Keywords

Summary



Keywords

1. Competition – Concentrations – Regulation No 139/2004 – Control proceedings – Public interests mentioned in Article 21(4), third subparagraph, of the regulation – Commission’s competence to adopt a decision relating to the recognition of a public interest protected by national measures – Limits

(Council Regulation No 139/2004, Arts 8 and 21(4))

2. Actions for annulment – Actionable measures – Meaning – Measures producing binding legal effects – Commission decision to discontinue, after abandonment of a proposed merger, a procedure initiated pursuant to Article 21(4) of Regulation No 139/2004 on the control of concentrations between undertakings – Proceedings in the nature of infringement proceedings – Exclusion

(Arts 86(3) EC, 226 EC and 230 EC; Council Regulation No 139/2004, Art. 21(4))

Summary

1. Where a Member State gives notice of a public interest, other than those taken into consideration in Regulation No 139/2004 on the control of concentrations between undertakings, which it wishes to protect, the Commission initiates the procedure provided for in the third subparagraph of Article 21(4). The Commission must examine the compatibility of that interest with the general principles and other provisions of Community law before notifying the Member State concerned of its decision within 25 working days of such notification, avoiding so far as possible the risk that its decision is taken only after national measures have already irretrievably prejudiced the proposed concentration. In such a case the Commission must, in order to ensure that its decision under Article 8 of Regulation No 139/2004 is effective, adopt a decision addressed to the Member State concerned, consisting either in the recognition of the interest at issue in view of its compatibility with the general principles and other provisions of Community law or in the non-recognition of the interest by reason of its incompatibility with those principles and provisions.

Since the procedure under Article 21(4) of Regulation No 139/2004 refers to the monitoring of specific concentration transactions, the Commission’s competence to adopt a decision depends, however, on the conclusion of the merger agreement. In that regard, in the same way as the Commission does not have the power to adopt a decision pursuant to Regulation No 139/2004 before a merger agreement has been concluded, it ceases to have that power as soon as the agreement comes to be terminated, even if the undertakings concerned continue negotiations with a view to concluding an agreement ‘in a modified form’.

Consequently, if the proposed merger is abandoned, the Commission is no longer competent to terminate the procedure pursuant to Article 21(4) by a decision relating to the recognition of a public interest protected by national measures.

(see paras 112, 115-117)

2. A letter by which the Commission informs a Member State of its decision to discontinue the procedure initiated pursuant to Article 21(4) of Regulation No 139/2004 on the control of concentrations between undertakings produces no binding legal effects capable of affecting the interests of an applicant undertaking which was party to a proposed merger which was subsequently abandoned, by bringing about a distinct change in its legal position. Such a decision cannot therefore constitute a challengeable act.

By continuing the Article 21(4) procedure after the abandonment of the proposed merger by the undertakings concerned, the Commission no longer envisages taking a decision on the recognition of a public interest protected by national measures, but rather a decision declaring that the Member State in question has infringed Article 21 of Regulation No 139/2004.

In doing so, the Commission leaves the framework of the Article 21(4) procedure by continuing it as an infringement action such as that provided for by Article 226 EC or Article 86(3) EC. The Commission has, in that regard, a discretion to bring an action for failure to fulfil Treaty obligations under Article 226 EC and Article 86(3) EC.

(see paras 120, 124-125)