Case T-48/04

Qualcomm Wireless Business Solutions Europe BV

v

Commission of the European Communities

‛Competition — Concentrations — Market for traffic telematics systems — Decision declaring a concentration compatible with the common market — Commitments — Manifest error of assessment — Misuse of powers — Obligation to state the reasons on which the decision is based’

Judgment of the Court of First Instance (Third Chamber), 19 June 2009 II ‐ 2033

Summary of the Judgment

Where, in accordance with Regulation No 4064/89 on the control of concentrations between undertakings, a decision of the Commission must be published in the Official Journal of the European Union, the Commission cannot, by communicating that decision directly to persons other than the addressees expressly identified therein, cause to run against those third parties the period for instituting proceedings laid down for the addressee of a measure who has received, in accordance with Article 254(3) EC, notification of the measure, instead of the period that runs in the case of measures which must be published. The Commission cannot, on the ground of ensuring legal certainty as swiftly as possible through limiting the possibility for bringing an action against a decision, confer on itself a discretion to identify, from among third parties who are not addressees of the decision, interested persons in whose case it might be expedient if the period for bringing an action were to expire quickly, thus breaching the principle of equal treatment. (see paras 46-50)

It is clear simply from the wording of the fifth paragraph of Article 230 EC that the criterion of the day on which the contested measure came to the knowledge of an applicant, as the starting point of the period for instituting proceedings, is subsidiary to the criteria of publication or notification. (see para. 55)

Under Regulation No 4064/89 on the control of concentrations between undertakings, the Commission has power to declare a concentration involving commitments compatible with the common market only if those commitments enable it to conclude that the concentration does not create or strengthen a dominant position as a result of which effective competition would be significantly impeded in the common market. It is not, therefore, the task of the Commission to determine whether the commitments limit the impact of a concentration on competition. It is for the Commission to show, with a sufficient degree of probability, in its decision declaring a concentration compatible with the common market that the concentration, as modified by the commitments proposed by the parties thereto, will not create or strengthen a dominant position as a result of which effective competition will be significantly impeded in the common market or in a substantial part of it. The burden of proof thus placed on the Commission is none the less without prejudice to its wide discretion with regard to complex economic assessments. It is therefore for interested third parties whose action seeks annulment of a decision declaring a concentration to which commitments are attached to be compatible with the common market to show that the Commission erred in its assessment of those commitments in such a way that the compatibility of the concentration with the common market is called in question. (see paras 89, 90, 112)

The substantive rules of Regulation No 4064/89 on the control of concentrations between undertakings, in particular Article 2, confer on the Commission a certain margin of discretion, especially with respect to assessments of an economic nature. Consequently, review by the Community judicature of the exercise of that discretion, which is essential for defining the rules on concentrations, must take account of the discretionary margin implicit in the provisions of an economic nature which form part of the rules on concentrations. Whilst the Community judicature recognises that the Commission has a margin of discretion with regard to economic matters, that does not mean that it must refrain from reviewing the Commission’s interpretation of information of an economic nature. Not only must the Community judicature, inter alia, establish whether the evidence relied on is factually accurate, reliable and consistent but also whether that evidence contains all the information which must be taken into account in order to assess a complex situation and whether it is capable of substantiating the conclusions drawn from it. (see paras 91, 92)

The concept of misuse of powers refers to cases where an administrative authority has used its powers for a purpose other than that for which they were conferred on it. A decision may amount to a misuse of powers only if it appears, on the basis of objective, relevant and consistent indicia, to have been taken with the exclusive purpose, or at any rate the main purpose, of achieving an end other than that stated. Where more than one aim is pursued, even if the grounds of a decision include, in addition to proper grounds, an improper one, that would not make the decision invalid for misuse of powers, provided that the decision does not cease to pursue the main aim. (see para. 161)