Judgment of the General Court (Eighth Chamber) of 7 June 2013 — Spar Österreichische Warenhandels v Commission

(Case T-405/08)

‛Competition — Concentrations — Markets for everyday consumer goods — Decision declaring the concentration compatible with the internal market — Commitments — Manifest error of assessment — Right to be heard — Duty to state reasons’

1. Concentrations between undertakings — Examination by the Commission — Adoption of a decision finding a concentration operation compatible with the common market without opening Phase II — Condition — No serious doubts — Commitments by the undertakings concerned to render the notified transaction compatible with the common market — Economic assessments — Margin of discretion — Judicial review — Subject-matter — No manifest error of assessment (Council Regulation No 139/2004, Art. 6(2); Commission Notice 2001/C 68/03) (see paras 46, 47, 179, 180, 186-188)

2. Concentrations between undertakings — Assessment of compatibility with the common market — Criteria — Creation or strengthening of a dominant position significantly impeding effective competition in the common market — Dominant position — Concept (Council Regulation No 139/2004, Arts 2(3), and 6(1) and (2)) (see paras 49, 50)

3. Concentrations between undertakings — Examination by the Commission — Economic assessments — Discretionary power of assessment — Judicial review — Scope — Limits (Council Regulation No 139/2004, Art. 2) (see paras 50-52, 143, 187)

4. Concentrations between undertakings — Examination by the Commission — Assessment of compatibility with the common market — Compliance with the Guidelines adopted by the Commission — Commission’s discretion as to the account to be taken of the factors referred to in the Guidelines — Examination of the degree of market concentration (Council Regulation No 139/2004, Art. 2; Commission Notice 2004/C 31/03, paras 14, 16 and 19 to 21) (see paras 58, 64-69, 274)

5. Concentrations between undertakings — Assessment of compatibility with the common market — Existence of a dominant position impeding effective competition — Burden of proof — High market share (Council Regulation No 139/2004, Art. 2; Commission Notice 2004/C 31/03, para. 17) (see paras 59, 100, 107)

6. Concentrations between undertakings — Assessment of compatibility with the common market — No creation or strengthening of a dominant position impeding competition — Criteria for assessment — Presence of competitors — Relevance depending on the weight of the competitors (Council Regulation No 139/2004, Art. 2) (see para. 74)

7. Concentrations between undertakings — Examination by the Commission — Examination by reference to the own impact on the market of the operation in question — Decision going significantly further than the previous decision-making practice — Express reasoning — No breach of principle of the protection of legitimate expectation (Council Regulation No 139/2004, Art. 2; Commission Notice 2004/C 31/03, Section 12) (see paras 99, 101, 133, 277)

8. Concentrations between undertakings — Assessment of compatibility with the common market — Relevant market — Geographical limits — Criteria — Judicial review — Limits (Council Regulation No 139/2004, Art. 9(7); Commission Notice 97/C 372/03, Section 8) (see paras 116-118)

9. Concentrations between undertakings — Examination by the Commission — Account taken of data provided by the parties to the concentration — Lawfulness (Council Regulation No 139/2004) (see paras 126, 127, 151, 160)

10. Acts of the institutions — Statement of reasons — Obligation — Scope — Decision to apply the rules on concentrations between undertakings — Decision authorising a concentration operation (Art. 296 TFEU; Council Regulation No 139/2004) (see paras 268, 269, 278)

Re:

APPLICATION for annulment of the Commission Decision of 23 June 2008 declaring the merger whereby Billa AG acquired sole control of Adeg österreich Handels AG compatible with the common market (Case COMP/M.5047 — REWE/ADEG), subject to the proposed commitments being met, pursuant to Article 6(1)(b) and (2) of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (OJ 2004 L 24, p. 1).

Operative part

The Court:

1. Dismisses the action;