Any measure which produces binding legal effects such as to affect the interests of an applicant by bringing about a distinct change in his legal position is an act or decision which may be the subject of an action for annulment under Article 230 EC. To determine whether an act or decision produces such effects, it is necessary to look to its substance. Thus, a decision whereby the Commission alters only the reasoning of a previous decision may be the subject-matter of an action if that alteration changes the substance of what was decided in the operative part of the decision in question and, by so doing, brings about a distinct change in the legal position of the person to whom it is addressed. Although the courts have consistently held that only the operative part of an act is capable of producing binding legal effects and, thereby, of having adverse effects, nevertheless the statement of the reasons for a measure must be taken into account in determining the exact meaning of what is stated in the operative part.

Under Article 6(1)(b) of Regulation No 4064/89 on the control of concentrations between undertakings, the decision whereby a concentration is declared compatible with the common market also covers restrictions on competition directly related to the concentration and necessary for its implementation.

Taking into account the terms and the legislative context, as well as the origin and aims of that provision, it must be interpreted as meaning that where, in the grounds of a decision approving a concentration, the Commission categorises the restrictions notified by the parties to the concentration as ancillary restrictions, non-ancillary restrictions or ancillary restrictions for a limited period, the Commission is not delivering a mere opinion without binding legal force but, on the contrary, is making legal assessments which determine the substance of what it decided in the operative part of the decision.

(see paras 63-68)

If that were not so, the parties to a concentration would not obtain the benefit of legal certainty as to the whole of the operation even though, where the conditions laid down by that provision are actually fulfilled, the whole operation is recognised as being economically inseparable. By incorporating Article 6(1) into Regulation No 4064/89, the Community legislature intended to establish a decisionmaking procedure which enables the parties to a concentration within the meaning of Article 3 of that regulation to obtain, in consideration of the binding system laid down by Articles 4 and 7 of the regulation, of an obligation of notification and of the suspensory effect of that obligation, legal certainty not only in relation to the concentration but also as regards the restrictions notified by the parties to the concentration as being directly related and necessary to its implementation.

To compel the parties to a concentration, in return for legal certainty as to the restrictions which they consider economically inseparable from the concentration, to give notice of such restrictions pursuant to other provisions, in particular Regulation No 17, simultaneously with notification under Regulation No 4064/89, would be contrary to the principle of effective control of concentrations with a Community dimension. In addition, in the introduction to its notice on ancillary restrictions, the Commission itself observed that ‘this avoids parallel Commission proceedings, one concerned with the assessment of the concentration under [Regulation No 4064/89], and the other aimed at applying Articles [81 EC and 82 EC] to the restrictions which are ancillary to the concentration’.

(see paras 101, 103-104, 109)