12

The facts of this dispute, as set out in paragraphs 10 to 59 of the judgment under appeal, are as follows: ‘10 On 25 September 2002 [Vivendi Universal SA (‘Vivendi Universal’)] decided to dispose of the publishing assets held in Europe by its subsidiary VUP. 11 Lagardère declared its interest in purchasing those assets, consisting of the controlling interests and assets of VUP (“the target assets”). 12 It became apparent however that the timetable for the transfer drawn up by [Vivendi Universal], which wanted to complete the sale and receive the proceeds as quickly as possible, was not compatible with the time needed to complete the formalities required to obtain prior authorisation of this proposed purchase from the competition authorities. 13 Lagardère therefore asked [NBP] to take its place, through the intermediary of one of its subsidiaries created in order to purchase the target assets from VUP, hold them on a temporary basis, then, once clearance of the proposed purchase by Lagardère of the target assets was obtained, sell them back to Lagardère. 14 Further to a commitment given by Lagardère to NBP to bear all the risks associated with the transactions intended to allow completion of the envisaged concentration and to indemnify NBP for all losses, by letter of 8 October 2002 NBP accepted Lagardère’s request. 15 Lagardère and NBP submitted the main terms of NBP’s purchase of the target assets to the Commission …, which approved them. 16 On 14 October 2002 NBP and Lagardère signed an agreement entitled “NBP/Group Lagardère Agreements relating to VUP”, in which Title I, “Structures of purchase” (“HOLDCO”), contained the following clauses: Sole purpose Purchase from [Vivendi Universal], holding and sale of VUP businesses ... Financing of HOLDCO by NBP 100% of the purchase price of the [target] assets, including any possible adjustment to accord with the contract for the purchase of the [target] assets from [Vivendi Universal] Own funds amounting to EUR 38 500 NBP shareholders’ loan for the balance Legal framework of the transaction Article 3(5)(a) of Regulation ... No 4064/89 ...; objective to resell the entire share capital of HOLDCO to Lagardère 17 Lagardère then submitted to [Vivendi Universal] its offer to purchase the target assets, which provided for the replacement of Lagardère by NBP or any entity in that group. 18 [Vivendi Universal] decided to enter into negotiations with Lagardère in relation to the sale of the target assets. 19 In a joint communication of 23 October 2002 Lagardère and NBP declared: “The involvement of NBP at the request of [Lagardère] in the process of the VUP purchase is ... with the full agreement of [Vivendi Universal] ... The involvement of NBP is in accordance with Article 3(5)(a) of Regulation No 4064/89 ..., which enables a financial institution to acquire an undertaking with a view to reselling it without the need to obtain the authorisation of the Commission ... (since such a transaction is not deemed to be a concentration).” 20 On 29 October 2002 [Vivendi Universal] approved the sale to Lagardère of the target assets, consisting of the of book publishing business of VUP in Europe and Latin America, with the exception of Brazil. 21 On 3 December 2002 Investima 10 …, a wholly owned subsidiary of Ecrinvest 4 …, which was itself a wholly owned subsidiary of Segex …, which in turn was wholly controlled by NBP, gave to VUP a formal undertaking to purchase the target assets. In terms of that undertaking, Investima 10 bound itself to conclude with VUP the contract for the purchase of the target assets (“the purchase contract”), provided that VUP took up the abovementioned undertaking. 22 On the same date, Segex and Ecrinvest 4 concluded with Lagardère a sale contract (“the sale contract”) whereby Lagardère (through Ecrinvest 4), was entitled to purchase the entire share capital of Investima 10. 23 Under the sale contract, Segex was to sell to Lagardère, firstly, the entire share capital of Ecrinvest 4 owned by Segex and, secondly, two current-account claims due by Ecrinvest 4 to Segex, as they existed at the date of transfer of ownership from Segex to Lagardère. 24 Article 3(2)(i) of the sale contract stated that the date of transfer of ownership to Lagardère of the share capital of Ecrinvest 4 and the two claims due to Segex by Ecrinvest 4 was to be subsequent to the date of Lagardère’s obtaining, from the competent competition authorities, clearance to acquire Ecrinvest 4. 25 Under the first and second paragraphs of Article 3(3) of the sale contract, the transfer to Lagardère of ownership of the target assets, in the form of the share capital of Investima 10 as owner of those target assets, was to take place no later than the 30th day following the date of the decision authorising the envisaged concentration or the first working day following that 30th day, if the latter was not a working day. 26 The second paragraph of Article 1(1) of the sale contract specified that the transfer to Lagardère of ownership of the share capital of Ecrinvest 4 would take place on the date of the transfer, upon the completion by Segex of the formalities required for that transfer. 27 The sale contract stated, in the second and fourth paragraphs of Article 1(2) and (3), that the transfer of ownership of the two claims owed to Segex by Ecrinvest 4 would take place on the date of the transfer and that, as from that date, Lagardère would be the creditor of Ecrinvest 4 in place of Segex. 28 Under the second and third paragraphs of Article 3(1) of the sale contract: “... the sale of the shares [and claims] is definite, final and irrevocable, the decisions of the competent competition authorities determining the date of transfer of ownership in those shares and claims [to Lagardère]. The parties accept that no transfer of ownership of the shares [and claims] can occur before the date of transfer and that, consequently, [Segex] may not sell, either wholly or in part, the shares [and claims] or agree to the creation of securities over them or issue any transferable security giving or potentially giving access immediately or in the future to a portion of the capital or the voting rights of Ecrinvest 4 nor give undertakings in the future or subject to conditions to implement any of the aforesaid transactions.” 29 Annex 7 of the sale contract lists in the following terms the decisions of the Investima 10 management board which must be submitted to its supervisory board for the possible exercise of its right of veto: “1. Sale or transfer by any means or break-up of all or part of the assets to third parties not controlled by [Investima 10], or the grant of securities over all or part of the assets or admission of such third parties to the share capital of the assets or undertakings in the future or subject to conditions to implement any such transaction, other than for the purpose of implementing an agreement entered into by [Investima 10] at the date of signature of this contract; Designation of the corporate bodies of the assets; Implementation of price adjustment clauses and guarantees of rights and liabilities under [the purchase contract]. Implementation of any rights in respect of pre‑emption, undertakings to sell or purchase, joint issue and the like in relation to share holdings, stipulated in [the purchase contract]. Distribution of interim dividends.” 30 The parties agreed in Article 2(1) and (2) of the sale contract on an overall sale price for the shares and on a price for the sale of the two claims. In accordance with those provisions, on 3 December 2002 Lagardère paid to Segex the price of the shares and the two claims. 31 Segex approved overdraft facilities for Ecrinvest 4, in exchange for the latter approving equivalent overdraft facilities for Investima 10, in order to enable Investima 10 to purchase the target assets, provided that the undertaking to purchase the target assets was taken up by VUP. 32 Lagardère undertook to indemnify Segex, Ecrinvest 4 and Investima 10 for all losses which might arise as a consequence of implementation of the sale contract, except in a case of fraud or gross negligence. 33 Lagardère instructed Crédit agricole Indosuez SA to issue in favour of Segex an on-demand guarantee of its undertakings vis‑à‑vis Segex. To that end, Lagardère undertook to pay to Crédit agricole Indosuez the amount of any call on the guarantee which Crédit agricole Indosuez was required to meet. 34 Lastly, Lagardère undertook joint and several liability with Investima 10 for a guarantee to VUP’s landlord of payment by Investima 10 of the rent due for a building intended to bring together the greater part of the publishing businesses of the VUP group. 35 A draft notification of the envisaged purchase of the target assets was made by Lagardère to the Commission on 10 December 2002. 36 On 20 December 2002 VUP took up Investima 10’s undertaking to purchase and on the same day Investima 10 concluded with VUP the contract to purchase the target assets. 37 On 14 April 2003 Lagardère notified the Commission of its proposed purchase of the target assets, pursuant to Article 4(1) of Regulation No 4064/89. 38 In accordance with Article 4(3) of that regulation, that notification led to the publication of the following notice in the Official Journal of the European Union of 17 April 2003 (OJ 2003 C 92, p. 9): “1 On 14 April 2003 the Commission received notification of a proposed concentration pursuant to Article 4 of Regulation [No 4064/89], by which [Lagardère] acquires, within the meaning of Article 3(1)(b) of the Regulation, control of the undertaking [VUP France] controlled by Investima 10, ultimately controlled by [NBP], by way of purchase of shares. ...” 39 By decision of 5 June 2003, the subject of a notice published in the Official Journal on 12 June 2003 (OJ 2003 C 137, p. 14), the Commission, finding that the proposed concentration raised serious doubts as to its compatibility with the common market, initiated an in-depth investigation of that transaction, on the basis of Article 6(1)(c) of Regulation No 4064/89. 40 In recitals 6 to 8 of [that] decision ..., the Commission stated the following: “6. The structure chosen by Lagardère for acquiring [the target assets] had to meet one of the seller’s desiderata, which was that the concentration could be implemented and the price paid as quickly as possible. It was in order to meet that concern for speed that, at Lagardère’s request, [NBP] became involved in the process of acquiring the [target assets]. 7. On 3 December 2002, [NBP] concluded with Lagardère a binding sale contract, enabling Lagardère (via Ecrinvest 4), subject to authorisation of the operation by the Commission, to become the owner of the entire share capital of Investima 10, the company which owns the [target assets]. The purchase price of those shares was immediately paid by Lagardère to Segex, the company owning all the shares constituting the share capital of Ecrinvest 4, on the same date. 8. Consequently, the concentration is an acquisition of sole control, for the purposes of Article 3(1)(b) of Regulation No 4064/89 ...”. 41 Under Article 11(1) of Regulation No 4064/89, the Commission sent requests for information to Lagardère. Since all the information requested was not provided within the specified time, the Commission adopted, on 16 June and 8 August 2003, respectively, two decisions requesting information on the basis of Article 11(5) of Regulation No 4064/89. 42 Consequently, the time-limit of four months, following the date on which proceedings are initiated, within which the Commission is obliged, under Article 10(3) of Regulation No 4064/89 to issue a decision declaring that a concentration is incompatible with the common market, pursuant to Article 8(3) of that regulation, was suspended on two occasions, pursuant to Article 10(4) thereof. 43 The parties’ written pleadings indicate that Investima 10 became Éditis SA [‘Éditis’] on 14 October 2003. 44 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. 45 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. 46 On 22 December 2003 the Advisory Committee on concentrations of undertakings unanimously issued an opinion in favour of the preliminary draft of the decision conditionally authorising the notified concentration sent to it by the Commission pursuant to Article 19(3) of Regulation No 4064/89. 47 By the [contested decision], adopted pursuant to Article 8(2) of Regulation No 4064/89, the Commission authorised the notified concentration ..., on condition that Lagardère complied in full with its commitments as set out in Annex II to that decision. 48 In the [contested decision], the Commission stated that VUP and [Hachette Livre SA (“Hachette”), controlled by Lagardère,] were the only two large French-language publishing groups capable of ensuring fully independent development, since their business, includes, in addition to printing, a full marketing operation (publishing and distribution) and they have, in addition, popular pocket-format series. All the other groups are dependent more or less on VUP and/or Hachette in respect of certain businesses, and, in particular, in respect of marketing. By combining the operations of the two largest undertakings in the French-language publishing market, the resultant horizontal, vertical and conglomerate effects of the notified transaction would thus be anti‑competitive. 49 The Commission concluded that, in the absence of remedies, the concentration [at issue] would lead in a number of sectoral markets to the creation or strengthening of dominant positions as a result of which effective competition would be significantly impeded. 50 Under its commitments, Lagardère was to sell all the target assets (“the assets sold”), with the exception of the following target assets ... : ... 51 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 markets concerned by the concentration [at issue]. 52 In [the contested decision], the Commission considered that the effect of Lagardère’s commitments would be the elimination of almost all the horizontal overlaps between the businesses of the parties to the concentration [at issue] in all the French-language markets where that transaction created or strengthened a dominant position, with the exception of the market for works of reference where the assets which Lagardère had agreed to sell were however greater than Hachette’s initial market share .... 53 The Commission also considered that the result of Lagardère’s commitments would, if the sale was to a single buyer, be the elimination of the bulk of the vertical and conglomerate effects of the transaction analysed in [the contested decision], which were caused by, inter alia, the overall size of the merged entity in the French-language publishing sector, and in particular, in the publishing and distribution of books, which contributed to the creation or strengthening of dominant positions in the relevant markets. 54 The Commission concluded that, in the light of Lagardère’s commitments, the concentration [at issue] would not lead to the creation or strengthening of a dominant position held by the merged entity in the common market. 55 The Commission therefore decided that, provided that Lagardère fully complied with its commitments in accordance with Article 2(2) and Article 8(2) of Regulation No 4064/89, Lagardère’s acquisition of sole control, in terms of Article 3(1)(b) of that regulation, of the [target] assets, was compatible with the common market and the functioning of the EEA Agreement [of 2 May 1992 (OJ 1994 L 1, p. 3)]. 56 The [contested] decision was published in summary form in the Official Journal of 28 April 2004 ..., pursuant to Article 20(1) of Regulation No 4064/89. 57 Lagardère made overtures to a number of undertakings, including [the appellant], as possible purchasers of the assets sold. [The appellant] expressed its interest in that transaction. 58 On 28 May 2004 Lagardère and Wendel Investissement ... entered into a draft agreement for the purchase of the assets sold. 59 By letter of 4 June 2004, Lagardère asked the Commission to approve Wendel [Investissement] as the purchaser of the assets sold.’