62020CC0376
OPINION OF ADVOCATE GENERAL
KOKOTT
delivered on 20 October 2022 (
1
)
Case C‑376/20 P
European Commission
v
CK Telecoms UK Investments Ltd
(Appeal – Competition – Concentrations – Wireless telecommunications – Retail market for mobile telecommunication services – Market for wholesale access and call origination on public mobile networks – Acquisition of Telefónica Europe by Hutchison – Decision declaring the concentration incompatible with the internal market and the functioning of the Agreement on the European Economic Area (EEA) – Oligopolistic market – Significant impediment to effective competition – Non-coordinated effects – Burden of proof – Standard of proof – Commission’s margin of discretion with regard to economic matters – Scope of judicial review – Guidelines on the assessment of horizontal mergers – Concept of ‘important competitive force’ – Concept of ‘close competitors’ – Quantitative analysis of upward pricing pressure – Efficiencies – Network-sharing agreements – Distortion – Obligation to state reasons)
Table of contents
I. Introduction
II. The background to the dispute
A. The facts
B. The decision at issue
C. The judgment under appeal
III. The procedure before the Court of Justice and the forms of order sought
IV. Assessment
A. Preliminary observations
B. The first ground of appeal, alleging an error of law in that the General Court applied a stricter standard of proof than that recognised in the case-law
C. The second ground of appeal, alleging misinterpretation of Article 2(3) of Regulation No 139/2004
1. The first part of the second ground of appeal, alleging an error of law in that the General Court equated the conditions for establishing that the concentration at issue could give rise to non-coordinated effects with the conditions for establishing the existence of a dominant position
2. The second part of the second ground of appeal, alleging a restrictive interpretation of Article 2(3) of Regulation No 139/2004
D. The third ground of appeal, alleging, first, an error of law in that the General Court, in particular, exceeded the limits of judicial review in interpreting the concepts of ‘important competitive force’ and ‘close competitors’ and, second, a distortion of both the decision at issue and the defence at first instance
1. The first part of the third ground of appeal, alleging an error of law in that the General Court exceeded the limits of judicial review in interpreting the concepts of ‘important competitive force’ and ‘close competitors’
2. The second part of the third ground of appeal, alleging misinterpretation of the concept of ‘important competitive force’ and distortion of both the decision at issue and the defence at first instance
(a) The first complaint
(b) The second complaint
3. The third part of the third ground of appeal, alleging misinterpretation of the concept of ‘close competitors’ and a distortion of the decision at issue
(a) The first complaint
(b) The second complaint
4. The fourth part of the third ground of appeal, alleging infringement of the obligation to state reasons concerning any incompatibility of the Guidelines with Regulation No 139/2004
E. The fourth ground of appeal, alleging a distortion of the Commission’s arguments relating to its quantitative analysis and errors of law
1. The effectiveness of the fourth ground of appeal
2. The first part of the fourth ground of appeal, alleging a distortion of the Commission’s arguments concerning the possible price increase resulting from the concentration at issue and an error of law on the part of the General Court in its assessment of the quantitative analysis
3. The second part of the fourth ground of appeal, alleging an error of law in that the General Court required the Commission to include ‘standard’ efficiencies in its UPP analysis
F. The fifth ground of appeal, alleging an error of law in that the General Court failed to assess all the relevant factors and evidence
G. The sixth ground of appeal, alleging distortion of the decision at issue and breach of the obligation to state reasons
1. The effectiveness of the sixth ground of appeal
2. The first part of the sixth ground of appeal, alleging distortion of the decision at issue
3. The second part of the sixth ground of appeal, alleging breach of the obligation to state reasons
V. Referral of the case back to the General Court
VI. Conclusion
I. Introduction
1.
The present case provides the Court, following the judgments in Commission v Tetra Laval (
2
) and Bertelsmann and Sony Corporation of America v Impala, (
3
) with a further opportunity to clarify questions of principle concerning the requirements governing the taking of evidence and the burden and standard of proof to which the European Commission is subject in the area of merger control, and concerning the scope of the review which the EU Courts are called upon to carry out in that regard.
2.
More specifically, in those judgments, the Court had occasion to rule on those requirements in the context of concentrations giving rise to the creation or strengthening of the merged entity’s dominant position being of a ‘conglomerate’ type or a ‘collective’ type. By contrast, the present case is the first concerning a concentration in an oligopolistic market which, according to the Commission, results in a significant impediment to effective competition, for the purposes of Article 2(3) of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation), (
4
) on account of ‘non-coordinated’ or ‘unilateral’ horizontal effects, that is to say where the merged entity does not have a dominant position. It follows that this case is also the first in which the Court has had the opportunity to clarify the scope of the concept of ‘significant impediment to effective competition’ in so far as that concept is founded on such non-coordinated or unilateral effects. That concept was at the heart of the reform initiated by the adoption of Regulation No 139/2004, as evidenced, in particular, by recitals 25 and 26 thereof, and by paragraph 24 et seq. of the Commission Guidelines on the assessment of horizontal mergers under the Council Regulation on the control of concentrations between undertakings (‘the Guidelines’). (
5
)
3.
In the present case, by its appeal, the Commission asks the Court of Justice to set aside the judgment of the General Court of the European Union of 28 May 2020, CK Telecoms UK Investments v Commission (‘the judgment under appeal’), (
6
) by which the General Court annulled Commission Decision C(2016) 2796 final of 11 May 2016 declaring incompatible with the internal market the concentration resulting from the acquisition of Telefónica Europe plc by Hutchison 3G UK Investments Ltd (‘the decision at issue’). (
7
) According to the General Court, the Commission, in essence, disregarded the standard of proof applicable to the control of concentrations giving rise to non-coordinated effects on an oligopolistic market. In its appeal, the Commission is arguing, in essence, that both that standard of proof applied by the General Court and the scope of the review which it carried out in that regard are incompatible with the relevant criteria set out in the case-law of the Court of Justice, in particular in the judgment of 10 July 2008, Bertelsmann and Sony Corporation of America v Impala. (
8
)
II. The background to the dispute
A.
The facts
4.
The General Court set out the background to the dispute in paragraphs 1 to 25 of the judgment under appeal, which, for the purposes of the present appeal proceedings, may be summarised as set out below.
5.
On 11 September 2015, the Commission received notification, in accordance with Article 4 of Regulation No 139/2004, of a proposed concentration whereby CK Hutchison Holdings Ltd was to acquire, through the intermediary of its indirect subsidiary Hutchison 3G UK Investments, which became the applicant at first instance, CK Telecoms UK Investments Ltd (‘CK Telecoms’), in accordance with Article 3(1)(b) of that regulation, sole control over Telefónica Europe (‘O2’).
6.
At the time of the facts which gave rise to the present case, there were, on the retail market for mobile telecommunication services in the United Kingdom (‘the retail market’), four mobile network operators: EE Ltd, which is a subsidiary of BT Group plc, acquired by BT Group in 2016 (together ‘BT/EE’), O2, Vodafone and Hutchison 3G UK Ltd (‘Three’), an indirect subsidiary of CK Hutchison Holdings, whose market shares, in terms of subscribers, were approximately [between 30 and 40%], [between 20 and 30%], [between 10 and 20%], and [between 10 and 20%] respectively. The concentration which is the subject of the present dispute (‘the concentration at issue’) would have enabled the merged entity, consisting of Three and O2 (together ‘the parties to the concentration’ or ‘the merging parties’) to account for approximately [between 30 and 40%] of the retail market and accordingly to become the main player on that market, ahead of the former legacy operator BT/EE and Vodafone.
7.
In addition to those mobile network operators, the retail market also included several mobile virtual network operators, such as Tesco Mobile, Virgin Mobile and TalkTalk, which did not own the networks they used in order to provide mobile services to United Kingdom consumers and which had therefore concluded agreements with one or other mobile network operator so as to have access to its network at wholesale prices. Tesco Mobile was owned in equal shares by Tesco and O2. The retail market also included branded resellers (together with the mobile virtual network operators referred to as ‘non-MNOs’) and independent retailers, such as Dixons.
8.
One particular characteristic of the retail market was that BT/EE and Three, on the one hand, and Vodafone and O2, on the other, had consolidated their networks through network-sharing agreements. That has enabled BT/EE and Three (under the MBNL joint venture, ‘MBNL’) and Vodafone and O2 (under the ‘Beacon’ agreements, ‘Beacon’), to share the costs of rolling out their respective networks while continuing to compete on retail trade.
9.
On 2 October 2015, the United Kingdom of Great Britain and Northern Ireland requested, through the intermediary of its national competition authority, the Competition and Markets Authority (CMA), that the concentration at issue be referred to it, pursuant to Article 9(2)(a) of Regulation No 139/2004. In that request, the United Kingdom expressed the view that the concentration threatened significantly to impede competition on the retail market and on the market for wholesale access and call origination on public mobile networks in the United Kingdom (‘the wholesale market’). The United Kingdom also considered that it was the best placed to deal with the concentration at issue.
10.
On 4 December 2015, the Commission adopted Decision C(2015) 8534 final concerning Article 9 of Regulation No 139/2004 in Case M.7612 Hutchison 3G UK/Telefónica UK, by which it rejected that referral request. In that decision, it considered in particular that it was necessary for it to ensure a coherent and consistent approach when assessing mergers in the telecommunications sector in various Member States and it also referred to the considerable expertise it had gained in the assessment of concentrations in the European mobile telecommunications markets.
11.
After the phase I investigation, the Commission concluded that the transaction raised serious doubts as to its compatibility with the internal market and on 30 October 2015 the Commission adopted a decision to initiate the procedure under Article 6(1)(c) of Regulation No 139/2004.
12.
On 4 February 2016, on the basis of the phase II investigation, which supplemented the findings of the phase I investigation, the Commission issued a Statement of Objections. CK Telecoms submitted its written observations on the Statement of Objections on 26 February 2016.
13.
In order to address the competition concerns identified in the Statement of Objections, CK Telecoms submitted a first set of commitments on 2 March 2016.
14.
At that company’s request, an oral hearing was held on 7 March 2016.
15.
On 15 March 2016, CK Telecoms submitted revised commitments (‘the Second Commitments’). On 18 March 2016 the Commission launched a market test of the Second Commitments, in which it consulted, first, current and potential providers of mobile telecommunication services in the United Kingdom, providers of infrastructure services in the mobile telecommunications sector, and the associations MVNO Europe and iMVNOx and, second, national telecommunications regulators, including the United Kingdom telecommunications regulatory authority (Ofcom). In addition, the national competition authorities of the United Kingdom, Germany, and the Netherlands provided their views on the Second Commitments.
16.
On 17 and 23 March 2016, the Commission sent CK Telecoms letters in which it pointed to additional evidence in its file in support of the preliminary findings of the Statement of Objections. On 29 March and 4 April 2016 CK Telecoms submitted written observations on the letters of facts of 17 and 23 March 2016 respectively.
17.
On 6 April 2016, following the market test, that company submitted a further revised set of commitments.
18.
The Advisory Committee on Concentrations discussed the draft of the Commission’s decision on 27 April 2016 and issued a favourable opinion.
19.
On 11 May 2016, the Commission adopted the decision at issue.
B.
The decision at issue
20.
In the decision at issue, the Commission defined two relevant markets: the retail market and the wholesale market.
21.
The Commission developed three theories of harm, all of which were based on the existence of ‘non-coordinated’ effects on an oligopolistic market.
22.
The first two theories of harm relate to the retail market, while the third relates to the wholesale market.
23.
More specifically, the first theory of harm relates to the existence of non-coordinated effects on the retail market arising from the elimination of important competitive constraints. In essence, according to the Commission, the sharp reduction in competition which would have resulted from the concentration at issue would probably have led to an increase in prices for mobile telephony services in the United Kingdom and a restriction of choice for consumers.
24.
According to the second theory of harm, which relates to the existence of non-coordinated effects on the retail market relating to network sharing, the transaction would also be likely to have a negative influence on the quality of services for United Kingdom consumers, hindering the development of mobile network infrastructure in the United Kingdom.
25.
The third theory of harm relates to the existence of non-coordinated effects arising from the elimination of important competitive constraints on the wholesale market. On that market, the four mobile network operators provide hosting services to non-MNOs, which in turn offer retail services to subscribers. In particular, according to the Commission, the concentration at issue is likely to have significant non-coordinated effects on the wholesale market resulting from a reduction in the number of mobile network operators from four to three, the elimination of Three as an important competitive force, the removal of important competitive constraints which the parties had previously exerted upon each other, and a reduction of competitive pressure on the remaining players.
26.
As regards the efficiencies alleged by CK Telecoms, the Commission found that they were neither verifiable nor specific to the concentration at issue and were unlikely to benefit consumers.
27.
In the final section of the decision at issue, the Commission examined the remedies proposed by CK Telecoms in the form of commitments. The Commission found that the Second Commitments did not eliminate the competition concerns identified and that the third set of commitments, proposed on 6 April 2016, did not eliminate the competition concerns identified and were neither comprehensive nor effective in all respects.
28.
Consequently, the Commission declared the concentration at issue to be incompatible with the internal market.
C.
The judgment under appeal
29.
By application lodged at the Registry of the General Court on 25 July 2016, CK Telecoms brought an action for annulment of the decision at issue.
30.
In support of that action, CK Telecoms relied on five pleas in law disputing, in turn, the three theories of harm developed in the decision at issue and the conclusions drawn by the Commission regarding the commitments given in order to address the Commission’s concerns.
31.
The first and fourth pleas at first instance related to the first and third theories of harm developed in the decision at issue, which concern the elimination of competition between Three and O2 in the retail market (the first plea) and in the wholesale market (the fourth plea) respectively. The second plea related to the Commission’s assessment of the counterfactual scenario, on which it based its evaluation of the retail and wholesale markets. The third plea related to the Commission’s second theory of harm, which concerns the retail market, in relation to network sharing, and CK Telecoms’ commitments in relation to network sharing. The fifth plea concerned the other commitments offered by CK Telecoms.
32.
In the judgment under appeal, the General Court annulled the decision at issue in its entirety, in essence on the ground that the Commission had failed to meet the standard of proof concerning the demonstration of coordinated effects giving rise to a significant impediment to effective competition, for the purposes of Article 2(3) of Regulation No 139/2004. To that end, the General Court upheld some of the complaints in the second part of the first plea, relating to Three being classified as an ‘important competitive force’, and the third and fifth parts of that plea, relating, respectively, to the assessment of the closeness of competition and to the quantitative effects of the concentration on prices. The General Court also upheld the first, third, fourth, fifth and sixth parts of the third plea, relating to (i) the need for and extent of alignment between the parties to the network-sharing agreements, (ii) Three’s ability to delay or frustrate BT/EE’s unilateral deployments, (iii) the Commission’s consideration of whether the concentration would harm competitors as opposed to competition, (iv) the harm to the competitive position of other mobile network operators and (v) the effect on overall network investments from increased transparency. Finally, the General Court upheld the first three parts of the fourth plea, relating to non-coordinated effects on the wholesale market.
III. The procedure before the Court of Justice and the forms of order sought
33.
By document lodged at the Registry of the Court of Justice on 7 August 2020, the Commission brought the present appeal.
34.
By a further document lodged on that date, the Commission asked the Court of Justice to grant confidential treatment, vis-à-vis EE only, being one of the two interveners at first instance, to certain passages of that appeal which contained information constituting business secrets and which corresponded to information for which the General Court had granted confidential treatment at first instance. By order of 1 October 2020, Commission v CK Telecoms UK Investments, (
9
) the President of the Court of Justice granted that request.
35.
By document lodged at the Court Registry on 20 November 2020, CK Telecoms asked the Court of Justice to grant confidential treatment, vis-à-vis EE only, to certain information contained in its response which constituted business secrets and which, for that reason, ought not be disclosed to EE, the latter being a competitor of CK Telecoms, and which corresponded to information for which the General Court had granted confidential treatment at first instance vis-à-vis EE. By order of 26 January 2021, Commission v CK Telecoms UK Investments, (
10
) the President of the Court granted confidential treatment, vis-à-vis EE, in relation to that pleading.
36.
By document lodged at the Court Registry on 24 March 2021, the EFTA Surveillance Authority applied for leave to intervene in the present case in support of the form of order sought by the Commission. By order of 4 June 2021, Commission v CK Telecoms UK Investments, (
11
) the President of the Court allowed the EFTA Surveillance Authority to submit its observations at the hearing.
37.
The Commission, supported by the EFTA Surveillance Authority, claims that the Court should:
–
set aside the judgment under appeal;
–
refer the case back to the General Court;
–
order CK Telecoms to pay the costs of the present appeal; and
–
reserve the costs of the proceedings at first instance.
38.
CK Telecoms contends that the Court should:
–
dismiss the appeal; and
–
order the Commission and the interveners to pay the costs of the proceedings both before the General Court and the Court of Justice.
39.
On 5 May 2022, the Court put written questions to the parties and to the EFTA Surveillance Authority, and invited them to respond to those questions in part in writing, which they did within the prescribed period, and in part at the hearing.
40.
The parties and the EFTA Surveillance Authority presented oral argument and answered the questions put by the Court at the hearing held on 14 June 2022.
IV. Assessment
A.
Preliminary observations
41.
The present case is the first case in which the Court has been given the opportunity to provide a ruling on the concept of ‘significant impediment to effective competition’, in so far as it is based on non-coordinated effects, and to provide clarification both concerning the standard of proof which the Commission is required to meet for the purposes of applying that concept and concerning the scope of the review of legality which the EU Courts are called upon to carry out in that regard.
42.
In the present case, it is common ground that the concentration at issue did not lead to the creation or strengthening of a dominant position on the relevant markets, all of which have an oligopolistic structure. However, according to the decision at issue, the concentration at issue is likely to give rise to non-coordinated effects which are, in principle, sufficient to satisfy the concept of ‘significant impediment to effective competition’ for the purposes of Article 2(3) of Regulation No 139/2004. In order to establish the existence of such an impediment resulting from non-coordinated effects, the Commission relied in the decision at issue on three theories of harm relating to the relevant retail and wholesale markets (see points 21 to 25 above).
43.
That approach by the Commission having, to a large extent, been criticised by the General Court, the Commission puts forward six grounds of appeal, alleging, in essence, (i) an error of law in that the General Court applied a stricter standard of proof than that recognised by the Court of Justice, (ii) a misinterpretation of the concept of ‘significant impediment to effective competition’ referred to in Article 2(3) of Regulation No 139/2004, (iii) an error of law in that the General Court exceeded the limits of judicial review when interpreting the concepts of ‘important competitive force’ and ‘close competitors’ and erroneously adopted an interpretation based on a distortion of both the decision at issue and the defence lodged before the General Court, (iv) a distortion of the Commission’s arguments concerning its quantitative analysis of upward pricing pressure (‘the quantitative analysis’ or ‘the UPP analysis’) and errors of law by the General Court in its assessment of that analysis, (v) an error of law in that the General Court failed to assess all the relevant factors and evidence and, (vi) a distortion of the decision at issue as regards the analysis of a possible degradation of the quality of the merged entity’s network and a breach of the obligation to state reasons.
44.
The Commission takes the view that each of those alleged errors of law is sufficient in itself to lead to the judgment under appeal being set aside. However, in view of the importance of the issues raised by the present case and the fact that it should be referred back to the General Court, the Commission invites the Court of Justice to clarify as many of the legal issues raised as possible, so that the General Court has the guidance necessary to give final judgment in the case.
45.
The first to third grounds of appeal, concerning, respectively, the standard of proof and the scope of the concept of ‘significant impediment to effective competition’ therefore lie at the heart of the present appeal proceedings. In that regard, accurate determination of the requirements governing evidence of the existence of non-coordinated effects, on the one hand, and the review which the EU Courts are meant to carry out concerning the application of that concept, on the other hand, interact with one another and may anticipate, at least in part, the responses which are to be given in respect of the various parts of those grounds of appeal. Such clarification appears all the more important as it is clear from the exchanges of arguments between the parties, including at the hearing, that the concept of ‘significant impediment to effective competition’, the scope of the judicial review as concerns how the Commission applied it and the standard of proof relating thereto are likely to be unduly conflated or even confused. (
12
)
B.
The first ground of appeal, alleging an error of law in that the General Court applied a stricter standard of proof than that recognised in the case-law
46.
By its first ground of appeal, the Commission argues that, in holding in paragraph 118 of the judgment under appeal that the Commission was required to produce sufficient evidence to demonstrate with a ‘strong probability’ the existence of a significant impediment to effective competition, the General Court erred in law in applying a stricter standard of proof than that recognised in the case-law of the Court of Justice in the area of merger control. In addition, by its second ground of appeal, the Commission alleges that the General Court erred in law, first, by equating the conditions which must be fulfilled in order to find that the concentration at issue was likely to give rise to non-coordinated effects with the conditions which must be fulfilled in order to demonstrate the existence of a dominant position (first part) and, second, by interpreting too restrictively Article 2(3) of Regulation No 139/2004 (second part).
47.
As a preliminary point, it is necessary to reject CK Telecoms’ argument that the appeal and in particular the first ground of the appeal are ineffective on the ground that the Commission has not called into question the General Court’s findings criticising the Commission for misapplying the concept of a ‘significant impediment to effective competition’, in particular the ‘significant’ nature of that impediment allegedly caused by the non-coordinated effects in question, including in relation to the assessment of the concepts of ‘important competitive force’ and ‘close competitors’. As the Commission correctly submits, it is apparent, in particular, from paragraphs 119, 172, 216, 281 and 396 of the judgment under appeal, that the standard of proof adopted in paragraph 118 of that judgment constitutes the very basis for the General Court’s subsequent assessment of the facts and evidence relevant to its conclusion that the Commission failed to demonstrate, to the requisite legal standard, the existence of a significant impediment to effective competition, and the same also applies to the reasoning, in that judgment, concerning the concepts of ‘important competitive force’ and ‘close competitors’, which are the subject matter of the third ground of appeal.
48.
In the first place, it is important to recall, as the General Court also does in paragraph 81 et seq. of the judgment under appeal, that the concept of ‘significant impediment to effective competition’, for the purposes of Article 2(2) and (3) of Regulation No 139/2004, was fundamentally modified with the adoption of that regulation, as evidenced by recitals 25 and 26 thereof. Under the previous provision, that is to say Article 2(2) and (3) of Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings, (
13
) that concept was still closely linked to the creation or strengthening of a dominant position. (
14
) In other words, as is clear from those recitals of Regulation No 139/2004, the criterion of ‘dominance’ as a result of which effective competition would be significantly impeded has been replaced by a broader criterion of ‘significant impediment to effective competition’, which includes not only the concept of dominance, but also that of non-coordinated effects on oligopolistic markets.
49.
However, it does not follow from any legislation or case-law that that new, broader concept of ‘significant impediment to effective competition’ is easier or more difficult for the Commission to apply nor that evidence of a lesser degree of harm to competition is sufficient to allow the Commission to prohibit a concentration under Article 2(3) of Regulation No 139/2004. On the contrary, both before and after the 2004 reform, the Commission was and continues to be required to establish a ‘significant impediment to effective competition’, irrespective of whether or not that impediment was or is the consequence of a dominant position.
50.
In the second place, it follows that the scope of judicial review as regards application of the concept of ‘significant impediment to effective competition’, which is a concept of law, must be the same, irrespective of the type of concentration concerned which may give rise to such an impediment.
51.
In that regard, the case-law has clarified the criteria governing the judicial review of complex, including forward-looking, economic assessments by the Commission in the context of merger control. The Commission has a margin of discretion with regard to economic matters for the purposes of applying the substantive rules of Regulation No 139/2004, in particular Article 2. It follows that the review by the EU Courts of a Commission decision relating to concentrations is confined to ascertaining that the facts have been accurately stated and that there has been no manifest error of assessment. Accordingly, the EU Courts must not substitute their own economic assessment for that of the Commission for the purposes of applying those rules, even though that does not mean that the EU Courts must refrain from reviewing the Commission’s interpretation of information of an economic nature. (
15
)
52.
The principles set out in the preceding point are without prejudice to the clarifications made by the Court of Justice regarding the burden of proof, the taking of evidence and the standard of proof, (
16
) where the Commission exercises its margin of discretion, (
17
) which I shall discuss below. Moreover, in the judgment under appeal, those principles were not expressly applied by the General Court, which confined itself to ruling, first, on the ‘scope of the change made by Regulation No 139/2004’, (
18
) and, second, on the ‘burden of proof and standard of proof in relation to concentrations’. (
19
) The fact remains that, in the judgment under appeal, the General Court departed in a number places from the concept of ‘manifest error of assessment’ and held that mere ‘errors of assessment’ had been made. (
20
) Even though the Commission did not directly challenge that approach in its appeal, with the result that it cannot be further examined in the present case, it is in itself an indication that the General Court has carried out a more far reaching judicial review than that described in point 51 above.
53.
In the third place, it is necessary to examine more closely the criteria governing the burden of proof, the taking of evidence and the standard of proof which the EU Courts must require the Commission to apply when it prohibits a concentration on the ground of a significant impediment to effective competition resulting from non-coordinated effects on an oligopolistic market.
54.
In that regard, I consider that two considerations of principle apply, the first of which does not appear to me to have been called into question by any of the parties, in particular at the hearing.
55.
First, as is apparent from the judgment of 10 July 2008, Bertelsmann and Sony Corporation of America v Impala, (
21
) Article 2(2) and (3) of Regulation No 139/2004 does not impose different standards of proof with respect to decisions authorising a concentration and decisions prohibiting a concentration, since those standards of proof are perfectly symmetrical.
56.
Second, even though, in that judgment, (
22
) the Court did not expressly identify the relevant test for the standard of proof required as being the ‘balance of probabilities’ test, the fact remains that it required the Commission to provide evidence of the ‘most likely’ outcome or ‘plausibility’ of its prospective analysis, which consists of an examination of how, in the light of the various conceivable chains of cause and effect, the merger concerned could give rise to a significant impediment to effective competition. (
23
) As both the Commission and the EFTA Surveillance Authority are fully entitled to argue, the requirement to demonstrate the ‘most likely’ outcome or plausibility of the Commission’s prospective economic analysis seems to me to correspond precisely to the ‘balance of probabilities’ test, as described in my Opinion in that case and according to which the market development envisaged need not be ‘very probable’ or ‘particularly likely’ or established ‘beyond reasonable doubt’, in accordance with the particularly high standard applicable in criminal or quasi-criminal matters. (
24
) In addition, contrary to the impression conveyed by paragraph 118 in fine of the judgment under appeal, the Court did not adopt, as Advocate General Tizzano had done, in particular in the case of ‘conglomerate’ type concentrations, a standard of proof equivalent to the need to demonstrate that the creation or strengthening of a dominant position and necessarily, therefore, also a significant impediment to effective competition were ‘very probable’. (
25
) In any event, only the standard of proof associated with the ‘plausibility’ or ‘balance of probabilities’ test seems to me to be compatible with the discretion enjoyed by the Commission in the context of its (forward-looking) complex economic analyses in relation to concentrations, which is why the scope of the judicial review is, in essence, limited to ascertaining whether there have been manifest errors of assessment (see point 51 above). (
26
)
57.
By contrast, paragraph 118 of the judgment under appeal states, first, that the Commission is required to produce sufficient evidence to demonstrate with a ‘strong probability’ the existence of significant impediments caused by the concentration at issue and, second, that the standard of proof applicable is therefore ‘stricter’ than that under which a significant impediment to effective competition is ‘more likely than not’, on the basis of a ‘balance of probabilities’. Accordingly, as the Commission is fully entitled to argue, in so doing, the General Court required a higher standard of proof, contrary to the premisses of the case-law set out in points 55 and 56 above and therefore erred in law.
58.
That conclusion is all the more compelling, since it is not possible to provide ‘objective’ proof of a forecast or for it to be free of uncertainties and doubts. Accordingly, on a general or abstract level, any prospective analysis relating to the future developments of a relevant market and the future behaviour of operators who are or will be active on it can be based only on the determination of a more or less strong probability, the plausibility of which, in the sense of the ‘balance of probabilities’ standard of proof, is such that it is sufficient, in a particular case, to establish the validity of the Commission’s argument. (
27
)
59.
It is only in a particular case, in which the EU Courts are freely assessing the evidence, that the question arises as to how, for the purpose of persuading those Courts, such plausibility can be substantiated by sufficiently significant and convincing evidence, the case-law relating to concentrations giving rise to ‘conglomerate’ type or ‘collective’ type dominant positions having emphasised the importance of the quality of such evidence. (
28
) By contrast, as has been stated in the case-law, in general terms, neither the type of concentration nor the complexity of assessing the plausibility of the possible effects of a concentration has, as such, an effect on the standard of proof required, which therefore remains the same in all circumstances. (
29
) On the contrary, in view of the unitary nature of the concept of ‘significant impediment to effective competition’, irrespective of the type of concentration concerned (see point 49 above), and the symmetry of the standard of proof noted in point 55 above, there is no justification for requiring a higher standard of proof in the case of concentrations giving rise to non-coordinated effects on oligopolistic markets than in the case of concentrations giving rise to ‘conglomerate’ or ‘collective’ type dominant positions.
60.
It follows from the foregoing considerations that paragraph 118 of the judgment under appeal is vitiated by an error of law. The same is true of the finding in paragraph 111 of that judgment that, in essence, the EU Court must require a higher standard of proof where the Commission advances, in support of a significant impediment to effective competition put forward with regard to a concentration, a theory of harm which is complex or uncertain, or stems from a cause-and-effect relationship which is difficult to establish.
61.
In those paragraphs, the General Court confuses, on the one hand, the necessary conviction which the EU Courts must have, in a particular case, when freely assessing the evidence brought before them to support the plausibility of the various consequences such a concentration may have and to identify the most likely to arise, (
30
) with, on the other hand, the uniform and generally applicable standard of proof which is based on the ‘balance of probabilities’ test. In addition, although in paragraph 113 in fine of the judgment under appeal the General Court itself claims to endorse the ‘most likely to ensue’ test, it errs and contradicts itself in ultimately rejecting that test in paragraph 118 of the judgment under appeal by requiring a stricter standard of proof. Finally, in particular, paragraphs 332 and 368 of that judgment, which refer to paragraph 111 of the same judgment, demonstrate that that error of law did indeed have consequences for the rest of the General Court’s assessment. (
31
)
62.
It follows that the considerations set out in paragraphs 110 to 118 of the judgment under appeal are vitiated by errors of law.
63.
In that regard, CK Telecoms’ argument at the hearing that the standard of proof required should be higher in the present case in order to prevent the Commission, in the exercise of its discretion, from systematically prohibiting horizontal mergers in oligopolistic markets on the basis of alleged non-coordinated effects cannot succeed. CK Telecoms has not adduced any convincing evidence to show that such an approach is conceivable or actually possible in the light of the criteria developed in the case-law set out in points 51 and 56 above.
64.
That is all the less so because, according to paragraphs 26 to 38 of the Guidelines, the Commission is supposed to investigate and assess a large number of factors and great deal of evidence which may give rise to a finding of the existence of non-coordinated effects and, consequently, a significant impediment to effective competition, an approach which the Commission adopted in the present case. As the General Court itself recognised, in paragraph 287 of the judgment under appeal, to that end the Commission examined in turn various factors in recitals 330 to 1174 of the decision at issue and summarised its qualitative and quantitative assessment in recitals 1175 to 1225 of that decision, before making an overall assessment in recitals 1226 and 1227 of that decision.
65.
Accordingly, the first ground of appeal must be upheld.
66.
It also follows that, should the Court of Justice follow the approach proposed above, those errors of law would, in principle, constitute in themselves a sufficient basis for setting aside the judgment under appeal and referring the case back to the General Court, without an examination of the Commission’s other grounds of appeal.
67.
However, for the sake of completeness, as requested by the Commission and in the light of the General Court’s many criticisms that the Commission disregarded the applicable rules, I shall also examine the other grounds of appeal. Moreover, it seems to me useful to clarify as many legal issues as possible with reference to a possible referral of the present case back to the General Court.
C.
The second ground of appeal, alleging misinterpretation of Article 2(3) of Regulation No 139/2004
68.
The second ground of appeal comprises two parts, the first alleging an error of law in that the General Court equated the conditions for establishing that the concentration at issue could give rise to non-coordinated effects with the conditions for establishing the existence of a dominant position and the second alleging a restrictive interpretation of Article 2(3) of Regulation No 139/2004.
1. The first part of the second ground of appeal, alleging an error of law in that the General Court equated the conditions for establishing that the concentration at issue could give rise to non-coordinated effects with the conditions for establishing the existence of a dominant position
69.
By the first part of the second ground of appeal, the Commission submits that, in paragraph 90 of the judgment under appeal, in using the expression ‘by itself’, the General Court equated the conditions for establishing that the concentration at issue could give rise to non-coordinated effects with the conditions for establishing the existence of a dominant position and, consequently, gave a restrictive interpretation of Article 2(3) of Regulation No 139/2004.
70.
However, as CK Telecoms contends, that argument is ineffective in that it challenges a general finding by the General Court which did not serve as the basis for a specific assessment of an alleged error by the Commission in applying the concept of ‘significant impediment to effective competition’ for the purposes of Article 2(3) of Regulation No 139/2004. Accordingly, the Commission fails to identify any passage in the judgment under appeal which is based on that finding, to the effect that the Commission took as a basis in the decision at issue that the merged entity had market power equivalent to a dominant position which allowed it (unilaterally) to determine the parameters of competition, and even prices.
71.
Consequently, the first part of the second ground of appeal cannot be upheld.
2. The second part of the second ground of appeal, alleging a restrictive interpretation of Article 2(3) of Regulation No 139/2004
72.
By the second part of the second ground of appeal, the Commission alleges that, in paragraphs 95 and 96 of the judgment under appeal, the General Court erred in holding that Article 2(3) of Regulation No 139/2004, read in the light of recital 25 of that regulation, had to be interpreted as meaning that, in the absence of the creation or strengthening of a dominant position following a concentration, a significant impediment to effective competition can be established only if the Commission demonstrated that two cumulative and exhaustive conditions were fulfilled, that is to say (i) the elimination of important competitive constraints that the merging parties had exerted upon each other and (ii) a reduction of competitive pressure on the remaining competitors. In particular, the Commission argues that the General Court’s approach is too restrictive in its interpretation of the concept of ‘significant impediment to effective competition’, in the application of which the Commission is required to take into account not only the reduction of competitive pressure on competitors but also the reduction of competitive pressure exerted by competitors, as is the case with the second theory of harm applied in the decision at issue, which the General Court regarded as insufficient in paragraph 370 of the judgment under appeal.
73.
I agree with the Commission’s argument that paragraphs 95 and 96 (and, ultimately, 370) of the judgment under appeal, the content of which it has correctly recalled, demonstrate both a formalistic and a reductionist reading of the concept of ‘significant impediment to effective competition’, for the purposes of Article 2(3) of Regulation No 139/2004, by limiting that concept to the two allegedly cumulative conditions set out in recital 25 thereof. It is true that the EU legislature intended that recital 25 should constitute an important element in determining the scope of that concept. However, that recital is in itself neither legally binding (
32
) nor capable of providing a basis for an interpretation of that Article 2 which is contrary to the objectives pursued by that regulation, that is to say, in particular, the effective control of any concentration falling within its scope which is liable significantly to impede effective competition, including in oligopolistic markets. The same applies to paragraph 25 of the Guidelines, the wording of which largely coincides with that of recital 25 of Regulation No 139/2004, since such rules of conduct adopted by the Commission are legally binding neither on the EU Courts nor on the Member States. (
33
)
74.
It must be concluded that, if it were to be upheld, the interpretation of Article 2(3) of Regulation No 139/2004 set out in paragraph 96 of the judgment under appeal would have the effect of preventing the Commission not only from investigating, taking into account and weighing up as a whole the competitive relationships and forces which determine the functioning of an oligopolistic market, but also from developing, in connection with a proposed concentration on such a market, theories of harm which do not fulfil the two allegedly cumulative, or even exhaustive, conditions laid down by the General Court. Accordingly, in the present case, only the Commission’s first theory of harm, as described in paragraphs 128 to 133 of the judgment under appeal, is capable of fulfilling those requirements, whereas its second theory of harm, assessed in paragraph 330 et seq. of that judgment, is not, as is confirmed by paragraph 370 thereof.
75.
In particular, the General Court’s categorical approach would have the effect of declaring it unlawful, as being contrary to Article 2(3) of Regulation No 139/2004, to take into account a reduction in the competitive pressure exerted by competitors following a concentration. However, in general, such pressure forms an integral part of any analysis for the purpose of applying the EU competition rules, including the analysis directed at determining the relevant market, the market power exercised by operators on it or conduct which may lead to anticompetitive foreclosure. (
34
) In my view, such a restrictive interpretation does not appear to be justified by any convincing consideration.
76.
Such an approach is even less possible since, regardless of the fact that it is not legally binding, recital 25 of Regulation No 139/2004, in so far as it uses the conjunction ‘as well as’, can also be interpreted as merely specifying, by way of examples, two particularly relevant or recurrent situations which may give rise to significant impediments to effective competition caused by horizontal non-coordinated effects. In merely providing those examples, that recital does not exclude other situations likely to produce those same effects or to contribute to them, in particular a situation in which competitive pressure exerted by competitors is significantly reduced. Finally, it cannot be ruled out that only one of those situations, the effects of which may be particularly detrimental to competition, might be sufficient for a finding that a significant impediment to effective competition exists.
77.
Therefore, the assessment set out in paragraph 96 of the judgment under appeal is erroneous in two respects, in so far as, first, it classifies the two conditions set out in recital 25 of Regulation No 139/2004 as both ‘cumulative’ and, at least implicitly, exhaustive and, second, it relies on that interpretation in determining the scope of the concept of ‘significant impediment to effective competition’ under Article 2(3) of that regulation.
78.
Moreover, as the Commission correctly points out, paragraph 370 of the judgment under appeal demonstrates that the General Court’s approach is contradictory in that regard, in that it took account of competition exerted by competitors, even though such competition is not referred to in recital 25 of Regulation No 139/2004. More specifically, in that paragraph, the General Court did not rule out the relevance of any effect of a reduction in the competitive pressure exerted by other competitors on the market, in terms of quality, but stated that that effect alone was not sufficient to demonstrate a significant impediment to effective competition.
79.
Furthermore, the General Court decided not to reject the first of the sub-theories advanced in the context of the second theory of harm, summarised in paragraph 298 of the judgment under appeal and in recital 1232 of the decision at issue on the ground that that sub-theory did not fulfil the cumulative conditions listed in paragraph 96 of that judgment. That sub-theory consists, in essence, in a finding of a reduction in the competitive pressure exerted by the other competitors, namely BT/EE and Vodafone, on the merged entity following the concentration at issue. Notwithstanding its (erroneous) interpretation of the scope of recital 25 of Regulation No 139/2004, the General Court examined that sub-theory and rejected it on the merits, since the Commission had, in the General Court’s view, failed to demonstrate to the requisite legal standard that BT/EE and Vodafone were unable to exert effective competitive pressure on the merged entity. (
35
) Finally, despite the fact that, in paragraph 359 of the judgment under appeal, the General Court again emphasised the need to fulfil the cumulative conditions set out in paragraph 96 of that judgment, it failed to take account of the second allegedly cumulative condition, according to which the Commission is required to demonstrate that the concentration at issue leads to a ‘a reduction of competitive pressure on the remaining competitors’ (emphasis added).
80.
However, by proceeding in that manner, the General Court adopted a contradictory approach and made errors of law in interpreting the criteria required to demonstrate a significant impediment to effective competition, with the result that the second part of the second ground of appeal must be upheld.
D.
The third ground of appeal, alleging, first, an error of law in that the General Court, in particular, exceeded the limits of judicial review in interpreting the concepts of ‘important competitive force’ and ‘close competitors’ and, second, a distortion of both the decision at issue and the defence at first instance
81.
The third ground of appeal comprises, in essence, four parts, alleging (i) an error of law in that the General Court exceeded the limits of judicial review in interpreting the concepts of ‘important competitive force’ and ‘close competitors’, (ii) a misinterpretation of the concept of ‘important competitive force’ and a distortion of both the decision at issue and the defence at first instance, (iii) a misinterpretation of the concept of ‘close competitors’ and a distortion of the decision at issue, and (iv), in the alternative, a breach of the obligation to state reasons concerning any incompatibility of the Guidelines with Regulation No 139/2004.
1. The first part of the third ground of appeal, alleging an error of law in that the General Court exceeded the limits of judicial review in interpreting the concepts of ‘important competitive force’ and ‘close competitors’
82.
By the first part of the third ground of appeal, the Commission argues, in essence, that, in holding, first, in paragraph 174 of the judgment under appeal, that an undertaking can be classified as an ‘important competitive force’ only if it stands out from its competitors in terms of impact on competition and, second, in paragraph 242 of that judgment, that the Commission must show that the parties to the concentration are ‘particularly close competitors’, the General Court departed from the concepts of ‘important competitive force’ and ‘close competitors’ set out in the Guidelines and from the economic framework set out therein. The General Court therefore disregarded the Commission’s margin of discretion with regard to economic matters and improperly substituted its own economic assessment for that of the Commission. In so doing, the General Court exceeded the limits of judicial review.
83.
As is clear from the Commission’s introductory observations in the context of the third ground of appeal, it takes the view that, on the basis of its margin of discretion with regard to economic matters, it has an exclusive power to interpret the economic concepts contained in the Guidelines. More specifically, the Commission takes the view that, in so far as those guidelines are compatible with the requirements of Regulation No 139/2004 and primary EU law, the judicial review carried out by the General Court must be limited to ascertaining whether the decision at issue complies with the criteria laid down by the Commission in the Guidelines, in the exercise of that margin of discretion.
84.
It is true that in the context of its review of mergers, the Commission has a margin of discretion with regard to economic matters. Accordingly, as stated in point 51 above, in so far as the Commission is required, in that context, to make complex economic assessments, the General Court is prohibited from substituting its economic assessment for that of the Commission.
85.
However, it is also apparent from settled case-law, referred to in point 73 above, that the Guidelines cannot legally bind the EU Courts. Those guidelines are binding only on the Commission itself, which, by adopting them, has imposed a limit on the exercise of its discretion, with the result that it cannot depart from them without objective justification, and if it does so, may breach, in particular, the principle of equal treatment. (
36
) It is only in that context that, according to the case-law, it cannot be precluded that, subject to certain conditions and depending on their content, such rules of conduct, which are of general application, may produce legal effects. (
37
) This applies a fortiori to economic concepts which the Commission defines in such guidelines in order to guide its administrative practice.
86.
By contrast, when those concepts are derived from or dependent on legal concepts of primary or secondary EU law, the situation is different. In the case of legal concepts which have not been delimited, including the concept of ‘significant impediment to effective competition’, the EU Courts have an exclusive and definitive power of interpretation. (
38
)
87.
In the light of the foregoing, there is therefore no error of law in the finding in paragraph 100 of the judgment under appeal that, in essence, the Commission’s Guidelines, as well as its previous practice, cannot, in any event, bind the EU Courts, which have exclusive jurisdiction to interpret EU law.
88.
I would like to point out that the fact that an act of the Commission, such as the Guidelines, is not legally binding in the strict sense does not prevent the Court of Justice from interpreting it, in particular in the context of a preliminary ruling procedure under point b of the first paragraph of Article 267 TFEU. (
39
) Furthermore, it cannot be ruled out that the EU Courts may draw inspiration from economic concepts derived from the Commission’s rules of conduct or administrative practice in order to clarify the scope of legal concepts in EU law or even in order to recognise new legal concepts or tests. On the contrary, numerous such examples are found in the case-law, including in competition matters in the broad sense. (
40
) The finding in paragraphs 101 and 163 of the judgment under appeal that the General Court may, where appropriate, adopt the guidance and the economic or legal assessments contained in the Commission’s practice in previous decisions or in its Guidelines does not therefore contain any error of law.
89.
It follows that, in principle, there is nothing to prevent the EU Courts from clarifying the scope of the concepts of ‘close competitors’ and ‘important competitive force’, contained in paragraphs 28, 37 and 38 of the Guidelines, in order to determine, in particular, whether the Commission correctly applied those concepts in the present case when concluding that there is a significant impediment to effective competition or whether the Commission remained within the limits of the rules of conduct which it has imposed on itself.
90.
Therefore, in interpreting those concepts, the General Court did not disregard the Commission’s margin of discretion with regard to economic matters, nor did it improperly substitute its own economic assessment for that of the Commission or exceed the limits of judicial review.
91.
Accordingly, the first part of the third ground of appeal cannot succeed.
2. The second part of the third ground of appeal, alleging misinterpretation of the concept of ‘important competitive force’ and distortion of both the decision at issue and the defence at first instance
92.
The second part of the third ground of appeal comprises two complaints.
(a) The first complaint
93.
By the first complaint in the second part of the third ground of appeal, the Commission argues that the General Court distorted both the decision at issue and the defence at first instance, thereby vitiating its assessment set out in paragraphs 173 to 175 of the judgment under appeal with errors of assessment. First, the Commission complains that the General Court erred in holding, in paragraph 171 of that judgment, that, in the decision at issue, the Commission had found that the classification of a party to the concentration as an ‘important competitive force’ in an oligopolistic market suffices as a basis for concluding that the concentration at issue would give rise to a significant impediment to effective competition. Second, the Commission claims that, in paragraph 170 of that judgment, the General Court distorted paragraph 39 of the defence, which led the General Court to create its own definition of the concept of ‘important competitive force’, which differs from that used in paragraph 37 of the Guidelines.
94.
In the first place, as regards the alleged distortion of the decision at issue, it is clear from a comparison of paragraphs 155 and 171 of the judgment under appeal that the reasoning of the General Court is indeed contradictory.
95.
In paragraph 155 of the judgment under appeal, the General Court correctly notes that it is apparent from recital 777 of the decision at issue that ‘one of the factors which the Commission took into account in concluding that the concentration would give rise to non-coordinated effects was that “Three constitute[d] an important competitive force in the [retail market] … pursuant to paragraph 37 of the … Guidelines, or in any event it exert[ed] an important competitive constraint on that market, and [was] likely to continue exerting such a constraint absent the transaction”’. (
41
)
96.
By contrast, paragraph 171 of the judgment under appeal states that ‘it is apparent from the [decision at issue] that, as regards the elimination of an “important competitive force”, the Commission is of the opinion that the mere decline in the competitive pressure which would result, in particular, from the loss of an undertaking having more of an influence on competition than its market share would suggest is sufficient, in itself, to prove a significant impediment to effective competition’. (
42
)
97.
Furthermore, contrary to what is stated in paragraph 171 of the judgment under appeal, the Commission considered, in the general sections of the decision at issue entitled ‘Competitive assessment’ and ‘Analytical framework’, (
43
) as well as in the section entitled ‘The Legal test’, (
44
) and in particular in recitals 313 and 321 of that decision, that the Guidelines contain a number of
factors which could have a bearing on whether or not the concentration could have horizontal non-coordinated effects in the relevant market. While it is true that the Commission also stated in the decision at issue that not all of those factors need to be present for such effects to be likely and that those factors being present could have a bearing on the extent of the non-coordinated effects, the fact remains that the Commission did not infer from this that the presence of only one of those factors would be sufficient for a finding that that concentration would be likely to lead to a significant impediment to effective competition.
98.
Finally, neither the decision at issue nor CK Telecoms’ pleadings indicate that the Commission, in its assessment of the concentration at issue, actually reached the conclusion set out in paragraph 171 of the judgment under appeal. This appears even less credible since, in accordance with paragraph 26 of the Guidelines, which the Commission applied in the present case, the fact that one of the parties to the concentration can be classified as an ‘important competitive force’ is only one of the factors, listed in paragraphs 27 to 38 of those guidelines, which may influence whether significant non-coordinated effects are likely to result from a concentration.
99.
Accordingly, I consider that paragraph 171 of the judgment under appeal is a distortion which is obvious from the documents in the Court’s file, there being no need for a new assessment of the facts and evidence. (
45
) As is apparent, in particular, from paragraphs 172 to 174 of the judgment under appeal, that distortion had consequences in that, along with other considerations, it led the General Court to conclude that recital 326 of the decision at issue was vitiated by an error of law and an ‘error of assessment’.
100.
The first complaint must, therefore, be upheld in so far as it alleges that, in paragraph 171 of the judgment under appeal, the General Court distorted the decision at issue.
101.
In the second place, as regards the argument that the General Court created its own definition of the concept of ‘important competitive force’, it is sufficient to reject it for the reasons set out in points 83 to 90 above.
102.
In the third place, I consider that the first complaint must be upheld in so far as the Commission complains that the General Court distorted paragraph 39 of its defence in finding, in paragraph 170 of the judgment under appeal, that the Commission had ‘conceded that an “important competitive force” must have more of an influence on competition than its market share would suggest, compete in a particularly aggressive way and force other players to follow that conduct’.
103.
As is clear from the last part of paragraph 216 of the judgment under appeal, the General Court relied on that definition of the concept of ‘important competitive force’, which was allegedly used in the defence, to ascertain whether the Commission had demonstrated to the requisite legal standard that Three was competing particularly aggressively in terms of prices and that it forced the other players on the market to align with its prices or that its pricing policy was capable of significantly altering the competitive dynamics on the market. The General Court ultimately concluded that the Commission had made an ‘error of assessment’ in that regard, on the ground that that undertaking could not be classified as an ‘important competitive force’.
104.
However, it must be noted that no such definition is to be found in the decision at issue, including in recital 326, the legality of which the General Court claims to have reviewed in that context. (
46
) It should be added that the last two sentences of paragraph 39 of the defence merely provide an example to support the Commission’s argument that ‘not every competitor in an oligopolistic market has more of an influence on the competitive process than its market shares or other similar measures would suggest’.
105.
Therefore, the first complaint in the second part of the third ground of appeal must be upheld in so far as it alleges that the General Court distorted the decision at issue and the defence at first instance.
(b) The second complaint
106.
By the second complaint, the Commission alleges, in essence, that the General Court erred in law in that it imposed excessive requirements for classifying an undertaking as an ‘important competitive force’. In that regard, it should be recalled that, in paragraph 174 of the judgment under appeal, it is stated that, in order to make such a classification, the Commission must, inter alia, examine whether that undertaking stands out from its competitors in terms of impact on competition. In addition, in paragraphs 170 and 216 of that judgment, it is stated that the Commission is required to show to the requisite legal standard that that undertaking ‘[is] competing particularly aggressively in terms of prices’ and ‘force[s] the other players on the market to align with its prices or that its pricing policy [is] capable of significantly altering the competitive dynamics on the market, in accordance with the definition of the concept of “important competitive force”’.
107.
By contrast, paragraph 37 of the Guidelines, which the Commission has applied in the present case, merely states that ‘some firms have more of an influence on the competitive process than their market shares or similar measures would suggest’ and that ‘a merger involving such a firm may change the competitive dynamics in a significant, anticompetitive way, in particular when the market is already concentrated’. That paragraph gives the example of a firm which is a recent entrant on the market and is likely to exert ‘significant competitive pressure in the future on the other firms in the market’. (
47
)
108.
Therefore, neither paragraph 37 nor paragraph 38 of the Guidelines presupposes that an undertaking classified as an ‘important competitive force’ must stand out from its competitors in terms of its impact on competition or be ‘competing particularly aggressively in terms of prices’, forcing those competitors to align with its prices. It is sufficient that such an undertaking has more of an influence on the competitive process than its market share or similar measures would suggest, independently of other competitors in the market.
109.
The General Court was, therefore, not entitled to criticise the Commission, albeit implicitly, for having departed, in the decision at issue, from the criteria which the Commission had imposed on itself in paragraphs 37 and 38 of the Guidelines. Moreover, the two criteria set out in paragraphs 170 and 216 of the judgment under appeal, which were not found in that decision, in fact related only to an example provided in the defence at first instance, the content of which was distorted by the General Court (see points 102 and 103 above). That example concerns a situation in which an undertaking could be regarded as being an ‘important competitive force’, and does not seek to define the scope of that concept on a general level. Similarly, the fact that the Commission, in its previous decision-making practice, as recalled in paragraphs 164 to 167 of the judgment under appeal and which is not binding on the EU Courts, (
48
) has taken the view that certain undertakings played a unique role as ‘mavericks in the market’ does not imply that the concept of ‘important competitive force’ applies only in those situations.
110.
In addition, no convincing argument has been put forward to establish that the scope of the concept of ‘important competitive force’, within the meaning of paragraphs 37 and 38 of the Guidelines, ought to be interpreted in such a restrictive manner or in a manner differing from that adopted in paragraph 37 of the Guidelines and recital 326 of the decision at issue. On the contrary, such an interpretation would risk underestimating from the outset the competitive forces present within an already concentrated oligopolistic market. Even though the adjective ‘important’ implies that the competitive behaviour of the undertaking concerned on the market should be substantial, that is to say such as to ‘change the competitive dynamics in a significant, anticompetitive way’ extending beyond the undertaking’s significance in terms of market shares or similar measures, it cannot be interpreted as requiring that undertaking to be ‘competing particularly aggressively in terms of prices’.
111.
In that regard, although accepted in paragraph 175 of the judgment under appeal, the argument that any other interpretation would make it very likely that the Commission would systematically prohibit all horizontal concentrations in an oligopolistic market cannot succeed. Apart from the fact that no such development has been established (see point 63 above), that argument is ultimately based on the imposition on the Commission of a higher standard of proof in order to establish the existence of a significant impediment to effective competition resulting from non-coordinated effects, for which there is no convincing justification (see points 46 to 65 above). It is therefore precisely in that context that the General Court’s failure to apply the standard of proof required, as noted in response to the first and second grounds of appeal, has consequences. For the same reasons, the Commission cannot be criticised, as the General Court does in paragraph 173 of the judgment under appeal, for having ‘considerably broaden[ed] the scope of Article 2(3) of Regulation No 139/2004’ or even for having conflated distinct legal concepts.
112.
It follows that, in paragraphs 173 to 175 of the judgment under appeal, the General Court erred in law in holding that, if the Commission’s interpretation had been accepted, any undertaking in an oligopolistic market exerting competitive pressure could be classified as an ‘important competitive force’. The General Court also erred in concluding that the Commission’s interpretation would mean that classifying a party to the concentration as an ‘important competitive force’ in an oligopolistic market would suffice as a basis for concluding that the concentration in question would give rise to a significant impediment to effective competition.
113.
The second complaint in the second part of the third ground of appeal, therefore, must be upheld.
3. The third part of the third ground of appeal, alleging misinterpretation of the concept of ‘close competitors’ and a distortion of the decision at issue
114.
The third part of the third ground of appeal comprises two complaints.
(a) The first complaint
115.
By the first complaint in the third part of the third ground of appeal, the Commission complains that the General Court erred in holding, in paragraph 242 of the judgment under appeal, that it was required to demonstrate that the parties to the concentration were ‘particularly close competitors’. In doing so, the General Court relied, according to the Commission, on a standard of proof which is excessive and contrary to the Guidelines. It is not necessary for the parties to the concentration to be particularly close competitors in order to establish that the existence of close competition between them is a relevant factor in order to conclude that a significant impediment to effective competition was present. The fact that other competitors are also close, or even closer, cannot invalidate such a conclusion.
116.
The General Court’s assessment concerning the degree of closeness of competition between the parties to the concentration forms part of its examination of the first theory of harm put forward by the Commission relating to non-coordinated effects on the retail market. As stated in paragraph 128 of the judgment under appeal, in that theory, the Commission relied on the important competitive constraint exerted by Three and O2, on the fact that they competed closely, on their market shares and on the incentives for the merged entity to increase prices, and on the ability of its competitors to compete. The Commission concluded from this, in recital 1226 of the decision at issue, that the concentration at issue was ‘likely to give rise to non-coordinated anticompetitive effects on the retail market’.
117.
In paragraph 234 of the judgment under appeal, the General Court acknowledged that the concept of a ‘close competitor’ does not appear in Regulation No 139/2004 but only in the Guidelines. However, in paragraphs 235 and 241 of that judgment, it is stated, in essence, that the applicability of Article 2(3) of Regulation No 139/2004, read in the light of recital 25 of that regulation, requires the ‘elimination of important competitive constraints’ that the merging parties exerted upon each other, which constitutes the most direct unilateral effect of a concentration in an oligopolistic market. In paragraphs 242, 247 and 249 of that judgment, the General Court essentially inferred from this that the Commission had to demonstrate, with respect to an oligopolistic market in which all operators are, by definition, close to a greater or lesser extent, that the parties were ‘particularly close competitors’ rather than ‘close competitors’.
118.
Finally, in paragraphs 249 and 250 of the judgment under appeal, the General Court upheld CK Telecoms’ arguments concerning the weak probative value of the analysis of the closeness of competition between Three and O2. The reason given by the General Court for that position was that Three and O2 were only relatively close competitors in some of the segments of a concentrated market comprising four mobile network operators. According to the General Court, that is insufficient in the light of the above requirements; if that were not the case, any concentration resulting in a reduction from four to three operators would as a matter of principle be prohibited.
119.
In that regard, it should be recalled that when the Commission, in the decision at issue, assessed the criterion of closeness of competition between the parties to the concentration on the basis of a qualitative assessment of diversion ratios based on mobile number portability data, (
49
) it applied, inter alia, paragraph 26 of the Guidelines. According to that paragraph, such a criterion is only one of a number of relevant factors which may influence whether significant non-coordinated effects are likely to result from a merger. According to that provision, that likelihood must be assessed in the light of a number of factors, which taken separately are not necessarily decisive and need not all be present for that purpose. As confirmed by my examination of the second complaint in the third part of the third ground of appeal, set out in points 127 to 131 below, in accordance with that provision, that criterion of closeness of competition is only one of a number of factors assessed by the Commission in support of its first theory of harm. (
50
)
120.
In addition, it is clear from paragraph 28 of the Guidelines that the closeness of competition is assessed by reference to the degree of substitutability between the merging parties’ products. According to that paragraph, on the one hand, products may be differentiated within a relevant market such that some products are closer substitutes than others and, on the other hand, the higher the degree of substitutability between those parties’ products, the more likely it is that the merging firms will raise prices significantly. (
51
) As indicated in recital 444 of the decision at issue, paragraph 29 of the Guidelines provides that the degree of substitutability can be calculated on the basis of, inter alia, diversion ratios, (
52
) as the Commission did in the present case.
121.
It follows that the Guidelines start from the premiss that there are, admittedly, different degrees of closeness of competition between the parties to a concentration. However, it does not follow that, for the purposes of assessing the criterion of closeness of competition as a relevant factor in order to determine whether there is a significant impediment to effective competition, the relevant degree of proximity must, as required in paragraphs 242, 247 and 249 of the judgment under appeal, be that of ‘particularly close competitors’.
122.
Consequently, the General Court was not entitled to criticise the Commission, albeit implicitly, for having disregarded, in the decision at issue, the criteria which the Commission had imposed on itself in paragraphs 26, 28 and 29 of the Guidelines. That appears to me to be even less possible since the criterion of closeness of competition is only one factor which must be taken into account together with other relevant factors in order to enable the Commission to conclude that the concentration at issue was likely to result in harmful non-coordinated effects and, therefore, to give rise to a significant impediment to effective competition. However, by taking into account that factor alone, without taking into consideration the other factors assessed by the Commission, the General Court could not conclude that there was no evidence of the existence of such an impediment.
123.
Similarly, contrary to what is apparent from a combined reading of paragraphs 235, 241, 242, 245 and 247 of the judgment under appeal, the purported requirement for the competitive relationship of the parties to the concentration to be ‘particularly’ close is supported neither by the wording of recital 25 of Regulation No 139/2004, according to which Article 2(3) of that regulation requires the elimination of ‘important competitive constraints that the merging parties had exerted upon each other’, nor by the concept of a ‘significant impediment to effective competition’ as such.
124.
As discussed in point 111 above, that purported requirement is ultimately based on the excessive standard of proof which the General Court imposed on the Commission in order to establish the existence of a significant impediment to effective competition resulting from non-coordinated effects, for which there is no convincing justification (see points 46 to 65 above). It is therefore in that context also that the General Court’s failure to apply the standard of proof required, as noted in response to the first and second grounds of appeal, has consequences. That is confirmed by the assessment in paragraph 249 of the judgment under appeal that the Commission’s finding that Three and O2 were ‘relatively close competitors’ in only some of the segments of a concentrated market comprising four mobile network operators cannot suffice to establish a significant impediment to effective competition; if that were not the case, any concentration resulting in a reduction from four to three operators would as a matter of principle be prohibited.
125.
Accordingly, I consider that the General Court erred in law in holding, in paragraph 250 of the judgment under appeal, that the Commission’s analysis of the closeness of competition between Three and O2 was flawed.
126.
The first complaint in the third part of the third ground of appeal must therefore be upheld.
(b) The second complaint
127.
By the second complaint in the third part of the third ground of appeal, the Commission complains that the General Court distorted the decision at issue and erroneously concluded, inter alia, in paragraph 249 of the judgment under appeal, that in that decision the Commission started from the premiss that the closeness of competition between Three and O2 on the relevant market was, in itself, a sufficient basis for concluding that the concentration at issue would give rise to a significant impediment to effective competition. In that regard, the Commission submits that, as the General Court itself noted in paragraph 227 of the judgment under appeal, that was only one of the factors which led the Commission to find that that concentration would give rise to non-coordinated effects.
128.
Paragraph 249 of the judgment under appeal states, in essence, that establishing the sole fact that Three and O2 are relatively close competitors in some of the segments of a concentrated market comprising four mobile network operators is not sufficient either to prove the elimination of the important competitive constraints which the parties to the concentration exerted upon each other nor does it establish a significant impediment to effective competition; if that were not the case, any concentration resulting in a reduction from four to three operators would as a matter of principle be prohibited.
129.
It is true that, as the Commission argues, the decision at issue does not contain any ground or contextual element enabling it to be interpreted as asserting that the closeness of competition between Three and O2 was, in itself, a sufficient basis for concluding that the concentration at issue was likely to give rise to a significant impediment to effective competition. On the contrary, as recalled in points 119 to 121 above, it follows from a combined reading of recitals 313, 321, 444 and 463 of that decision that, in the context of its first theory of harm, the Commission applied the criteria provided for in paragraphs 26, 28 and 29 of the Guidelines, which set out a number of factors, including the closeness of competition determined on the basis of diversion ratios, for the purpose of establishing that the concentration at issue was likely to result in non-coordinated effects on the relevant market.
130.
The fact remains that the General Court’s reasoning in paragraph 249 of the judgment under appeal is ambiguous and need not necessarily be understood as criticising the Commission for having itself considered, in the decision at issue, that such evidence was, in
itself, sufficient. Such a reading of the decision at issue seems less possible still since, as the Commission correctly points out, the General Court recognised, in paragraph 227 of that judgment, that the closeness of the competitive relationship was only ‘[one] factor on which the Commission relied in finding that the concentration [at issue] would give rise to non-coordinated effects’. (
53
) Rather than constituting a distortion of the content of that decision, that reasoning forms part of an assessment vitiated by a series of errors of law committed by the General Court, including that noted in points 124 and 125 above, in that it required too high a standard of proof, including in respect of each of the elements assessed by it in order to determine whether they were capable of demonstrating the existence of a significant impediment to effective competition.
131.
To that extent, the second complaint overlaps with the first complaint in the third part of the third ground of appeal (points 115 to 125 above) and must be rejected in so far as it alleges that the General Court distorted the decision at issue.
4. The fourth part of the third ground of appeal, alleging infringement of the obligation to state reasons concerning any incompatibility of the Guidelines with Regulation No 139/2004
132.
By the fourth part of the third ground of appeal, the Commission argues, in the alternative, that, since CK Telecoms had not challenged before the General Court the compatibility of the Guidelines with Article 2 of Regulation No 139/2004, the General Court could not examine that issue of its own motion.
133.
In that regard, it is sufficient to note, on the one hand, that the first to third parts of this ground of appeal, raised as the principal argument, must essentially be upheld (see points 82 to 131 above) and, on the other hand, that the General Court did not find in the judgment under appeal that those guidelines were incompatible with Article 2 of Regulation No 139/2004. It follows that it is not necessary to examine the fourth part of the third ground of appeal.
E.
The fourth ground of appeal, alleging a distortion of the Commission’s arguments relating to its quantitative analysis and errors of law
1. The effectiveness of the fourth ground of appeal
134.
By the first part of the fourth ground of appeal, the Commission submits, first, that the General Court distorted its arguments set out in the defence and rejoinder at first instance, in so far as the General Court found, in paragraph 273 of the judgment under appeal, that it was common ground between the parties that the possible price increase resulting from the concentration at issue was [confidential]%, even though that figure was contested by the Commission in the course of the proceedings. Second, the Commission complains that the General Court erred in law in that paragraph in concluding that that price increase was not significant because it was lower than the price increase used in previous cases relating to concentrations which the Commission authorised subject to conditions.
135.
In the second part of the fourth ground of appeal, the Commission argues, in essence, that the General Court erred in requiring it, in paragraphs 277 to 279 of the judgment under appeal, to include in its UPP analysis the ‘standard’ efficiencies which, according to the General Court are specific to each concentration.
136.
CK Telecoms’ line of argument that the present ground of appeal is ineffective cannot succeed.
137.
In that regard, first, it should be recalled that, in paragraphs 255 to 259 of the judgment under appeal, the General Court rejected CK Telecoms’ line of argument that the UPP analysis had no probative value and cannot be used as corroborating evidence of a significant impediment to effective competition.
138.
Second, even though, in paragraph 268 of that judgment, the General Court ruled that the UPP analysis was not decisive evidence, it nonetheless did not deny its probative value. Rather, it found that that analysis is not sufficient to demonstrate that the elimination of the important competitive constraints that the parties exerted upon each other would result in a significant increase in prices and, consequently, in a significant impediment to effective competition.
139.
Third, in reaching its conclusion, set out in paragraph 282 of the judgment under appeal, that the Commission had not demonstrated with a sufficient degree of probability that prices would increase ‘significantly’, the General Court noted, in paragraph 273 of that judgment, that the possible price increase resulting from the concentration at issue was, ‘according to [CK Telecoms] – which is not contradicted on that point by the Commission’ – [confidential]%. That increase is lower than the price increases used in cases COMP/M.6992 – Hutchison 3G UK/Telefonica Ireland (‘the Irish case’) and COMP/M.7018 – Telefónica Deutschland/E-Plus (‘the German case’), that is to say 6.6% and 9.5% respectively, which did not prevent the Commission from authorising the concentrations concerned subject to certain conditions.
140.
Fourth, in paragraphs 277 to 281 of the judgment under appeal, the General Court essentially criticised the Commission for failing to include in its UPP analysis the efficiencies generated by the concentration at issue, which nevertheless are an integral part of it. Consequently, according to the General Court, this was also the reason why the Commission had failed to establish the existence of a significant impediment to effective competition on account of a degradation of the quality of the network, on which its second theory of harm was, in part, based.
141.
In the light of the foregoing, it is not possible to regard as ineffective the Commission’s arguments seeking to show (i) that it had disputed the exact percentage of the possible price increase resulting from the concentration at issue, (ii) that the General Court had made an incorrect comparison of the present case with other merger cases dealt with previously and, (iii) that the Commission was not required to include efficiencies such as those referred to in paragraphs 277 to 279 of the judgment under appeal in its UPP analysis. Each of those three complaints is capable of calling into question the validity in law of the conclusion reached by the General Court in paragraph 282 of the judgment under appeal.
142.
It is therefore necessary to examine the substance of those complaints.
2. The first part of the fourth ground of appeal, alleging a distortion of the Commission’s arguments concerning the possible price increase resulting from the concentration at issue and an error of law on the part of the General Court in its assessment of the quantitative analysis
143.
By the first complaint in the first part of the fourth ground of appeal, the Commission complains that the General Court distorted its arguments set out in paragraph 157 of the defence and paragraph 61 of the rejoinder at first instance by incorrectly finding, in paragraph 273 of the judgment under appeal, that it was common ground that the possible price increase resulting from the concentration at issue was [confidential]%, even though that figure was contested by the Commission in the course of the proceedings.
144.
As noted in point 139 above, the General Court stated in paragraph 273 of the judgment under appeal that the Commission had not contested, in the course of the proceedings, CK Telecoms’ argument that the possible price increase resulting from the concentration at issue was [confidential]%.
145.
However, it must be noted that, in paragraph 157 of the defence, the Commission had indeed contested that figure and had argued that it should be [confidential]%, which is confirmed by paragraphs 159 and 160 of the defence and by paragraph 61 of the rejoinder. In accordance with the case-law cited in point 99 above, it is therefore clear from the documents in the file that the General Court, in paragraph 273 of the judgment under appeal, not only distorted the Commission’s arguments set out in paragraph 157 of the defence, but also misapplied the rules governing the burden of proof and the taking of evidence in finding that the parties agreed on a relevant fact, that is to say a possible price increase of [confidential]%, even though the opposite was true. (
54
)
146.
It is sufficient to point out, in response to the second complaint in the first part of the present ground of appeal, that, if only for that reason, the General Court was not entitled to criticise the Commission, in paragraph 273 of the judgment under appeal, for having failed to establish convincingly that the possible price increase resulting from the concentration at issue was not significant on the (implicit) ground that that increase was only [confidential]% lower than that used in the Irish case (6.6%) and much lower than that used in the German case (9.5%), cases in which the concentrations concerned had been authorised subject to conditions. Such an approach, based on an unproven fact, is contrary to the rules on the assessment of evidence and therefore erroneous in law.
147.
In addition, in the absence of an explanation in the judgment under appeal as to the comparability of the situations at issue, the General Court was not entitled to base that conclusion on a comparison with those other cases, in which the parties to the concentration had offered commitments and succeeded in removing the Commission’s competitive concerns. Those cases were therefore not necessarily comparable to the present case, the specific circumstances of which led to the prohibition of the concentration at issue, inter alia, on the basis of the first theory of harm. Therefore, for that reason also, the General Court erred, in paragraph 273 of the judgment under appeal, in rejecting as unconvincing the evidence adduced by the Commission in support of that theory.
148.
By contrast, I do not consider that that error also involves, as the Commission argues, an unlawful substitution by the General Court of the Commission’s complex economic assessment, in its UPP analysis, of the significance of the price increase. It is clear from paragraph 273 of the judgment under appeal that the General Court was not convinced by the Commission’s line of argument. Therefore, in reaching its conclusion, the General Court merely applied the rules relating to the taking of evidence and burden of proof and exercised its freedom to assess the evidence, without having carried out its own calculation of the significance of the price increase.
149.
In the light of the considerations set out in points 145 to 147 above, the first part of the fourth ground of appeal must therefore be upheld.
3. The second part of the fourth ground of appeal, alleging an error of law in that the General Court required the Commission to include ‘standard’ efficiencies in its UPP analysis
150.
By the second part of the fourth ground of appeal, the Commission complains that the General Court erred in holding, in paragraphs 277 to 279 of the judgment under appeal, that the Commission ought to have included in its UPP analysis the ‘standard’ efficiencies which, according to the General Court, are specific to each concentration.
151.
The General Court indeed adopted a rather innovative approach in holding, in paragraph 277 of the judgment under appeal, that any concentration would lead to efficiencies, the extent of which would also depend on external competitive pressure. According to the General Court, those efficiencies stem in particular from the efforts to rationalise and integrate production and distribution processes by the merged entity, which may lead it to lower its prices. As is apparent from paragraphs 278 and 279 of that judgment, the General Court made a distinction between those efficiencies and the efficiencies set out in the Guidelines which must be established by the notifying party, and which were found not to exist by the Commission in the present case. (
55
) The General Court stated that while those efficiencies had to be examined as part of the overall competitive appraisal of the concentration in order to establish their capacity to counteract its restrictive effects, the ‘standard’ efficiencies were specific to each concentration and were ‘merely a component of a quantitative model designed to establish whether a concentration is capable of producing such restrictive effects’. I infer from this that the General Court considered that the Commission was required to take into account ‘standard’ efficiencies systematically and of its own initiative in all cases.
152.
That new category of so-called ‘standard’ efficiencies identified by the General Court, which it assumes are inherent in each horizontal concentration, corresponds to the category of ‘default’ efficiencies, which some authors, in particular economists, recommend recognising, in order to counterbalance the uncertainties resulting from a UPP analysis. (
56
) Thus, it is proposed that such an analysis should include a default efficiency ‘credit’ of a certain percentage, for example 10%, representing the ‘default’ efficiencies, directly associated with the concentration, which are likely to counterbalance that percentage price increase estimated in the context of a UPP analysis. (
57
)
153.
However, no such category of efficiencies in the area of EU merger control is recognised by Regulation No 139/2004, Regulation (EC) No 802/2004, (
58
) or the Guidelines. In addition, the General Court failed to indicate the legal bases which might lead the Court of Justice to recognise the relevance of those efficiencies and establish a requirement for the Commission to take them into consideration outside the applicable regulatory framework without encroaching on its discretion in managing competition policy and merger control.
154.
It is true that the Court has already held that the Commission was required to take into account specific pro-competitive aspects relating to an agreement, which are relied on by the parties, as part of its economic context, in order to determine whether those alleged pro-competitive aspects are capable of calling into question the finding that that agreement constitutes a restriction of competition ‘by object’ and in order to assess whether it is necessary instead to examine whether there is a restriction of competition ‘by effect’, pursuant to Article 101(1) TFEU. (
59
) However, the Court has also clarified that such an approach did not involve the application of a ‘rule of reason’, as recognised in US competition law, which would require the Commission of its own motion to weigh all the pro-competitive and anticompetitive effects under paragraph 1 of that article alone, (
60
) such a weighing exercise having to be carried out under paragraph 3 thereof. (
61
)
155.
Similarly, there is no convincing reason to recognise, outside the regulatory framework applicable to merger control, a duty on the part of the Commission to include in its assessment of the existence of a significant impediment to effective competition, in particular arising from horizontal non-coordinated effects arising due to a concentration on an oligopolistic market, a default examination of efficiencies of the type required by the General Court in the present case. At most, it is the Commission’s task, in the exercise of its discretion in this area, particularly in the context of a possible revision of the Guidelines, to ascertain whether it is necessary to carry out such an analysis of its own initiative.
156.
However, as EU law currently stands, recital 29 of Regulation No 139/2004 confines itself to referring to any substantiated and likely efficiencies put forward by the undertakings concerned which the Commission must take into account in order to determine the impact of a concentration on competition in the internal market, efficiencies to which the General Court refers in paragraph 279 of the judgment under appeal. Similarly, pursuant to Section 9 of Annex I to Regulation No 802/2004, it is incumbent on the undertaking concerned to provide a description of each of those claimed efficiencies, together with supporting documents. Finally, the relevant criteria for taking such efficiencies into account are referred to in paragraphs 76 to 88 of the Guidelines.
157.
In those circumstances, I consider that the General Court erred in law in requiring the Commission, in paragraphs 277 to 279 of the judgment under appeal, to include in its UPP analysis ‘standard’ efficiencies not provided for by that legislation.
158.
Accordingly, the second part of the fourth ground of appeal must also be upheld and, consequently, this ground of appeal must be upheld in its entirety.
F.
The fifth ground of appeal, alleging an error of law in that the General Court failed to assess all the relevant factors and evidence
159.
By the fifth ground of appeal, the Commission complains that the General Court failed to assess whether the relevant factors and evidence as a whole supported the conclusion that the Commission had succeeded in establishing a significant impediment to effective competition in the present case. The Commission argues that the General Court incorrectly confined itself to examining certain factors and evidence supporting the first theory of harm and whether, taken separately, they were sufficient for that purpose. In that regard, the General Court distorted the decision at issue, substituted its economic assessment for that of the Commission, misapplied the relevant legal test and infringed its obligation to state reasons.
160.
As a preliminary point, I consider that, contrary to CK Telecoms’ assertions, the present ground of appeal is neither inadmissible nor ineffective on the ground that the Commission is asking the Court of Justice to rule that the General Court should fill gaps in the decision at issue and re-examine the concentration at issue. The Commission raises a question of law concerning the completeness of the General Court’s examination of the relevant legal factors and evidence and, consequently, concerning the rules governing the taking and assessment of evidence. That question of law is likely to have an impact on the validity of the General Court’s finding that the Commission failed to establish, to the requisite legal standard, the existence of a significant impediment to effective competition. The Commission complains that the General Court did not carry out an overall analysis of, or apply a weighting to, those factors and that evidence as a whole, as assessed in the decision at issue in the context of the various theories of harm, but confined itself to examining certain factors and evidence supporting the first theory of harm and whether those factors and evidence were sufficient for that purpose.
161.
As to the substance, it is important to recall that the Commission is required to support a decision finding that a concentration does or does not lead to a significant impediment to effective competition with sufficiently cogent and consistent evidence, (
62
) it being understood, as noted in point 55 above, that the standard of proof is perfectly symmetrical in that regard. (
63
)
162.
For their part, the EU Courts must, inter alia, not only establish whether the evidence relied on is factually accurate, reliable and consistent but also ascertain 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 supporting the conclusions drawn from it. (
64
) Therefore, the EU Courts are, in principle, required to verify the probative nature of the entirety of the relevant and consistent evidence (albeit challenged by the applicants) relied on by the Commission in order to establish the existence of a significant impediment to effective competition. Moreover, in paragraph 76 of the judgment under appeal, the General Court appears to have endorsed those principles.
163.
As with the standard of proof governing the application of Article 101(1) TFEU, (
65
) it is admittedly possible that each item of evidence adduced by the Commission may not in itself be sufficient to demonstrate that a concentration entails non-coordinated effects giving rise to a significant impediment to effective competition. However, such a demonstration may be based on a body of evidence and factors, viewed as a whole. This is consistent with the Commission’s approach set out in paragraph 26 of the Guidelines, according to which a number of factors, which taken separately are not necessarily decisive, may influence whether significant non-coordinated effects are likely to result from a merger, though not all of those factors, which are listed in a non-exhaustive manner in paragraphs 27 to 38 of those guidelines, need to be present for it to be concluded that such effects are likely. (
66
) In addition, as stated in points 64, 97 and 119 above, and as acknowledged in paragraph 287 of the judgment under appeal, the Commission adopted that approach in the decision at issue. (
67
)
164.
Conversely, it cannot be ruled out that certain factors or evidence may be particularly important, or even decisive, in the context of the analysis aimed at establishing the existence of a significant impediment to effective competition. In such a situation, it may therefore be sufficient for the EU Courts to find that such decisive factors or evidence are not sufficiently probative for the Commission’s approach to be declared invalid.
165.
The latter premiss appears to have guided the General Court, at least implicitly, in its findings in paragraphs 149, 171 to 173, 249 and 268 of the judgment under appeal, which are contested by the Commission in the context of the present ground of appeal, and in which the General Court found, in essence, that the factor or item of evidence considered, respectively, was not sufficient in itself to establish the existence of a significant impediment to effective competition.
166.
However, as is apparent from the assessment set out in points 93 to 100 and 118 to 122 above, paragraph 171 of the judgment under appeal, which concerns the examination of the concept of ‘important competitive force’, on the one hand, and paragraph 249 of that judgment, which concerns the examination of the criterion of closeness of competition, on the other hand, are vitiated by errors of law. In those paragraphs, the General Court errs in criticising the Commission for having considered those two factors as being, in themselves, sufficient to establish the existence of a significant impediment to effective competition. In so doing, the General Court erroneously attributed excessive weight to those factors in its assessment of the evidence and even regarded them as decisive for the purposes of the first theory of harm, even though the Commission had examined those factors only as one of a number of other factors in order to demonstrate the existence of such an impediment.
167.
In addition, as the Commission argues, the General Court assessed only some of the factors and evidence forming the basis of the conclusion in the decision at issue relating to the existence of a significant impediment to effective competition. Accordingly, although paragraphs 128 to 136 of the judgment under appeal summarise the main considerations set out in that decision concerning the first theory of harm, (
68
) the General Court considered that it was sufficient to invalidate that theory and, therefore, that decision in its entirety, inter alia on the ground that the two factors referred to in point 166 above were not such as to establish the ‘significant’ nature of the non-coordinated effects identified and of the resulting impediment to effective competition. It therefore decided not to assess the probative nature of the other factors and evidence examined for that purpose in recitals 330 to 1174 of the decision at issue.
168.
Similarly, in paragraph 268 of the judgment under appeal, with regard to the same theory of harm, the General Court held that the UPP analysis was not decisive evidence and could not suffice to demonstrate that the elimination of the important competitive constraints which the parties had exerted upon each other would result in a significant increase in prices and, consequently, a significant impediment to effective competition.
169.
Furthermore, as the Commission argues, the General Court considered, in paragraph 455 of the judgment under appeal, that it was not necessary to rule on whether the three theories of harm were independent or interdependent or on CK Telecoms’ other arguments and pleas. The General Court therefore failed to carry out its own overall analysis of the various factors and items of evidence, challenged by CK Telecoms, which underpinned those theories and formed the basis of the final conclusion in the decision at issue as to the existence of a significant impediment to effective competition.
170.
Finally, it is apparent, in particular, from paragraphs 291, 397, 417, 418 and 454 of the judgment under appeal, as well as from point 32 above, that the General Court, in resolving the dispute, assessed and upheld or rejected only some of the pleas, parts of pleas, complaints and arguments raised by CK Telecoms.
171.
It follows that the Commission is entitled to complain that the General Court, for the purpose of annulling the decision at issue, carried out a selective and unbalanced or even deficient assessment of the factors and evidence, which were nevertheless regarded as relevant in that decision in the light of paragraphs 26 to 38 of the Guidelines, as well as of the pleas and complaints put forward by CK Telecoms in that regard. Such an approach is contrary to the requirements governing the judicial review of evidence, as recalled in points 162 and 163 above.
172.
CK Telecoms cannot call that conclusion into question by relying on paragraphs 284 to 291 of the judgment under appeal, concerning the overall assessment of non-coordinated effects, even though the Commission failed to challenge that assessment in its appeal.
173.
It is true that, in support of the present ground of appeal, the Commission gives only marginal consideration to that assessment. (
69
) Similarly, it has not directly called into question paragraph 289 of that judgment, in which the General Court criticised the Commission for not having ‘specif[ied] in the [decision at issue] whether the non-coordinated effects identified would be “significant” or would result … in a significant impediment to effective competition, as it asserts in recital 1227 of th[at] decision’. (
70
)
174.
However, it must be noted that, in paragraphs 284 to 291 of the judgment under appeal, the General Court simply responded to CK Telecoms’ complaint that the Commission had failed to ‘state’, in the context of its overall assessment, the reasons why it concluded that the alleged non-coordinated effects and, consequently, the alleged impediment to effective competition were ‘significant’. (
71
) The fact that paragraph 288 of that judgment refers, for that purpose, to three factors relevant to that assessment does not imply that the General Court re-examined their probative nature. That is confirmed by the wording used at the beginning of paragraph 289 of that judgment (‘irrespective of the probative value of that body of evidence and circumstances’). Accordingly, the General Court’s examination in that regard is similar to the examination of a lack of adequate reasoning in the decision at issue in support of the overall assessment of the relevant factors and evidence, as is also shown by the use of the verb ‘to specify’ and the use of the expression ‘cursory reference’.
175.
It follows that, contrary to CK Telecoms’ view, paragraphs 284 to 291 of the judgment under appeal are not such as to establish that the General Court fulfilled its duty to review those items of evidence, as referred to in points 162 and 163 above.
176.
I conclude from this that the General Court erred in law by misconstruing the scope of the review which it ought to have carried out relating to the relevant factors and evidence underpinning the finding in the decision at issue that there was a significant impediment to effective competition.
177.
Consequently, the present ground of appeal must be upheld, there being no need to rule on whether, by following that course of action, the General Court also substituted its economic assessment for that of the Commission, disregarded the relevant legal test or infringed its obligation to state reasons.
G.
The sixth ground of appeal, alleging distortion of the decision at issue and breach of the obligation to state reasons
1. The effectiveness of the sixth ground of appeal
178.
By its sixth ground of appeal, the Commission complains that the General Court, first, distorted the decision at issue by concluding, in paragraphs 358 to 361 of the judgment under appeal, that the Commission had not examined the possible degradation of the quality of the merged entity’s network after the concentration at issue and, second, breached its obligation to state reasons when it upheld the sixth part of the third plea raised at first instance.
179.
CK Telecoms contends that the sixth ground of appeal is ineffective on the ground that the Commission is not challenging the General Court’s main findings relating to the second theory of harm. In particular, the Commission is not calling into question the findings set out in paragraphs 325, 330, 340, 344, 346 and 347 of the judgment under appeal, which led the General Court to conclude in paragraph 348 of that judgment that the Commission erred in finding that lasting disruption to a network-sharing agreement was likely to significantly impede competition exerted by the partner to such an arrangement. Nor is the Commission calling into question the General Court’s main findings, set out in paragraphs 362 to 397 of the judgment under appeal, concerning the effects of the concentration at issue on BT/EE and Vodafone. However, all those undisputed findings led the General Court to reject the second theory of harm.
180.
As the Commission argues, it did not find, in the decision at issue, and in particular in the context of its second theory of harm, that there was a significant impediment to effective competition solely on the basis of a misalignment of the interests of the partners in a network-sharing agreement, since that misalignment was only one of the factors which it took into account in its analysis. (
72
) Accordingly, the fact that, in the context of the present ground of appeal, the Commission is not disputing the findings set out in paragraphs 347 and 348 of the judgment under appeal cannot render that ground of appeal ineffective. It follows, in essence, from those findings that a possible misalignment of the interests of the partners in a network-sharing agreement and a disruption of pre-existing network-sharing arrangements do not constitute, as such, a significant impediment to competition. The Commission therefore incorrectly found that such a lasting disruption would be likely significantly to impede competition exerted by the partner to such an arrangement. However, the present ground of appeal also concerns the other factors which the Commission took into consideration in order to establish, in the context of the second theory of harm, that the concentration at issue would give rise to a significant impediment to effective competition.
181.
Moreover, as stated, inter alia, in paragraph 361 of the judgment under appeal, the General Court examined, in paragraphs 362 to 397 of that judgment, whether the Commission’s analysis concerning the effects of the concentration on BT/EE and Vodafone was based on ‘particularly solid and convincing reasoning’. To that end, the General Court started from the premiss, set out in paragraphs 358 to 361 of that judgment and challenged in the first part of the present ground of appeal, that the decision at issue did not include an analysis of ‘a degradation of the services offered by the merged entity or of the quality of its own network’. However, since those findings constitute the very basis of the General Court’s appraisal, in paragraphs 362 to 397 of that judgment, of the probative value of the evidence assessed in the decision at issue in order to establish the effects of the concentration at issue on BT/EE and Vodafone, the mere fact that the Commission does not contest that appraisal does not mean that the sixth ground of appeal is ineffective.
182.
It is therefore necessary to examine the substance of the two parts of the present ground of appeal.
2. The first part of the sixth ground of appeal, alleging distortion of the decision at issue
183.
By the first part of the sixth ground of appeal, the Commission argues that, in incorrectly finding, in paragraphs 358 to 361 of the judgment under appeal, that the Commission had not assessed a possible degradation of the quality of the merged entity’s network, the General Court distorted the decision at issue and erroneously concluded that the second theory of harm had to be rejected. The Commission states, in essence, that, in particular in recitals 1558 to 1562 and 1732 to 1742 of that decision, it assessed the risk of a reduction in the quality of the merged entity’s network, as well as the reduction in competitive pressure exerted on the other mobile network operators which would result therefrom.
184.
CK Telecoms notes that the second theory of harm comprises two sub-theories concerning the network-sharing agreements. Paragraphs 358 to 361 of the judgment under appeal, which are contested by the Commission, form part of the General Court’s analysis concerning the first sub-theory of harm, namely that there would be a reduction of competitive pressure exerted by the other competitors, namely BT/EE or Vodafone, on the merged entity. According to CK Telecoms, none of the recitals of the decision at issue relied on by the Commission, which in the Commission’s view include an analysis of the degradation of the merged entity’s network, relates to the first sub-theory. Those recitals relate only to the second sub-theory of harm, namely that relating to the possible reduction in overall investment resulting from increased transparency, which was examined in paragraphs 398 to 418 of the judgment under appeal.
185.
As a preliminary point, it should be recalled that, as is apparent from paragraph 292 of the judgment under appeal, during the administrative procedure, Three submitted two network consolidation plans, namely ‘plan [A]’ and ‘plan [B]’. (
73
) Those plans were based on two network-sharing agreements, (i) between BT/EE and Three, namely MBNL, and (ii) between Vodafone and O2, namely Beacon, through which those operators had consolidated their respective networks in order to be able to share roll-out costs while continuing to compete at the retail level. Under those plans, the merged entity was not expected to maintain two separate networks in the long term, rather, as stated in paragraphs 410, 413 and 416 of the judgment under appeal, it was envisaged that a single consolidated network would be created.
186.
In the context of the second theory of harm relating to the network-sharing agreements, the Commission developed two sub-theories. (
74
) The first of those sub-theories is, in essence, that the concentration at issue could lead to a reduction of competitive pressure exerted on the merged entity by other competitors, whether BT/EE or Vodafone, (
75
) while the second concerns the resulting network-sharing situation which would lead to a reduction in industry-wide investments in network infrastructure. It is apparent from recital 1233 of the decision at issue that that concentration might lead to a loss of synergies affecting the partners in the network-sharing agreements and allow opportunistic investment behaviour by the merged entity, thereby reducing industry-wide investments and, consequently, the level of effective competition which would have prevailed in the absence of the concentration. (
76
) In addition, having emphasised, in recitals 1235 to 1243 of that decision, the importance of an alignment of interests between the partners in a network-sharing agreement, the Commission examined, in recitals 1244 to 1784 of that decision, the network consolidation plans in the light of those two sub-theories of harm.
187.
Possible market developments subsequent to the concentration at issue are set out in recitals 1368 to 1784 of the decision at issue, recitals 1391 to 1567 of which refer to the effects of plan [A] and recitals 1598 to 1749 of which refer to the effects of plan [B]. It is in that context that the Commission examined, respectively, those effects, first of all, on BT/EE and in particular on the MBNL network, next, on Vodafone and in particular on the Beacon network, and, finally, on overall investment in the networks concerned. In addition, in the context of its analysis of the impact of those plans on overall investment in the respective networks, the Commission noted, inter alia, in recitals 1556 to 1562 and recitals 1732 to 1742 of the decision at issue, respectively, that increased transparency of investment between mobile network operators could reduce their incentive to invest in the networks and thus have a significant negative impact on industry-wide investment in those networks.
188.
In particular, on the one hand, in recitals 1559 to 1561 and 1734 of the decision at issue, the Commission found, in essence, that, as a result of that increased transparency, the merged entity could be made aware of investments by BT/EE in technology for the benefit of the MBNL network and thus itself decide to implement such technology for the benefit of the Beacon network [confidential]. Conversely, according to the Commission, Vodafone might become aware that the merged entity intended to implement such technology and thus have an incentive to refrain from making such technological investments until the merged entity has done so. On the other hand, in recitals 1735 and 1736 of that decision, the Commission considered that, under plan [B], the merged entity could be informed of the investments planned by BT/EE or Vodafone and have an incentive to make similar investments, both in the east and in the west of the United Kingdom [confidential]. In recital 1737 of that decision, the Commission concluded that increased transparency would entail the risk that BT/EE and Vodafone would wait for the merged entity to make such investments in the development of significant new technologies before making such investments themselves.
189.
In accordance with the premiss set out in recital 1275 of the decision at issue that an alternative way of reducing the competitive pressure exerted by one partner to a network-sharing agreement is to degrade network quality by blocking or frustrating network investments by another partner to that agreement, the Commission therefore carried out an analysis of possible degradation of the quality of both the MBNL network and the Beacon network by establishing a link between, first, the blocking or frustration of investments and, second, that degradation. It also follows that the Commission considered from the outset that the reduction in competitive pressure could consist, inter alia, in such a degradation by the merged entity of the quality of its own network, as set out in paragraph 358 of the judgment under appeal.
190.
It is therefore clear from the grounds of the decision at issue that the General Court erred in criticising the Commission, in paragraphs 358 and 361 of the judgment under appeal, for failing to analyse, in that decision, ‘the non-coordinated effects of the merger [at issue] in relation to a possible exercise of market power, in the form of a degradation of the services offered by the merged entity or of the quality of its own network’. The General Court also erred in considering that the ‘absence of a thorough examination of that issue constitutes a weakness in [its] analysis … in the … decision [at issue], which, in order to succeed, would require particularly solid and convincing reasoning in relation to the effects on competitors’.
191.
That assessment cannot be invalidated by CK Telecoms’ formalistic argument that, from the point of view of the structure of the decision at issue, the Commission assessed the effects of plan [A] and plan [B] on overall investments in the respective networks under two separate headings.
192.
It is true that, first, the ‘effects of the [plan A or B] on overall network investments’ are examined, respectively, in recitals 1555 et seq. and 1725 et seq. of that decision, that is to say in the context of the assessment of the second sub-theory of harm. Second, paragraphs 358 to 361 of the judgment under appeal, which are contested by the Commission, set out general considerations of the General Court concerning the first sub-theory of harm, according to which a reduction in competitive pressure exerted on the merged entity’s competitors could be observed. However, in its analysis of the effects of the two network consolidation plans on BT/EE and Vodafone and on overall investment in those networks, as recalled in points 187 and 188 above, the Commission drew no formal distinction based on the sub-theory advanced, but, on the contrary, cross-referenced the various relevant parts of the decision at issue. (
77
)
193.
I therefore conclude that the General Court distorted the content of the decision at issue and that the first part of the sixth ground of appeal must be upheld.
3. The second part of the sixth ground of appeal, alleging breach of the obligation to state reasons
194.
By the second part of the sixth ground of appeal, the Commission argues that the General Court breached its obligation to state reasons. According to the Commission, the grounds of the judgment under appeal do not permit it to know why the General Court upheld the sixth part of the third plea raised at first instance, nor do they enable the Court of Justice to exercise, in that regard, its power of review in respect of the judgment under appeal.
195.
It should be noted that, by the sixth part of the third plea relied on before the General Court, CK Telecoms criticised the Commission for having made an error of law and manifest errors of assessment in its analysis of the effects of the concentration at issue on network investments, in particular in relation to the mechanism, provided for in plan [B], giving rise to increased transparency of investments as between mobile network operators which could diminish their incentive to invest in those networks. (
78
) More specifically, according to CK Telecoms, those errors consisted, on the one hand, in the Commission’s erroneous characterisation of its concerns as relating to ‘non-coordinated effects’, even though they related to ‘coordinated effects’ within the meaning of paragraph 22 of the Guidelines, and, on the other hand, in the Commission’s failure to have regard to the fact that the commitments offered by CK Telecoms were not intended to address the concern relating to a reduction in those investments in those networks.
196.
In paragraphs 402 to 407 of the judgment under appeal, the General Court first of all examined the recitals of the decision at issue which related to the possible reduction in overall investments in those networks resulting from that increased transparency. Next, in paragraph 408 of that judgment, the General Court found that ‘a particular difficulty in the present case, in relation to the judicial review which the [General] Court [had to] carry out of the … decision [at issue], [wa]s that the Commission [had] failed to set out the appropriate time frame within which it intend[ed] to establish a significant impediment to effective competition’.
197.
In addition, paragraph 410 of the judgment under appeal states that it is established, in particular in recitals 1239 and 1244 of the decision at issue, that, whatever the network consolidation plan ultimately adopted by the parties to the concentration, those parties would not maintain two separate networks in the long term (
79
) and that ‘it does not appear that the long term was taken into consideration [by the Commission] as the appropriate time frame for assessing the effects of the concentration [at issue]’.
198.
In paragraph 415 of the judgment under appeal it is stated that ‘the analysis of the effects of a concentration on an oligopolistic market in the telecommunications sector which requires long-term investment and where consumers are often tied by contracts over several years is a dynamic prospective analysis which requires account to be taken of any coordinated or unilateral effects over a relatively long period of time in the future’.
199.
The General Court concluded, in essence, in paragraphs 416 and 417 of the judgment under appeal, that, in view of the fact that the parties to the concentration would not maintain two separate networks in the long term, the Commission had erred in law in classifying the effect on overall network investments of increased transparency as a non-coordinated effect, ‘in so far as [the second sub-theory] is based on the [erroneous] assumption of the existence of two separate networks’.
200.
However, it must be noted that neither in the application (
80
) nor in the reply (
81
) submitted at first instance did CK Telecoms criticise the Commission for failing to set out or analyse the appropriate time frame with respect to which it intended to establish the existence of non-coordinated effects and a significant impediment to effective competition. On the contrary, as is apparent from point 195 above, the assessment by the General Court referred to in point 199 above is not derived from complaints which were raised by CK Telecoms. The General Court’s reasoning in paragraphs 408 and 415 of the judgment under appeal, recalled in point 196 above, indicates that the General Court examined of its own motion (
82
) the complaint based on failure to specify the ‘time frame’ and on the analysis of non-coordinated effects ‘in the long term’.
201.
It follows that the General Court’s response to the sixth part of the third plea raised before it, set out in paragraphs 398 to 416 of the judgment under appeal and based on a matter which it raised of its own motion, is consistent neither with the complaints raised by CK Telecoms nor with the conclusion, contained in paragraph 417 of that judgment, on the basis of which the General Court upheld that part of the third plea. Those paragraphs are therefore vitiated by contradictory reasoning in breach of the obligation to state reasons on which judgments are based. (
83
)
202.
The second part of the sixth ground of appeal therefore must also be upheld and, consequently, that ground of appeal must be upheld in its entirety.
V. Referral of the case back to the General Court
203.
In accordance with Article 61 of the Statute of the Court of Justice of the European Union, if the appeal is well founded, the Court of Justice is to quash the decision of the General Court. It may itself either give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the General Court for a fresh ruling on that case.
204.
It follows from all the foregoing considerations that the appeal is well founded and that the judgment under appeal must be set aside in its entirety, in particular on the basis of the errors of law identified in the context of the assessment of the first to third grounds of appeal.
205.
However, irrespective of the question whether the Court of Justice should also be required to assess the other grounds of appeal for the purposes of setting aside the judgment under appeal, I consider that it does not have the necessary information to give final judgment on all the pleas raised at first instance. It is apparent, in particular, from paragraphs 291, (
84
) 397, (
85
) 417, 418 (
86
) and 454 (
87
) of the judgment under appeal, as well as from point 32 above, that the General Court, in resolving the dispute, assessed and upheld or rejected only some of the pleas, parts of pleas, complaints and arguments raised by CK Telecoms. In addition, the General Court failed to give a ruling on the fifth plea, challenging the assessment of certain commitments offered by that company. (
88
) Finally, in so doing, the General Court avoided giving a ruling on all the factors and evidence which the Commission assessed in the decision at issue (
89
) in reaching the conclusion that the concentration at issue would give rise to non-coordinated effects and fulfilled the requirements of a significant impediment to effective competition, for the purposes of Article 2(3) of Regulation No 139/2004, factors and evidence which CK Telecoms disputed.
206.
Accordingly, I am of the view, as is the Commission, that the state of the proceedings does not permit the Court of Justice to give judgment and that the case must be referred back to the General Court for it to adjudicate on the dispute as a whole, the costs being reserved.
VI. Conclusion
207.
In the light of the foregoing considerations, I propose that the Court should:
(1)
set aside the judgment of the General Court of the European Union of 28 May 2020, CK Telecoms UK Investments v Commission (T‑399/16, EU:T:2020:217);
(2)
refer the case back to the General Court of the European Union;
(3)
reserve the costs.
(
1
)	Original language: French.
(
2
)	Judgment of 15 February 2005 (C‑12/03 P, EU:C:2005:87).
(
3
)	Judgment of 10 July 2008 (C‑413/06 P, EU:C:2008:392).
(
4
)	OJ 2004 L 24, p. 1.
(
5
)	OJ 2004 C 31, p. 5.
(
6
)	T‑399/16, EU:T:2020:217.
(
7
)	Case COMP/M.7612 – Hutchison 3G UK/Telefónica UK.
(
8
)	C‑413/06 P, EU:C:2008:392, paragraph 46 et seq.
(
9
)	C‑376/20 P, not published, EU:C:2020:789.
(
10
)	C‑376/20 P, not published, EU:C:2021:81.
(
11
)	C‑376/20 P, not published, EU:C:2021:488.
(
12
)	On the need to distinguish clearly between those different concepts, see Kalintiri, A., Evidence Standards in EU Competition Enforcement – The EU Approach, Hart Publishing, Oxford, 2019, p. 78 et seq.; Nehl, H.P., ‘Judicial review of complex socio-economic, technical, and scientific assessments in the European Union’, in Mendes, J. (ed.), EU Executive Discretion and the Limits of Law, Oxford University Press, 2019, pp. 180 and 181.
(
13
)	OJ 1989 L 395, p. 1, and corrigendum OJ 1990 L 257, p. 13.
(
14
)	‘A concentration which creates or strengthens a dominant position as a result of which effective competition would be significantly impeded in the common market or in a substantial part of it shall be declared incompatible with the common market’ (emphasis added).
(
15
)	Judgments of 31 March 1998, France and Others v Commission (C‑68/94 and C‑30/95, EU:C:1998:148, paragraphs 223 and 224); of 15 February 2005, Commission v Tetra Laval (C‑12/03 P, EU:C:2005:87, paragraph 38); and of 10 July 2008, Bertelsmann and Sony Corporation of America v Impala (C‑413/06 P, EU:C:2008:392, paragraphs 144 and 145).
(
16
)	As already recalled in my Opinion in T-Mobile Netherlands and Others (C‑8/08, EU:C:2009:110, point 80, footnote 60), the standard of proof determines the requirements which must be satisfied for facts to be regarded as proven. It must be distinguished from the burden of proof, which is not disputed in the present case. The burden of proof determines, first, which party must put forward the facts and, where necessary, adduce the related evidence (subjektive or formelle Beweislast, also known as the evidential burden); second, the allocation of that burden determines which party bears the risk of facts remaining unresolved or allegations unproven (objektive or materielle Beweislast). In addition, see my analysis in Kokott, J., Beweislastverteilung und
Prognoseentscheidungen bei der Inanspruchnahme von Grund- und Menschenrechten, Berlin and Heidelberg 1993, p. 12 et seq.
(
17
)	Judgment of 15 February 2005, Commission v Tetra Laval (C‑12/03 P, EU:C:2005:87, paragraph 39).
(
18
)	Paragraphs 77 to 105 of the judgment under appeal.
(
19
)	Paragraphs 106 to 119 of the judgment under appeal.
(
20
)	Paragraphs 174, 189, 190, 197, 198, 216 and 225 of the judgment under appeal.
(
21
)	C‑413/06 P, EU:C:2008:392, paragraphs 46 to 52; see also my Opinion in Bertelsmann and Sony Corporation of America v Impala (C‑413/06 P, EU:C:2007:790, points 203 to 225).
(
22
)	See my more explicit position in relation to this point in my Opinion in Bertelsmann and Sony Corporation of America v Impala (C‑413/06 P, EU:C:2007:790, points 207 and 208).
(
23
)	Judgment of 10 July 2008, Bertelsmann and Sony Corporation of America v Impala (C‑413/06 P, EU:C:2008:392, paragraphs 47, 51 and 52); see also judgment of 15 February 2005, Commission v Tetra Laval (C‑12/03 P, EU:C:2005:87, paragraph 43).
(
24
)	See my Opinion in Bertelsmann and Sony Corporation of America v Impala (C‑413/06 P, EU:C:2007:790, points 210 and 211); see also, to that effect, judgment of 11 December 2013, Cisco Systems and Messagenet v Commission (T‑79/12, EU:T:2013:635, paragraph 47).
(
25
)	Opinion of Advocate General Tizzano in Commission v Tetra Laval (C‑12/03 P, EU:C:2004:318, points 74 and 76). The fact that, in the present case, the General Court endorsed that higher standard of proof and rejected the one which I had proposed in Bertelsmann and Sony Corporation of America v Impala (C‑413/06 P, EU:C:2007:790) is confirmed by paragraph 118 in fine of the judgment under appeal, which contains a reference to my Opinion in that case Bertelsmann and Sony Corporation of America v Impala (points 209 to 211), preceded by the phrase ‘a contrario’.
(
26
)	See my Opinion in Bertelsmann and Sony Corporation of America v Impala (C‑413/06 P, EU:C:2007:790, point 210). As regards the overlap between the concept of manifest error of assessment and the concept of the standard of proof required, see Nehl, H.P., (footnote 12 to the present Opinion), pp. 180 and 181.
(
27
)	See, to that effect, judgments of 15 February 2005, Commission v Tetra Laval (C‑12/03 P, EU:C:2005:87, paragraphs 41 and 44), and of 10 July 2008, Bertelsmann and Sony Corporation of America v Impala (C‑413/06 P, EU:C:2008:392, paragraph 51). See also my Opinion in Bertelsmann and Sony Corporation of America v Impala (C‑413/06 P, EU:C:2007:790, point 204 et seq.).
(
28
)	Judgments of 15 February 2005, Commission v Tetra Laval (C‑12/03 P, EU:C:2005:87, paragraph 39), and of 10 July 2008, Bertelsmann and Sony Corporation of America v Impala (C‑413/06 P, EU:C:2008:392, paragraph 145).
(
29
)	See, to that effect, judgments of 15 February 2005, Commission v Tetra Laval (C‑12/03 P, EU:C:2005:87, paragraph 44), and of 10 July 2008, Bertelsmann and Sony Corporation of America v Impala (C‑413/06 P, EU:C:2008:392, paragraphs 50 and 51). See also my Opinion in Bertelsmann and Sony Corporation of America v Impala (C‑413/06 P, EU:C:2007:790, point 204 et seq.).
(
30
)	Paragraph 110 in fine of the judgment under appeal referring to the judgment of 10 July 2008, Bertelsmann and Sony Corporation of America v Impala (C‑413/06 P, EU:C:2008:392, paragraph 51).
(
31
)	See also points 99 and 111 below of the present Opinion.
(
32
)	See also, to that effect, Opinions of Advocate General Szpunar in Planet49 (C‑673/17, EU:C:2019:246, point 71), and of Advocate General Richard de la Tour in Sofiyska rayonna prokuratura and Others (Trial of an accused person removed from the territory) (C‑420/20, EU:C:2022:157, point 68).
(
33
)	Judgments of 13 December 2012, Expedia (C‑226/11, EU:C:2012:795, paragraph 29); of 11 July 2013, Ziegler v Commission (C‑439/11 P, EU:C:2013:513, paragraphs 59 and 60); of 6 October 2015, Post Danmark (C‑23/14, EU:C:2015:651, paragraph 52); and of 20 January 2016, DHL Express (Italy) and DHL Global Forwarding (Italy) (C‑428/14, EU:C:2016:27, paragraph 33).
(
34
)	See paragraph 9 et seq. and paragraph 20 of the Communication from the Commission – Guidance on the Commission’s enforcement priorities in applying Article [102 TFEU] to abusive exclusionary conduct by dominant undertakings (OJ 2009 C 45, p. 7), which take into account, inter alia, constraints imposed by the existing supplies from, and the position on the market of, actual competitors, constraints imposed by the credible threat of future expansion by actual competitors or entry by potential competitors, and constraints imposed by the bargaining strength of the undertaking’s customers.
(
35
)	Paragraph 336 et seq., in particular paragraphs 360, 367, 375 and 396 of the judgment under appeal.
(
36
)	See, to that effect, judgments of 28 June 2005, Dansk Rørindustri and Others v Commission (C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraphs 209 and 211), and of 11 July 2013, Ziegler v Commission (C‑439/11 P, EU:C:2013:513, paragraphs 59 and 60).
(
37
)	Judgments of 28 June 2005, Dansk Rørindustri and Others v Commission (C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraph 211), and of 11 July 2013, Ziegler v Commission (C‑439/11 P, EU:C:2013:513, paragraph 60).
(
38
)	See for the analogous concepts of ‘restriction of competition’ and ‘abuse of a dominant position’, respectively, judgments of 30 January 2020, Generics (UK) and Others (C‑307/18, EU:C:2020:52, paragraph 63 et seq. and paragraph 146 et seq.), and of 12 May 2022, Servizio Elettrico Nazionale and Others (C‑377/20, EU:C:2022:379, paragraph 42 et seq.).
(
39
)	See judgment of 15 July 2021, FBF (C‑911/19, EU:C:2021:599, paragraphs 53 to 56), and my Opinion in Expedia (C‑226/11, EU:C:2012:544, point 46 and the case-law cited).
(
40
)	Such examples of legal conceptualisation can be found, inter alia, in the judgments of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg (C‑280/00, EU:C:2003:415, paragraph 88 et seq.), concerning the concept of advantage linked to the performance of a ‘service of general economic interest’; of 6 September 2006, Portugal v Commission (C‑88/03, EU:C:2006:511, paragraph 52 et seq.), concerning the concept of selectivity of a tax advantage, and of 14 October 2010, Deutsche Telekom v Commission (C‑280/08 P, EU:C:2010:603, paragraph 163 et seq.), concerning the concept of ‘margin squeeze’ of competitors as an abusive practice.
(
41
)	Emphasis added.
(
42
)	Emphasis added.
(
43
)	See recital 308 et seq. of the decision at issue.
(
44
)	See recital 316 et seq. of the decision at issue.
(
45
)	See judgment of 25 July 2018, Orange Polska v Commission (C‑123/16 P, EU:C:2018:590, paragraph 75).
(
46
)	See paragraphs 169 and 174 of the judgment under appeal.
(
47
)	Emphasis added.
(
48
)	See the case-law cited in point 85 of the present Opinion.
(
49
)	See recital 463 of the decision at issue and paragraph 227 of the judgment under appeal.
(
50
)	See the summary set out in paragraphs 128 to 136 of the judgment under appeal.
(
51
)	See also paragraphs 238 and 239 of the judgment under appeal.
(
52
)	According to the definition set out in footnote 39 to paragraph 29 of the Guidelines, the diversion ratio from product A to product B measures the proportion of the sales of product A lost due to a price increase of product A that are captured by product B.
(
53
)	See also the summary of the first theory of harm set out in paragraphs 128 to 136 of the judgment under appeal.
(
54
)	As regards the application of those rules in competition law, see, inter alia, my Opinion in Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission (C‑105/04 P, EU:C:2005:751, points 72 to 74).
(
55
)	See recital 1197, 1223 and 2340 et seq. of the decision at issue.
(
56
)	See references in Monti, G., ‘EU Merger Control After CK Telecoms UK Investments v Commission’, World Competition, Vol. 43, No 4, 2020, pp. 447, 453 to 456, in particular footnote 34.
(
57
)	Monti, G., (footnote 56 of the present Opinion), p. 455.
(
58
)	Commission Regulation of 7 April 2004 implementing Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings (OJ 2004 L 133, p. 1).
(
59
)	Judgment of 30 January 2020, Generics (UK) and Others (C‑307/18, EU:C:2020:52, paragraphs 103 and 105); see also my Opinion in Generics (UK) and Others (C‑307/18, EU:C:2020:28, points 158 to 166).
(
60
)	Judgment of 30 January 2020, Generics (UK) and Others (C‑307/18, EU:C:2020:52, paragraph 104); see also my Opinion in Generics (UK) and Others (C‑307/18, EU:C:2020:28, point 148 et seq.).
(
61
)	See, to that effect, judgments of 18 September 2001, M6 and Others v Commission (T‑112/99, EU:T:2001:215, paragraphs 77 and 78), and of 30 June 2016, CB v Commission (T‑491/07 RENV, not published, EU:T:2016:379, paragraphs 69 and 70).
(
62
)	See, to that effect, judgment of 10 July 2008, Bertelsmann and Sony Corporation of America v Impala (C‑413/06 P, EU:C:2008:392, paragraph 50 and the case-law cited).
(
63
)	See, to that effect, judgment of 10 July 2008, Bertelsmann and Sony Corporation of America v Impala (C‑413/06 P, EU:C:2008:392, paragraphs 46 and 51).
(
64
)	Judgments of 15 February 2005, Commission v Tetra Laval (C‑12/03 P, EU:C:2005:87, paragraph 39), and of 10 July 2008, Bertelsmann and Sony Corporation of America v Impala (C‑413/06 P, EU:C:2008:392, paragraph 145).
(
65
)	See judgment of 26 January 2017, Commission v Keramag Keramische Werke and Others (C‑613/13 P, EU:C:2017:49, paragraph 52 and the case-law cited).
(
66
)	See also, to that effect, judgment of 9 July 2007, Sun Chemical Group and Others v Commission (T‑282/06, EU:T:2007:203, paragraphs 56 and 57).
(
67
)	See, inter alia, recitals 1175 to 1225 and, in particular, recitals 1226 and 1227 of the decision at issue.
(
68
)	See recitals 330 to 1174 of the decision at issue. In particular, the General Court took into account the following factors and evidence: prior to the concentration, O2 exerted an important competitive constraint and, in the absence of the concentration, would continue to do so (recitals 778 to 872 of the decision at issue; see paragraph 132 of the judgment under appeal); the merged entity will have less incentive to compete aggressively after the concentration (recitals 873 to 906 of the decision at issue; see paragraph 133 of the judgment under appeal); the other two mobile network operators have primarily focused competition on value generation and on customer retention, and are unlikely to have the same ability to compete after the concentration at issue and, in any event, are likely to be disinclined to compete aggressively (recitals 907 to 960 of the decision at issue; see paragraph 135 of the judgment under appeal); the non-MNOs cannot compensate for the significant loss of competition resulting from the concentration at issue, and it is likely that the limited competitive pressure which they exert will be further reduced after that concentration (paragraphs 961 to 1148 of the decision at issue; see paragraph 136 of the judgment under appeal). However, the General Court made no reference to the content of recitals 1149 to 1174 of the decision at issue, concerning competition from independent specialist retailers.
(
69
)	See paragraph 116, footnote 53, of its appeal and paragraphs 146 and 147 of CK Telecoms’ response.
(
70
)	In paragraph 120 of its appeal, although without directly referring to paragraph 289 of the judgment under appeal, the Commission confines itself to asserting that the threshold of ‘significant’ in nature relates to the concept of ‘significant impediment to effective competition’, as implemented by the Guidelines, and not, individually, to the various findings forming part of a theory of harm. Similarly, in footnote 68 to paragraph 127 of that appeal, the Commission states only by way of example that the General Court ‘has not sought to determine whether, in combination with the other negative effects caused by the concentration [at issue], the overall competitive harm likely to result from the concentration would be significant’.
(
71
)	By the seventh part of the first plea at first instance, to which a response is given in paragraphs 286 to 291 of the judgment under appeal, CK Telecoms complained that the Commission, in essence, had failed to make an overall assessment of the existence of non-coordinated effects and failed to state the reasons why it had concluded, in recitals 1226 and 1227 of the decision at issue, that the alleged constraints removed by the concentration at issue are important within the meaning of paragraph 25 of the Guidelines and that the alleged impediments to competition brought about by the concentration are significant within the meaning of Article 2(3) of Regulation No 139/2004.
(
72
)	See recital 1228 et seq. of the decision at issue.
(
73
)	The square brackets contain confidential information, referred to in the public version of the judgment under appeal as ‘plan [A] and plan [B]’.
(
74
)	See recitals 1229 to 1234 of the decision at issue and paragraph 295 of the judgment under appeal.
(
75
)	See recital 1232 of the decision at issue and paragraph 298 of the judgment under appeal.
(
76
)	See also paragraph 299 of the judgment under appeal.
(
77
)	See recitals 1733 and 1737 of the decision at issue.
(
78
)	See recitals 1732 to 1742 of the decision at issue and paragraphs 398 and 399 of the judgment under appeal.
(
79
)	See also paragraph 416 of the judgment under appeal.
(
80
)	See paragraphs 205 to 215 of the application.
(
81
)	See paragraphs 133 to 138 of the reply.
(
82
)	In the absence of an express complaint to that effect by the Commission, there is no need to examine whether that approach infringes the principle ‘ne ultra petita’; see, in that regard, judgment of 14 November 2017, British Airways v Commission (C‑122/16 P, EU:C:2017:861, paragraph 81 and the case-law cited).
(
83
)	See judgments of 19 January 2017, Commission v Total and Elf Aquitaine (C‑351/15 P, EU:C:2017:27, paragraph 19 and the case-law cited), and of 11 June 2020, Commission v Di Bernardo (C‑114/19 P, EU:C:2020:457, paragraph 55 and the case-law cited).
(
84
)	That paragraph upholds CK Telecoms’ first plea, but does not rule on the sixth and seventh parts thereof.
(
85
)	That paragraph confines itself to upholding the third, fourth and fifth parts of CK Telecoms’ third plea.
(
86
)	Those paragraphs uphold the sixth part of the third plea, but do not rule on the ‘other parts of that plea’, that is to say its first, second and seventh parts.
(
87
)	That paragraph upholds the first three parts of the fourth plea, but does not rule on the fourth, fifth and sixth parts of that plea.
(
88
)	See paragraphs 125 and 455 of the judgment under appeal.
(
89
)	See, in particular, points 122 and 180 of the present Opinion.