Keywords

Summary



Keywords

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1. Actions for annulment ° Natural or legal persons ° Measures of direct and individual concern to them ° Decision on the compatibility of a concentration with the common market ° Recognized representatives of the workers of the undertakings concerned ° Remedy restricted, in principle and in the absence of exceptional circumstances, to review by the Community judicature of whether the Commission has respected their procedural rights

(EC Treaty, Art. 173, fourth para.; Council Regulation No 4064/89, Art. 18(4); Council Directive 77/187)

2. Competition ° Concentrations ° Examination by the Commission ° Obligations of the Commission to specified third parties ° Recognized representatives of the workers of the undertakings concerned ° Written information on the nature and subject-matter of the procedure ° Not required in the absence of an application to be heard ° Invitation to submit written observations before an information meeting ° Not required ° Information about the possibility of being assisted by a lawyer ° Not required ° Offer of access to the file ° Not required

(Council Regulation No 4064/89, Art. 18(3) and (4); Commission Regulation No 2367/90, Arts 14 and 15)

Summary

1. A Commission decision on the compatibility with the common market of a concentration, taken pursuant to Regulation No 4064/89, is of individual concern, within the meaning of the fourth paragraph of Article 173 of the Treaty, to the representatives, recognized in national law, of the employees of the undertakings in question, simply because that regulation ° which allows the Commission to take into consideration the social effects of the concentration if they are liable to affect adversely the social objectives referred to in Article 2 of the Treaty ° expressly mentions them among the third parties showing a sufficient interest to be heard by the Commission during the procedure for examination of the planned concentration, regardless of whether they have actually taken part in that procedure.

On the other hand, in principle and in the absence of exceptional circumstances, it is not of direct concern to them. Firstly, a decision authorizing a concentration, after an examination from the point of view of Community competition law, does not in itself have any effect on the own rights of the representatives of the employees of the undertakings concerned, which, as provided for by the relevant provisions of Community law, will be applicable in accordance with the provisions of national law on the occasion of the transfer of the undertaking as a result of the concentration. Secondly, it does not directly affect the interests of the workers concerned, since, as follows from Directive 77/187 on the safeguarding of employees' rights in the event of transfers of undertakings, the concentration cannot itself bring about a change in the employment relationship as regulated by the contract of employment and collective agreements. If measures which affect the interests of the workers are taken following the concentration, they will be taken by the undertakings concerned and their compatibility with social legislation, both Community and national, will be subject to review by the national courts.

However, since the representatives of the employees have been given procedural rights by Regulation No 4064/89 and those rights can in principle be given effect to by the Community judicature only at the stage of review of the lawfulness of the Commission' s final decision, those representatives must be afforded a remedy limited to the defence of their procedural rights, and must therefore be recognized as entitled to bring proceedings against that decision for the specific purpose of having the Community judicature examine whether or not the procedural guarantees which they were entitled to assert during the administrative procedure under Article 18 of that regulation have been infringed. When that remedy is exercised, only a substantial breach of the procedural rights of the employees' representatives, as opposed to a plea based on substantive breach of the rules laid down in Regulation No 4064/89, may lead to annulment of the Commission' s decision.

2. Protection, during the examination by the Commission of a proposed concentration, of the legitimate interests of specified third parties, that is to say those who may only possibly suffer the indirect effects of the Commission' s decision on their legal sphere, does not require that they should enjoy identical guarantees to those given to the persons interested by the concentration in question in order to ensure that their rights of defence are respected during that procedure. Thus the Commission is not obliged under Article 15 of Regulation No 2367/90 on the notifications, time-limits and hearings provided for in Regulation No 4064/89 to inform in writing an organization representing the workers of one of the undertakings concerned, which has made a mere request for information rather than an application to be heard, of the nature and subject-matter of the procedure, before giving it an opportunity to make known its views. Nor is the Commission obliged under that provision to invite it to submit written observations before a meeting to which it has been invited, nor to inform it of the possibility under Article 14 of Regulation No 2367/90 of being assisted by a lawyer. Moreover, Article 18 of Regulation No 4064/89 cannot be interpreted as meaning that the Commission is required to give a specified third party access to the file.