EN Official Journal of the European Union C 46/4

Appeal brought on 25 November 2010 by Éditions Odile Jacob SAS against the judgment delivered by the General Court (Sixth Chamber) on 13 September 2010 in Case T-279/04 Éditions Jacob v Commission

(Case C-551/10 P)

2011/C 46/06

Language of the case: French

Parties

Appellant: Éditions Odile Jacob SAS (represented by: O. Fréget, M. Struys, M. Potel-Saville and L. Eskenazi, avocats)

Other parties to the proceedings: European Commission, Lagardère SCA

Form of order sought

— set aside the judgment of 13 September 2010 in Case T-279/04 Éditions Odile Jacob SAS v Commission dismissing Odile Jacob's action, and

— order the Commission to pay the costs, including those borne by Odile Jacob at first instance, and those incurred by that party in respect of this appeal;

Pleas in law and main arguments

The appellant puts forward four grounds in support of its appeal.

By its first ground of appeal, Éditions Odile Jacob alleges an error in the application of the concept of a concentration within the meaning of Regulation 4064/89 (1) and an error in the legal classification of the holding; the relevant criteria for assessing control under Article 3(3) of Regulation 4064/89 were thereby disregarded. In the first place, by isolating the holding, by which Natexis Banques Populaires (NBP) temporarily acquired Vivendi Universal Publishing, from the legal arrangement which led to Lagardère's acquiring control of VUP, the General Court failed to have regard to the general objective of control of concentrations which is to deal with the economic reality underlying a group of legal transactions. In so doing, the General Court not only created a new exception to Regulation 4064/89, enabling holdings, whatever the undertaking being used as a vehicle charged with holding the assets to be divested, to escape control of concentrations, but also negates the effectiveness of Article 3(5)(a) of that regulation.

In the second place, by excluding the classification of the holding under Article 3(5)(a) of Regulation 4064/89, the General Court in any event applied Article 3(3) of that regulation in an incorrect and truncated manner, that application being limited to a reading only of the contractual elements which structured the holding at issue.

By its second ground of appeal, the appellant alleges an error of law in so far as the General Court failed to draw the legal consequences of the procedural infringements committed by the Commission. By shielding from any review those infringements of Regulation 4064/89, relating inter alia to the infringement of the obligation to suspend the concentration, to the absence of notification of such a kind as to form the basis of the Commission's competence and to fraud by apparent substitution of the purchaser, the General Court validated a contravention of the law equivalent to a misuse of powers by the Commission.

By its third ground of appeal, Éditions Odile Jacob alleges that the General Court erred in law by failing to sanction by annulment essential procedural requirements vitiating the Commission's decision. That ground of appeal relates in particular to the failure to provide a statement of reasons in relation to the classification of the holding at issue and to the applicability of Article 3(5)(a) of Regulation 4064/89 to a part of that holding and alleges infringement of the principles of equality, legal certainty and the protection of legitimate expectations.

By its fourth and final ground of appeal, the appellant complains that the General Court committed errors of law and manifest errors of assessment in that it disregarded the relevant legal criteria for assessing the creation or strengthening of a dominant position and whether the commitments were appropriate in relation to the Commission's findings.

(1) Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings (OJ 1989 L 395, p. 1).