Keywords

Summary



Keywords

1 Actions for annulment - Actionable measures - Measures producing legal effects - Commission decision finding that the setting up of a joint venture falls outside the scope of Regulation No 4064/89

(EC Treaty, Art. 173; Council Regulation No 4064/89)

2 Competition - Concentrations between undertakings - Scope of Regulation No 4064/89 - Setting up of a joint venture - Conditions - Operational autonomy - Criteria of assessment - Support from parent companies - Limits

(Council Regulation No 4064/89, Art. 3(2))

3 Competition - Administrative proceedings - Observance of the rights of the defence - Decision finding that a notified operation falls outside the scope of Regulation No 4064/89 - Obligations of the Commission

(Council Regulation No 4064/89, Arts 6(1)(a) and 18)

4 Acts of the institutions - Statement of reasons - Obligation - Scope - Decision concerning concentrations between undertakings

(EC Treaty, Art. 190)

Summary

1 Any decision which brings about a distinct change in the legal position of the undertakings concerned by producing definitive legal effects is an actionable measure.

That is the position in the case of a Commission decision finding that the setting up of a joint venture does not constitute a concentration for the purposes of Regulation No 4064/89 and accordingly does not fall within the scope thereof. Such a decision has the effect, in particular, of bringing that operation under the prohibition on agreements, decisions and concerted practices under Article 85 of the Treaty and the separate and distinct procedure provided for in Regulation No 17. It thus affects the legal position of the undertakings concerned by depriving them of the opportunity of having the lawfulness of the operation in question reviewed purely from a structural point of view under the accelerated procedure introduced by Regulation No 4064/89, with a view to securing a definitive decision on compatibility with Community law.

In those circumstances, the contested decision is not merely a preparatory measure against whose unlawfulness adequate judicial protection may be afforded to the persons concerned by means of an action against the decision on the application of Article 85 of the Treaty. It constitutes a definitive decision which may form the subject-matter of an action for annulment under Article 173 of the Treaty in order to secure judicial protection of undertakings' rights under Regulation No 4064/89.

2 It follows from the wording of Article 3 of Regulation No 4064/89 that the creation of a joint venture is covered by that Regulation only if it enjoys operational autonomy and its creation does not have as its object or effect the coordination of the competitive behaviour of the undertakings concerned.

Since Regulation No 4064/89 does not clarify the criteria making it possible to determine to what extent those two conditions may be regarded as satisfied, regard must be had, above all, when interpreting those conditions, to their purpose which is to demarcate the scope of Regulation No 4064/89 as opposed to that of Regulation No 17, the two regulations being mutually exclusive. Under the former version of Regulation No 4064/89, that entails an assessment of the commercial significance of the matters on which there is to be cooperation in relation to structural aspects.

In order to assess the effect of the parent companies' support on the operational autonomy of the joint venture, regard must be had to the characteristics of the market in question and a determination must be made of the extent to which that undertaking carries out the functions normally performed by other undertakings operating on that market.

Although, admittedly, an existing but not yet operational undertaking which has recourse to outside companies for certain specific services cannot be regarded as bereft of functional autonomy, that is not the case where the joint venture is dependent on its parent companies for the provision of all of those services beyond an initial running-in period during which such assistance may be deemed to be justified in order to enable the joint venture to gain access to the market.

3 Article 18 of Regulation No 4064/89 expressly confers on undertakings which are concerned, including the notifying undertakings, the right to be heard before the adoption of certain types of decisions specified therein. It does not mention decisions finding, pursuant to Article 6(1)(a), that the operation notified is not covered by Regulation No 4064/89.

None the less, observance of the rights of the defence constitutes a fundamental principle of Community law and must therefore be observed prior to the adoption of any decision likely to have an adverse effect on the undertakings concerned.

When, following notification of a concentration, the Commission has clearly stated in its initial request for information the need to have further details on a particular point, it cannot be bound by the requirements inherent in observance of the rights of the defence to repeat its request where the reply to a request for information has been inadequate.

4 In cases concerning the prior examination of concentration operations, the question whether a contested decision is adequately reasoned in law must be ascertained in the light of the information and documents available to the Commission at the time of its adoption.