Keywords

Summary



Keywords

1. Appeals – Grounds – Review by the Court of Justice of the assessment of the evidence – Possible only where the clear sense of the evidence has been distorted

(Art. 225 EC; Statute of the Court of Justice, Art. 58)

2. Competition – Concentrations – Administrative procedure – Statement of objections – Necessary content – Limits – Observance of the rights of defence

(Council Regulation No 4064/89, Art. 18)

3. Appeals – Grounds – Inadequate or contradictory grounds – Admissibility – Scope of the obligation to state reasons

(Art. 225 EC; Statute of the Court of Justice, Art. 58)

4. Non-contractual liability – Conditions – Sufficiently serious breach of Community law

(Art. 288, second para., EC)

5. Competition – Concentrations – Administrative procedure – Statement of objections – Necessary content – Observance of the rights of defence

(Council Regulation No 4064/89, Art. 18(3))

6. Appeals – Grounds – Mistaken assessment of the facts – Inadmissibility – Review by the Court of Justice of the assessment of the evidence – Possible only where the clear sense of the evidence has been distorted – Review by the Court of Justice of whether there is a causal link between a wrongful act and any damage – Included

(Art. 225 EC; Statute of the Court of Justice, Art. 58, first para.)

7. Non-contractual liability – Conditions – Unlawfulness – Damage – Causal link

(Art. 288, second para., EC)

Summary

1. The finding of facts and the appraisal of evidence by the Court of First Instance constitute points of law subject to review by the Court of Justice on appeal where the substantive inaccuracy of the findings of the Court of First Instance is apparent from the documents submitted to it or the clear sense of the evidence has been distorted.

(see para. 104)

2. The reference, in a statement of objections, to an objection such as a problem relating to the buttressing of market positions does not require a comprehensive demonstration of the merits of the objection following an exhaustive economic analysis. Such a demonstration, which in the sphere of concentrations may indeed entail significant difficulties, must be completed only at the next stage of the procedure, in light, in particular, of the observations of the undertakings concerned, which have been duly informed of the existence of a competition problem by the statement of objections in order to ensure an effective exercise of their rights of defence. At the stage of the statement of objections, the Commission need merely set out, with sufficient clarity and precision, the problem of buttressing of market positions which may be an obstacle to a declaration that the concentration is compatible with the common market.

(see paras 130-132)

3. The obligation to state reasons does not require the Court of First Instance to provide an account which follows exhaustively and one by one all the arguments put forward by the parties to the case. The reasoning may therefore be implicit on condition that it enables the persons concerned to know why the Court of First Instance has not upheld their arguments and provides the Court of Justice with sufficient material for it to exercise its power of review.

(see paras 135, 175)

4. For the non-contractual liability of the Community to arise, a number of conditions must be met, including, where the unlawfulness of a legal measure is at issue, the existence of a sufficiently serious breach of a rule of law intended to confer rights on individuals. As regards that condition, the decisive criterion for establishing that a breach of Community law is sufficiently serious is whether the Community institution concerned manifestly and gravely disregarded the limits on its discretion. Where that institution has only considerably reduced, or even no, discretion, the mere infringement of Community law may be sufficient to establish the existence of a sufficiently serious breach. The system of rules which the Court of Justice has worked out in relation to the non‑contractual liability of the Community takes into account, where appropriate, the complexity of the situations to be regulated.

(see paras 160-161)

5. The statement of objections is a document essential for the application of the principle of respect for the rights of the defence laid down by Article 18(3) of Regulation No 4064/89 on the control of concentrations between undertakings. In order to ensure that the rights of the defence may be exercised effectively, the statement of objections delimits the scope of the administrative procedure initiated by the Commission, thereby preventing the latter from relying on other objections in its decision terminating the procedure. For that purpose, Article 18(3) of Regulation No 4064/89 implies that, when the Commission finds during the in-depth investigation, following the statement of objections, that a competition problem which may give rise to a declaration of incompatibility has not been mentioned, or has been inadequately formulated, in the statement of objections, it must either abandon the objection concerned at the stage of its final decision or put the undertakings concerned in a position to submit, before the final decision, all observations on the substantive issues and proposals for relevant remedies.

(see paras 162-165)

6. When the Court of First Instance has found or assessed the facts, the Court of Justice has jurisdiction under Article 225 EC to review the legal characterisation of those facts by the Court of First Instance and the legal conclusions it has drawn from them. So far as the non-contractual liability of the Community is concerned, the question whether there is a causal link between the wrongful act and the damage, a condition for that liability to be incurred, is a question of law which, as a consequence, is subject to review by the Court of Justice. In those circumstances, a plea alleging that the Court of First Instance has incorrectly held there to be a direct causal link between the Commission’s wrongful act and the loss an appellant undertaking claims to have sustained is admissible inasmuch as it seeks specifically to review the Court of First Instance’s legal characterisation of the facts in holding there to be a direct causal link and inasmuch as that review can be carried out without calling in question the relevant findings and assessments of facts.

(see paras 191-193)

7. In a situation in which, following the acquisition of control of a company, an undertaking that had received notification from the Commission of a decision declaring the concentration incompatible with the common market and then of a decision requiring the two undertakings to be separated (i) concluded an agreement for the sale of the company concerned, in which the effective date of sale was deferred (with an option allowing the undertaking to cancel the agreement no later than a given date in consideration of payment of compensation for cancellation), and (ii) decided not to exercise the cancellation option even though both Commission decisions had been annulled following a wrongful act on the part of the Commission such as to cause the Community to incur non‑contractual liability, the Court of First Instance was incorrect – for the purposes of finding there to be a right to compensation for the loss sustained by the undertaking as a result of the reduction in the sale price which it had to concede to the transferee in exchange for the postponement of the effective date of the sale – in holding that there was a direct causal link between the Commission’s wrongful act and the loss sustained by the undertaking.

In such a situation, it must be found that there is no direct causal link between the price reduction at issue and the illegality vitiating the decision declaring the concentration incompatible with the common market, for the direct cause of the alleged damage was the undertaking’s decision, which it was not obliged to take, to allow the transfer of the company concerned to take effect, although the normal consequence of annulment of the decision declaring the concentration incompatible with the common market would have been that the undertaking participated in the resumed in-depth investigation until its conclusion, at which point, either (i) a decision finding the concentration to be compatible would have been adopted, in which case the undertaking would not have been required to transfer the company concerned and would thus not have been subject to the price reduction claimed or (ii) a further incompatibility decision and divestiture decision would have been adopted, in which case the transfer would have been the legal consequence of the incompatibility found and would thus not have been the cause of damage to be compensated.

(see paras 200-202, 204-205, 221)