gives RWE decisive influence over important corporate decisions, but that the effect and the real purpose of the overall transaction is rather to enable RWE to control E.ON’s operational activities and specifically to exclude E.ON on a lasting basis from competition in respect of generation, thereby excluding the possibility of E.ON again becoming a producer and a competitor of RWE. Accordingly, RWE could restrict competition and strengthen its generation position by means of its influence as a shareholder of E.ON.
367
As a preliminary point, it must be observed that, in the context of the judicial review of the merits of the contested decision, the Court is required to examine not whether the influence exercised by RWE over E.ON was decisive, within the meaning of Article 3 of Regulation No 139/2004, but only whether RWE was capable of exercising decisive influence over E.ON (see paragraph 76 of the contested decision), with the result that the concentration could significantly impede effective competition within the meaning of Article 2(3) of Regulation No 139/2004.
368
In that regard, as recalled in paragraph 114 above, when a textual interpretation of a provision of EU law does not permit its precise scope to be assessed, the provision in question must be interpreted by reference to its purpose and general structure.
369
As regards the objectives pursued by Regulation No 139/2004, it appears from recitals 5 and 6 thereof that the regulation seeks to ensure that the process of reorganisation of undertakings does not result in lasting damage to competition. According to those recitals, EU law must therefore include provisions governing those concentrations that may significantly impede effective competition in the internal market or in a substantial part of it and permitting effective control of all concentrations in terms of their effect on the structure of competition in the European Union. Accordingly, that regulation should apply to significant structural changes the impact of which on the market goes beyond the national borders of any one Member State (judgment of 7 September 2017, Austria Asphalt, C‑248/16, EU:C:2017:643, paragraphs 20 and 21).
370
From the point of view of competition, minority shareholdings in competitors may also lead to coordinated anti-competitive effects by impacting a market participant’s ability and incentive to tacitly or explicitly coordinate in order to achieve supra-competitive profits.
371
Accordingly, the Commission is required to verify, in the context of the analysis of the concentration, whether the minority shareholding in E.ON acquired by RWE may result in a significant impediment to effective competition in the internal market or in a substantial part of it.
372
In the present case, the Commission analysed, in the contested decision, first, horizontal effects, namely the reduction of RWE’s and E.ON’s incentives to compete in the market for the generation and wholesale supply of electricity, and, secondly, vertical effects, defined as RWE’s and E.ON’s ability or incentive to foreclose upstream and downstream competitors (paragraphs 75 and 79 to 95 of the contested decision).
373
The Commission, RWE and E.ON refer to the investor relationship agreement concluded between RWE and E.ON so as to minimise the influence which RWE could have on E.ON following the acquisition of a 16.67% minority shareholding.
374
First, it follows from that agreement that the voting rights which can be exercised by RWE are limited to 16.67% at shareholders’ meetings, irrespective of the turnout (paragraph 76 of the contested decision).
375
That limitation could have led the Commission to conclude, without committing a manifest error of assessment, that RWE would not have any significant influence on the day-to-day operation of E.ON’s generation assets (paragraph 81 of the contested decision). In that regard, even if RWE becomes, as a result of that shareholding, E.ON’s largest shareholder and E.ON’s share ownership is fragmented, the fact remains that RWE’s voting rights will always be limited to the size of its shareholding, regardless of the number of shares represented in the voting at the shareholders’ meeting, which effectively prevents RWE from taking strategic decisions, and even from obtaining negative control over E.ON by means of a blocking minority in the shareholders’ meeting.
376
The dispersion of the shareholdings in E.ON cannot challenge that assessment. Even though the turnout at general meetings may be lower where the ownership of an undertaking is fragmented, RWE’s voting rights will always be limited to 16.67%.
377
Moreover, by means of that agreement, RWE undertakes not to exercise its voting rights jointly with other minority shareholders, not to acquire additional shares, not to change the legal or financial structure or management of E.ON and not to use its voting rights against the administrative board or the supervisory board.
378
All those limitations on the exercise of RWE’s corporate rights restrict the influence which RWE is capable of exercising over E.ON.
379
The applicant wrongly considers that the investor relationship agreement is irrelevant because of its contractual nature.
380
In that regard, it must be observed that, in the context of the application of Article 3(2) of Regulation No 139/2004, control is to be constituted by rights, contracts or any other means which confer the possibility of exercising decisive influence. By contrary inference, the lack of possibility of exercising decisive influence may arise from contractual provisions. By analogy, the existence or absence of a decisive influence capable of contributing to the creation of a significant impediment to effective competition for the purposes of Article 2(3) of Regulation No 139/2004 must be capable of deriving from a contractual provision.
381
In any event, and irrespective of the treatment of that agreement under German law, non-compliance with the investor relationship agreement or a modification of that agreement, to the extent that that non-compliance would enable RWE to acquire a decisive influence over E.ON, in fact or in law, should be examined as a new concentration subject to the notification obligation under Article 4(1) of Regulation No 139/2004.
382
Thus, the argument that RWE would obtain a decisive influence over E.ON following the acquisition of the minority shareholding, in view of the fact that RWE would become E.ON’s largest individual shareholder and that E.ON’s ownership is fragmented, is not supported by the facts. Consequently, the applicant fails to demonstrate that the Commission committed a manifest error of assessment in that regard.
383
Second, as regards the impact of low attendance at general meetings on RWE’s ability to influence E.ON, it is sufficient to note that the limitation on RWE’s voting rights imposed by the investor relationship agreement prevents RWE from exercising a decisive influence on a general meeting of E.ON. Even if, as the applicant claims, the average turnout at E.ON general meetings in the seven years preceding the concentration was only 38.35%, the voting rights exercisable by RWE would amount to no more than 6.39% of E.ON’s share capital. The argument that a common history and culture and the overlapping of their activities in the market are indications that RWE pursues strategic interests in E.ON, and not only financial interests, is irrelevant in the light of the provisions of the investor relationship agreement.
384
Third, the applicant claims that the Commission did not properly examine the collective influence exerted by RWE and [confidential]. In that regard, the applicant argues that [confidential] held, at the time of the adoption of the contested decision, approximately 6.5% of the shares in E.ON and approximately 6.18% of the shares in RWE.
385
It must be observed that ‘common shareholdings’, in other words the possession by the same institutional investors of shares in competing undertakings and their non-coordinated competitive effects, have recently been taken into consideration by the Commission.
386
In its decision-making practice, the Commission considered that, in the presence of common shareholding, which was a reality in some sectors, concentration measures, such as market shares or the HHI, were likely to underestimate the level of concentration of the market structure and, thus, the market power of the parties. Accordingly, common shareholding in those industries were to be taken as an element of context in the appreciation of any significant impediment to effective competition (see, by way of examples, Commission Decision C(2017) 1946 final of 27 March 2017 declaring a concentration compatible with the internal market and with the functioning of the EEA Agreement (Case M.7932 – Dow/DuPont), paragraphs 4 and 81, and Commission Decision C(2018) 1709 final of 21 March 2018 declaring a concentration compatible with the internal market and with the functioning of the EEA Agreement (Case M.8084 – Bayer/Monsanto), paragraphs 224 and 3303).
387
However, even if the reduction in competitive pressures on other competitors may result from a common shareholding, the effect of that reduction alone is not, in principle, on its own, sufficient to demonstrate a significant impediment to effective competition, in the context of a theory of harm based on non-coordinated effects.
388
In the present case, the applicant has not put forward any evidence to support the plausibility of the existence of any coordination between [confidential] and RWE at E.ON general meetings. In that regard, the applicant does not explain to what extent [confidential] is involved in the management of E.ON or RWE. Even assuming that an ability to influence the management of E.ON or RWE has been established, the applicant still has to identify indicative factors capable of establishing that the presence of [confidential] in the capital of RWE and E.ON amounts to evidence that there is already a tendency to collective dominance (see, to that effect, judgment of 6 June 2002, Airtours v Commission, T‑342/99, EU:T:2002:146, paragraph 91).
389
The Commission’s failure to mention such a relationship cannot therefore constitute a manifest error of assessment on its part.
390
Fourth, as regards the influence on the composition of the administrative and supervisory boards, it must be observed that, according to Article 12(3) of E.ON’s articles of association, resolutions of E.ON’s supervisory board are adopted by a simple majority of the votes cast and that no resolution of E.ON’s supervisory board requires a qualified majority in order to be adopted. With one member out of fourteen, RWE has only very limited weight on E.ON’s supervisory board and is therefore not in a position to veto the adoption of resolutions of E.ON’s supervisory board. As for the administrative board, the members of which are appointed by the supervisory board, it is sufficient to note that, since RWE does not control the supervisory board, nor does it control the administrative board.
391
It must therefore be held that the Commission did not commit a manifest error of assessment as regards the influence which RWE has over E.ON on account of the acquisition of a minority shareholding.
(4) The sharing of the electricity markets decided upon by RWE and E.ON
392
The applicant submits in essence that, by means of the overall transaction, RWE and E.ON shared the value-added stages in the German electricity market, which constitutes a restriction of competition in breach of Article 101 TFEU.
393
It must be observed that, as follows from Article 21(1) of Regulation No 139/2004, that regulation alone is to apply to concentrations as defined in Article 3 of the regulation, to which Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101] and [102 TFEU] (OJ 2003 L 1, p. 1) is not, in principle, applicable. By contrast, Regulation No 1/2003 continues to apply to the actions of undertakings which, without constituting a concentration within the meaning of Regulation No 139/2004, are nevertheless capable of leading to coordination between undertakings in breach of Article 101 TFEU and which, for that reason, are subject to the control of the Commission or of the national competition authorities (judgment of 7 September 2017, Austria Asphalt, C‑248/16, EU:C:2017:643, paragraphs 32 and 33).
394
The fact that the subject matter of the contested decision concerns a concentration is not disputed. In the light of the foregoing, the argument alleging an infringement of Article 101 TFEU is ineffective.
(5) Conclusion
395
It follows from all the foregoing that the Commission did not commit a manifest error of assessment in evaluating the relationship between RWE and E.ON and the way in which that relationship may change as a result of the concentration and, consequently, may have an effect on competition in the internal market. The applicant’s complaint that the relationship between RWE and E.ON was incorrectly assessed must therefore be rejected.
(f)
Conclusion on the fifth plea in law
396
In the light of all the foregoing, it must be concluded that, contrary to the applicant’s submissions, the Commission has not committed any manifest errors of assessment in defining the relevant market, in defining the period of analysis, in assessing RWE’s market power or in assessing the relationship between RWE and E.ON. Therefore, the Commission concluded, without committing a manifest error of assessment, that the concentration did not raise serious doubts as to its compatibility with the internal market within the meaning of Article 6(1)(b) of Regulation No 139/2004.
397
The fifth plea in law must therefore be dismissed in its entirety.
7.
The sixth plea in law, alleging a breach of the duty of care
398
The applicant argues, in essence, that the Commission did not properly examine the facts, in breach of its duty of care. Accordingly, the Commission allegedly failed to ascertain, with caution and care, the circumstances likely to have an impact on the outcome of the decision-making process. Nor did it take account of the facts and the information provided by the parties and third parties taking part in the procedure or take other relevant parameters into consideration.
399
The Commission disputes the applicant’s arguments.
400
It should be borne in mind that, according to settled case-law, where the EU institutions have a discretion, as in the matter of the control of concentrations, respect for the safeguards guaranteed by the EU legal order in administrative procedures is of even more fundamental importance. Those safeguards include, in particular, the duty of the competent institution to examine carefully and impartially all the relevant aspects in the individual case, the right of the person concerned to make his views known and to have an adequately reasoned decision (judgments of 21 November 1991, Technische Universität München, C‑269/90, EU:C:1991:438, paragraph 14, and of 6 July 2010, Ryanair v Commission, T‑342/07, EU:T:2010:280, paragraph 31).
401
With regard to control of concentrations, the Commission, according to well-settled case-law, has a discretion, especially with respect to assessments of an economic nature. Respect by the Commission for the safeguards guaranteed by the EU legal order in administrative procedures, such as the duty of care which requires it to examine carefully and impartially all the relevant aspects in the individual case, is therefore even more important in that domain (judgment of 7 May 2009, NVV and Others v Commission, T‑151/05, EU:T:2009:144, paragraph 164).
402
Since the Commission is required to comply with the duty of care with regard to its actions in this area, it must determine with the necessary care the elements of fact and of law which are essential to the exercise of its discretion by gathering all the facts which are necessary in order to exercise that discretion and which might affect the result of the decision-making process. That duty implies, first, that the Commission must take account of the facts and the information provided to it by the notifying parties or by any third party taking an active part in the procedure, and, second, that it must, if necessary, seek to discover those facts through market investigations or requests for information from market operators (judgment of 7 May 2009, NVV and Others v Commission, T‑151/05, EU:T:2009:144, paragraph 165).
403
However, it should be pointed out that, in the control of concentrations, the Commission’s obligation to respect the rights guaranteed by the EU legal order in administrative procedures – hence also its obligation to comply with the duty of care – must, like compliance with the duty to state reasons, 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).
404
In the light of the findings made, inter alia, in the context of the fifth plea, it cannot be denied that the Commission examined with the necessary care all the relevant elements of fact and of law, since it took account of all the facts and the information provided both by the notifying party and by the third parties which took part in the procedure. The Commission also carried out its own research by means of the market test and requests for information from market operators. It is also clear from the contested decision that the Commission took account of the results of that research.
405
The sixth plea must therefore be dismissed.
C. The request for the appearance in person or, in the alternative, the examination of witnesses
406
On 30 May 2022, the applicant lodged with the Registry of the Court a request for the appearance in person at the hearing of A, the former Chairman of E.ON, B, the former Chairman of RWE, and C, the Director of the Eighth Decision Division of the Federal Competition Authority. In the alternative, it requested that the examination of those witnesses take place.
407
The Commission, E.ON and RWE object, in essence, to the appearance in person and, in the alternative, to the examination of the persons referred to in the preceding paragraph.
408
In that regard, it must be pointed out that the Court is the sole judge of any need to supplement the information available to it concerning the cases before it (see judgment of 22 November 2007, Sniace v Commission, C‑260/05 P, EU:C:2007:700, paragraph 77 and the case-law cited).
409
It therefore falls to the Court to assess, first, whether a request for the appearance in person or for the examination of witnesses is relevant to the subject matter of the dispute and, second, whether it is necessary to order the appearance in person or to examine the witnesses named (see, to that effect, judgment of 22 November 2007, Sniace v Commission, C‑260/05 P, EU:C:2007:700, paragraph 78 and the case-law cited).
410
In the present case, quite apart from the applicant’s failure to explain, in accordance with Article 88(2) of the Rules of Procedure, why those requests for measures of inquiry were submitted only after the written phase of the proceedings had been completed and merely two weeks before the hearing, as well as the imprecise nature of the requests, since the applicant did not indicate the specific matters in connection with which it was appropriate to hear those three persons, it must be observed that the information in the file and the explanations given at the hearing are sufficient to enable the Court to give its decision, since it was able to give a useful ruling on the basis of the forms of order sought, pleas in law and arguments developed in the course of the proceedings and having regard to the documents lodged by the parties.
411
It is therefore not necessary to grant the requests for measures of inquiry.
412
It follows from all the foregoing that the action must be dismissed.
Costs
413
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. Since the applicant has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the Commission, E.ON and RWE, in accordance with the forms of order sought by them.
414
Under Article 138(1) of the Rules of Procedure, the Member States and institutions which have intervened in the proceedings are to bear their own costs. The Federal Republic of Germany is therefore to bear its own costs.
On those grounds,
THE COURT (Fourth Chamber, Extended Composition)
hereby:
1.
Dismisses the action;
2.
Orders EVH GmbH to bear its own costs and to pay those incurred by the European Commission, E.ON SE and RWE AG;
3.
Orders the Federal Republic of Germany to bear its own costs.
Gervasoni
Madise
Nihoul
Frendo
Martín y Pérez de Nanclares
Delivered in open court in Luxembourg on 17 May 2023.
[Signatures]
Table of Contents
I. Background to the dispute
A. Undertakings in question
B. Context of the concentration
C. Administrative procedure
D. Contested decision
II. Forms of order sought
III. Law
A. Admissibility
B. Substance
1. Preliminary considerations
2. The first plea in law, alleging erroneous division of the analysis of the overall transaction into separate parts
(a) The scope of the first plea
(b) The review of concentration B8-28/19
(c) The existence of a single concentration
(1) The concept of ‘single concentration’
(2) Application in the present case
(i) The condition relating to the interdependence of the transactions in question
(ii) The condition relating to the result
(3) Concept of ‘single concentration’ and requirement for an overall assessment
(d) Conclusion
3. The second plea in law, alleging breach of the duty to state reasons
4. The third plea in law, alleging infringement of the applicant’s right to be heard
5. The fourth plea in law, alleging infringement of the right to effective judicial protection
6. The fifth plea in law, alleging manifest errors of assessment
(a) Preliminary considerations
(b) The first complaint, alleging an erroneous definition of the relevant market
(c) The second complaint, alleging an erroneous definition of the period of analysis
(d) The third complaint, alleging an erroneous assessment of RWE’s market power
(1) The elements taken into account by the Commission in its analysis of RWE’s market power
(2) The analysis of market shares
(3) RWE’s pivotality on the market for the generation and wholesale supply of electricity
(4) RWE’s incentives for capacity withholding strategies and other strategic uses of its generation portfolio
(5) RWE’s pivotality in the market for balancing and ancillary services
(6) Conclusion
(e) The fourth complaint, alleging an erroneous assessment of the relationship between RWE and E.ON
(1) The relationship of interdependence and the proximity between RWE and E.ON
(2) The elimination of E.ON on a lasting basis
(3) RWE’s decisive influence on E.ON
(4) The sharing of the electricity markets decided upon by RWE and E.ON
(5) Conclusion
(f) Conclusion on the fifth plea in law
7. The sixth plea in law, alleging a breach of the duty of care
C. The request for the appearance in person or, in the alternative, the examination of witnesses
Costs
(
*1
)	Language of the case: German.
(
1
)	Confidential data omitted.