4

The facts of the dispute, as set out in paragraphs 1 to 47 of the judgment under appeal, are as follows: ‘1 On 25 September 2002 Vivendi Universal SA … decided to dispose of the publishing assets held in Europe by its subsidiary [VUP]. 2 [Lagardère] declared its interest in purchasing those assets, consisting of the controlling interests and assets of [VUP] (“the target assets”). … 8 On 29 October 2002 [Vivendi Universal SA] approved the disposal of the target assets to Lagardère. 9 On 3 December 2002 Investima 10 SAS [‘Investima 10’] a wholly owned subsidiary of Ecrinvest 4 SA [‘Ecrinvest 4’], which was itself a wholly owned subsidiary of Segex Sarl [‘Segex’], which in turn was wholly controlled by [Natexis Banques Populaire SA, ‘NBP’], gave to VUP a formal undertaking to purchase the target assets. 10 On the same date, Segex and Ecrinvest 4 concluded with Lagardère a sale contract … whereby Lagardère (through Ecrinvest 4), once the anticipated authorisation for the concentration was obtained from the Commission, was entitled to purchase the entire capital of Investima 10, the proprietor of the target assets, provided that VUP took up the abovementioned undertaking to purchase. The purchase price for those shares was paid in advance by Lagardère to Segex, the proprietor of the entire share capital of Ecrinvest 4. 11 On 20 December 2002 VUP took up Investima 10’s undertaking to purchase and on the same date Investima 10 concluded with VUP the contract to purchase the target assets. 12 On the same date NBP issued the following press release: “NBP is acquiring the entire package of assets sold with a view to reselling them [to Lagardère] as soon as authorisation from the competition authorities is obtained. From today the assets of VUP will be held by Investima 10, which is a company indirectly wholly owned by NBP. That limited liability company with an executive board and a supervisory board becomes the parent company of the companies encompassing the assets sold. …” … 14 On 20 December 2002 Investima 10’s executive board was formed and B., president of the firm S., was appointed as a member of the board as the “independent third party”, in terms of Article 4(1)(ii)(e) of the sale contract [entered into by Segex and Ecrinvest 4 with Lagardère]. 15 Article 2(2) of the contract signed on 19 December 2002 by Ecrinvest 4 and the firm S. specifies, in the first subparagraph, that, in his capacity as trustee of the company, B. is to act in the interests of Investima 10 and of the target assets and, more specifically, in the interests of preserving their viability, their economic value and their competitiveness. … 17 On 14 April 2003, in accordance with Article 4(1) of [Regulation No 4064/89], Lagardère notified the Commission of its proposed purchase of the target assets of VUP. 18 By decision of 5 June 2003 the Commission, finding that the proposed concentration raised serious doubts as to its compatibility with the common market, commenced an in-depth investigation of this transaction, on the basis of Article 6(1)(c) of Regulation No 4064/89. 19 The parties’ written pleadings indicate that Investima 10 became Éditis SA [‘Éditis’] on 14 October 2003. 20 On 27 October 2003 the Commission sent to Lagardère a statement of objections setting out competition issues raised by the notified concentration, and Lagardère replied on 17 November 2003. 21 Consequently, on 2 December 2003 Lagardère submitted to the Commission a number of remedial measures in the form of commitments to sell the target assets. 22 Decision [2004/422], adopted pursuant to Article 8(2) of Regulation No 4064/89, provides: “Article 1 The notified transaction, as amended by the package of commitments of 23 December 2003, by which Lagardère acquires sole control of the [target assets] of VUP, now called Éditis, is declared compatible with the common market and with the functioning of the European Economic Area [Agreement] [of 2 May 1992 (OJ 1994 L 1, p. 3)]. Article 2 Article 1 shall apply on condition that Lagardère complies in full with the commitments referred to [in] Annex II. Article 3 This Decision is subject to an obligation on Lagardère to comply in full with the other commitments set out in Annex II.” 23 Under paragraph 1 of the commitments in Annex II, Lagardère undertook to sell all of the assets of Éditis (the “assets sold”) with the exception of the assets specifically listed in that paragraph (the “assets retained”). 24 The assets sold represented approximately 60 to 70% of the worldwide turnover of VUP and 70 to 80% of the turnover achieved by VUP in the French-language publishing markets concerned by the authorised concentration … 25 Paragraph 2 of Lagardère’s commitments states that the assets retained are defined in detail in Annex 1 to those commitments. 26 In Paragraph 3 of those commitments, Lagardère undertakes to conclude irrevocable contracts of sale within a period (confidential) from the date of receipt of the conditional authorisation decision and to ensure that the sale actually takes place within a period (confidential) from the conclusion of the contract. 27 Lagardère had the right to choose the purchaser of the assets sold, according to selection criteria defined as follows in paragraph 10 of its commitments: “In order to preserve effective competition on the relevant markets the notifying party undertakes to sell the Assets Sold to one or more buyers independent of the notifying party and satisfying the following tests: …” 28 Paragraph 14 of Lagardère’s commitments states that the choice of the buyer or buyers is to be subject to the Commission’s approval and that the application for the approval of the parties concerned is to include the information necessary to enable the Commission to establish that the proposed buyer or buyers satisfy the tests set out in paragraph 10 as quoted in paragraph 27 above. 29 Lagardère was to appoint a trustee satisfying the conditions set in the following terms in paragraph 15 of its commitments: “The notifying party will appoint a trustee to perform the duties set out below. The trustee will be independent of Lagardère and of Éditis, will possess the qualifications needed to perform its mandate, being for example a consultant bank, consultant or auditor, and will not be exposed to any conflict of interests. The trustee will be remunerated by Lagardère in a manner that does not compromise the proper performance of the trustee’s duties or the trustee’s independence.” 30 Paragraph 9 of Lagardère’s commitments provides as follows for the appointment of a manager of the assets held separately (the hold-separate manager): “The notifying party will appoint a hold-separate manager … responsible for the management of the Assets Sold, under the supervision of the trustee. The hold-separate manager must manage the Assets Sold independently and in the ordinary course of business with a view to ensuring the preservation of their economic viability, their saleability, their competitiveness and their independence of the Assets Retained and Lagardère’s other businesses. If an officer of a subsidiary of Éditis within the scope of the commitment to sell terminates his or her duties, the hold-separate manager will have authority to appoint a successor, under the supervision of the trustee.” 31 The task of the trustee is defined as follows in Lagardère’s commitments: “20. The object of the trustee’s actions is to ensure that these commitments are met. On its own initiative or upon application by the trustee or the notifying party, the Commission may address any instruction to the trustee which is designed to ensure that these commitments are met. …” 32 Further, paragraph 24 of the commitments states the following: “In the event of disagreement between Lagardère and Éditis on the restructuring measures necessary for the fulfilment of these commitments, either party may inform the trustee accordingly by registered letter, sending a copy to the other party. The trustee, having heard both sides, will then make a recommendation, as quickly as possible, regarding the scope of the restructuring measures needed. The trustee will report to the Commission informing it of the recommendation. If the disagreement between Lagardère and Éditis persists, either party may request the Commission, after hearing both sides, to determine the scope of the restructuring measures needed.” 33 Lastly, Lagardère’s commitments in the section “Alteration of the legal form of Éditis” provide: “30. After Éditis’s new constitution has been approved by the Commission, the notifying party will convert Éditis into the form of a simplified limited company (société par actions simplifiée, SAS). Thereafter the governing bodies of the company will be … a chief executive officer, who will perform the duties of the hold-separate manager, and … a shareholders’ committee, made up of three representatives of the trustee referred to in paragraph 15 and two representatives of Lagardère. 31. The simplified limited company will be organised as follows: … 32. During the period between the adoption by the Commission of a decision authorising the notified transaction and the conversion of Éditis to a simplified limited company Éditis shall continue to be managed by the company governing bodies currently in place, in coordination with the trustee. During that time, Lagardère, in its capacity as shareholder in Éditis, will be entitled to access to all information concerning the Assets Retained. In the case of the Assets Sold the trustee will ensure that the information referred to in paragraph 31(c) is transmitted to Lagardère.” 34 On 5 February 2004 the Commission: — approved A. K. as the hold-separate manager and approved the draft definition of his mission statement, submitted on 30 January 2004; — approved as trustee the firm S., represented by its president, B., and approved the draft definition of its mandate submitted on 30 January 2004. 35 On 9 February 2004 Lagardère appointed the firm S. as trustee. 36 On 25 March 2004 Éditis was converted, pursuant to paragraph 30 of Lagardère’s commitments, to a simplified limited company, the governing bodies of which thereafter comprised the Chief Executive Officer with the duty of managing the separated assets and the shareholders’ committee consisting of three representatives of the trustee and two representatives of Lagardère. 37 Lagardère made overtures to a number of undertakings, including [Éditions Odile Jacob SAS (‘Odile Jacob’)], who might purchase the assets sold. 38 [Odile Jacob] declared its interest in this transaction. By fax of 28 April 2004, it sent its purchase offer to Lagardère. 39 In a notice dated 19 May 2004, Lagardère declared that it held offers to purchase from five potential buyers, including [Odile Jacob], and that until midnight on 25 May 2004 it would deal exclusively with one of them, [Wendel Investissement]. 40 On 28 May 2004 Lagardère and [Wendel Investissement] reached a draft agreement to purchase the assets sold. 41 By letter of 4 June 2004 Lagardère asked the Commission to approve [Wendel Investissement] as purchaser of those assets. 42 On 5 July 2004 the firm S. submitted to the Commission its summary report with the conclusion that [Wendel Investissement]’s prospective purchase was compatible with the approval criteria defined in paragraph 10 of Lagardère’s commitments. 43 By [the contested decision] the Commission approved [Wendel Investissement] as purchaser of the assets sold, after making the finding that [Wendel Investissement] satisfied the approval criteria defined in paragraph 10 of Lagardère’s commitments. 44 That decision was adopted in accordance with paragraph 14 of Lagardère’s commitments and on the basis of the abovementioned application for approval, the draft sale contract annexed to it, the report from the firm S., written replies from Lagardère and [Wendel Investissement] to a Commission request for information, information provided by [Wendel Investissement] at a meeting with Commission staff, and an exchange of views on [Wendel Investissement]’s prospective purchase with organisations representing the staff of Éditis and interested third parties. 45 By application lodged at the Registry of the General Court on 8 July 2004, [Odile Jacob] brought an action for the annulment of the decision [2004/422] (Case T‑279/04). 46 By fax of 27 August 2004 the Commission notified [Odile Jacob], at its request, of the [contested] decision. 47 The transfer to [Wendel Investissement] of ownership of those assets, called “Nouvel Éditis”, took place on 30 September 2004.’