OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 20 October 2022 ( )

Case C‑376/20 P

European Commission

v

CK Telecoms UK Investments Ltd

(Appeal – Competition – Concentrations – Wireless telecommunications – Retail market for mobile telecommunication services – Market for wholesale access and call origination on public mobile networks – Acquisition of Telefónica Europe by Hutchison – Decision declaring the concentration incompatible with the internal market and the functioning of the Agreement on the European Economic Area (EEA) – Oligopolistic market – Significant impediment to effective competition – Non-coordinated effects – Burden of proof – Standard of proof – Commission’s margin of discretion with regard to economic matters – Scope of judicial review – Guidelines on the assessment of horizontal mergers – Concept of ‘important competitive force’ – Concept of ‘close competitors’ – Quantitative analysis of upward pricing pressure – Efficiencies – Network-sharing agreements – Distortion – Obligation to state reasons)





Table of contents





I. Introduction

II. The background to the dispute

A. The facts

B. The decision at issue

C. The judgment under appeal

III. The procedure before the Court of Justice and the forms of order sought

IV. Assessment

A. Preliminary observations

B. The first ground of appeal, alleging an error of law in that the General Court applied a stricter standard of proof than that recognised in the case-law

C. The second ground of appeal, alleging misinterpretation of Article 2(3) of Regulation No 139/2004

1. The first part of the second ground of appeal, alleging an error of law in that the General Court equated the conditions for establishing that the concentration at issue could give rise to non-coordinated effects with the conditions for establishing the existence of a dominant position

2. The second part of the second ground of appeal, alleging a restrictive interpretation of Article 2(3) of Regulation No 139/2004

D. The third ground of appeal, alleging, first, an error of law in that the General Court, in particular, exceeded the limits of judicial review in interpreting the concepts of ‘important competitive force’ and ‘close competitors’ and, second, a distortion of both the decision at issue and the defence at first instance

1. The first part of the third ground of appeal, alleging an error of law in that the General Court exceeded the limits of judicial review in interpreting the concepts of ‘important competitive force’ and ‘close competitors’

2. The second part of the third ground of appeal, alleging misinterpretation of the concept of ‘important competitive force’ and distortion of both the decision at issue and the defence at first instance

(a) The first complaint

(b) The second complaint

3. The third part of the third ground of appeal, alleging misinterpretation of the concept of ‘close competitors’ and a distortion of the decision at issue

(a) The first complaint

(b) The second complaint

4. The fourth part of the third ground of appeal, alleging infringement of the obligation to state reasons concerning any incompatibility of the Guidelines with Regulation No 139/2004

E. The fourth ground of appeal, alleging a distortion of the Commission’s arguments relating to its quantitative analysis and errors of law

1. The effectiveness of the fourth ground of appeal

2. The first part of the fourth ground of appeal, alleging a distortion of the Commission’s arguments concerning the possible price increase resulting from the concentration at issue and an error of law on the part of the General Court in its assessment of the quantitative analysis

3. The second part of the fourth ground of appeal, alleging an error of law in that the General Court required the Commission to include ‘standard’ efficiencies in its UPP analysis

F. The fifth ground of appeal, alleging an error of law in that the General Court failed to assess all the relevant factors and evidence

G. The sixth ground of appeal, alleging distortion of the decision at issue and breach of the obligation to state reasons

1. The effectiveness of the sixth ground of appeal

2. The first part of the sixth ground of appeal, alleging distortion of the decision at issue

3. The second part of the sixth ground of appeal, alleging breach of the obligation to state reasons

V. Referral of the case back to the General Court

VI. Conclusion





I. Introduction

1. The present case provides the Court, following the judgments in Commission v Tetra Laval ( ) and Bertelsmann and Sony Corporation of America v Impala, ( ) with a further opportunity to clarify questions of principle concerning the requirements governing the taking of evidence and the burden and standard of proof to which the European Commission is subject in the area of merger control, and concerning the scope of the review which the EU Courts are called upon to carry out in that regard.

2. More specifically, in those judgments, the Court had occasion to rule on those requirements in the context of concentrations giving rise to the creation or strengthening of the merged entity’s dominant position being of a ‘conglomerate’ type or a ‘collective’ type. By contrast, the present case is the first concerning a concentration in an oligopolistic market which, according to the Commission, results in a significant impediment to effective competition, for the purposes of Article 2(3) of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation), ( ) on account of ‘non-coordinated’ or ‘unilateral’ horizontal effects, that is to say where the merged entity does not have a dominant position. It follows that this case is also the first in which the Court has had the opportunity to clarify the scope of the concept of ‘significant impediment to effective competition’ in so far as that concept is founded on such non-coordinated or unilateral effects. That concept was at the heart of the reform initiated by the adoption of Regulation No 139/2004, as evidenced, in particular, by recitals 25 and 26 thereof, and by paragraph 24 et seq. of the Commission Guidelines on the assessment of horizontal mergers under the Council Regulation on the control of concentrations between undertakings (‘the Guidelines’). ( )

3. In the present case, by its appeal, the Commission asks the Court of Justice to set aside the judgment of the General Court of the European Union of 28 May 2020, CK Telecoms UK Investments v Commission (‘the judgment under appeal’), ( ) by which the General Court annulled Commission Decision C(2016) 2796 final of 11 May 2016 declaring incompatible with the internal market the concentration resulting from the acquisition of Telefónica Europe plc by Hutchison 3G UK Investments Ltd (‘the decision at issue’). ( ) According to the General Court, the Commission, in essence, disregarded the standard of proof applicable to the control of concentrations giving rise to non-coordinated effects on an oligopolistic market. In its appeal, the Commission is arguing, in essence, that both that standard of proof applied by the General Court and the scope of the review which it carried out in that regard are incompatible with the relevant criteria set out in the case-law of the Court of Justice, in particular in the judgment of 10 July 2008, Bertelsmann and Sony Corporation of America v Impala. ( )

II. The background to the dispute

A. The facts

4. The General Court set out the background to the dispute in paragraphs 1 to 25 of the judgment under appeal, which, for the purposes of the present appeal proceedings, may be summarised as set out below.

5. On 11 September 2015, the Commission received notification, in accordance with Article 4 of Regulation No 139/2004, of a proposed concentration whereby CK Hutchison Holdings Ltd was to acquire, through the intermediary of its indirect subsidiary Hutchison 3G UK Investments, which became the applicant at first instance, CK Telecoms UK Investments Ltd (‘CK Telecoms’), in accordance with Article 3(1)(b) of that regulation, sole control over Telefónica Europe (‘O2’).

6. At the time of the facts which gave rise to the present case, there were, on the retail market for mobile telecommunication services in the United Kingdom (‘the retail market’), four mobile network operators: EE Ltd, which is a subsidiary of BT Group plc, acquired by BT Group in 2016 (together ‘BT/EE’), O2, Vodafone and Hutchison 3G UK Ltd (‘Three’), an indirect subsidiary of CK Hutchison Holdings, whose market shares, in terms of subscribers, were approximately [between 30 and 40%], [between 20 and 30%], [between 10 and 20%], and [between 10 and 20%] respectively. The concentration which is the subject of the present dispute (‘the concentration at issue’) would have enabled the merged entity, consisting of Three and O2 (together ‘the parties to the concentration’ or ‘the merging parties’) to account for approximately [between 30 and 40%] of the retail market and accordingly to become the main player on that market, ahead of the former legacy operator BT/EE and Vodafone.

7. In addition to those mobile network operators, the retail market also included several mobile virtual network operators, such as Tesco Mobile, Virgin Mobile and TalkTalk, which did not own the networks they used in order to provide mobile services to United Kingdom consumers and which had therefore concluded agreements with one or other mobile network operator so as to have access to its network at wholesale prices. Tesco Mobile was owned in equal shares by Tesco and O2. The retail market also included branded resellers (together with the mobile virtual network operators referred to as ‘non-MNOs’) and independent retailers, such as Dixons.

8. One particular characteristic of the retail market was that BT/EE and Three, on the one hand, and Vodafone and O2, on the other, had consolidated their networks through network-sharing agreements. That has enabled BT/EE and Three (under the MBNL joint venture, ‘MBNL’) and Vodafone and O2 (under the ‘Beacon’ agreements, ‘Beacon’), to share the costs of rolling out their respective networks while continuing to compete on retail trade.

9. On 2 October 2015, the United Kingdom of Great Britain and Northern Ireland requested, through the intermediary of its national competition authority, the Competition and Markets Authority (CMA), that the concentration at issue be referred to it, pursuant to Article 9(2)(a) of Regulation No 139/2004. In that request, the United Kingdom expressed the view that the concentration threatened significantly to impede competition on the retail market and on the market for wholesale access and call origination on public mobile networks in the United Kingdom (‘the wholesale market’). The United Kingdom also considered that it was the best placed to deal with the concentration at issue.

10. On 4 December 2015, the Commission adopted Decision C(2015) 8534 final concerning Article 9 of Regulation No 139/2004 in Case M.7612 Hutchison 3G UK/Telefónica UK, by which it rejected that referral request. In that decision, it considered in particular that it was necessary for it to ensure a coherent and consistent approach when assessing mergers in the telecommunications sector in various Member States and it also referred to the considerable expertise it had gained in the assessment of concentrations in the European mobile telecommunications markets.

11. After the phase I investigation, the Commission concluded that the transaction raised serious doubts as to its compatibility with the internal market and on 30 October 2015 the Commission adopted a decision to initiate the procedure under Article 6(1)(c) of Regulation No 139/2004.

12. On 4 February 2016, on the basis of the phase II investigation, which supplemented the findings of the phase I investigation, the Commission issued a Statement of Objections. CK Telecoms submitted its written observations on the Statement of Objections on 26 February 2016.

13. In order to address the competition concerns identified in the Statement of Objections, CK Telecoms submitted a first set of commitments on 2 March 2016.

14. At that company’s request, an oral hearing was held on 7 March 2016.

15. On 15 March 2016, CK Telecoms submitted revised commitments (‘the Second Commitments’). On 18 March 2016 the Commission launched a market test of the Second Commitments, in which it consulted, first, current and potential providers of mobile telecommunication services in the United Kingdom, providers of infrastructure services in the mobile telecommunications sector, and the associations MVNO Europe and iMVNOx and, second, national telecommunications regulators, including the United Kingdom telecommunications regulatory authority (Ofcom). In addition, the national competition authorities of the United Kingdom, Germany, and the Netherlands provided their views on the Second Commitments.

16. On 17 and 23 March 2016, the Commission sent CK Telecoms letters in which it pointed to additional evidence in its file in support of the preliminary findings of the Statement of Objections. On 29 March and 4 April 2016 CK Telecoms submitted written observations on the letters of facts of 17 and 23 March 2016 respectively.

17. On 6 April 2016, following the market test, that company submitted a further revised set of commitments.

18. The Advisory Committee on Concentrations discussed the draft of the Commission’s decision on 27 April 2016 and issued a favourable opinion.

19. On 11 May 2016, the Commission adopted the decision at issue.

B. The decision at issue

20. In the decision at issue, the Commission defined two relevant markets: the retail market and the wholesale market.

21. The Commission developed three theories of harm, all of which were based on the existence of ‘non-coordinated’ effects on an oligopolistic market.

22. The first two theories of harm relate to the retail market, while the third relates to the wholesale market.

23. More specifically, the first theory of harm relates to the existence of non-coordinated effects on the retail market arising from the elimination of important competitive constraints. In essence, according to the Commission, the sharp reduction in competition which would have resulted from the concentration at issue would probably have led to an increase in prices for mobile telephony services in the United Kingdom and a restriction of choice for consumers.

24. According to the second theory of harm, which relates to the existence of non-coordinated effects on the retail market relating to network sharing, the transaction would also be likely to have a negative influence on the quality of services for United Kingdom consumers, hindering the development of mobile network infrastructure in the United Kingdom.

25. The third theory of harm relates to the existence of non-coordinated effects arising from the elimination of important competitive constraints on the wholesale market. On that market, the four mobile network operators provide hosting services to non-MNOs, which in turn offer retail services to subscribers. In particular, according to the Commission, the concentration at issue is likely to have significant non-coordinated effects on the wholesale market resulting from a reduction in the number of mobile network operators from four to three, the elimination of Three as an important competitive force, the removal of important competitive constraints which the parties had previously exerted upon each other, and a reduction of competitive pressure on the remaining players.

26. As regards the efficiencies alleged by CK Telecoms, the Commission found that they were neither verifiable nor specific to the concentration at issue and were unlikely to benefit consumers.

27. In the final section of the decision at issue, the Commission examined the remedies proposed by CK Telecoms in the form of commitments. The Commission found that the Second Commitments did not eliminate the competition concerns identified and that the third set of commitments, proposed on 6 April 2016, did not eliminate the competition concerns identified and were neither comprehensive nor effective in all respects.

28. Consequently, the Commission declared the concentration at issue to be incompatible with the internal market.

C. The judgment under appeal

29. By application lodged at the Registry of the General Court on 25 July 2016, CK Telecoms brought an action for annulment of the decision at issue.

30. In support of that action, CK Telecoms relied on five pleas in law disputing, in turn, the three theories of harm developed in the decision at issue and the conclusions drawn by the Commission regarding the commitments given in order to address the Commission’s concerns.

31. The first and fourth pleas at first instance related to the first and third theories of harm developed in the decision at issue, which concern the elimination of competition between Three and O2 in the retail market (the first plea) and in the wholesale market (the fourth plea) respectively. The second plea related to the Commission’s assessment of the counterfactual scenario, on which it based its evaluation of the retail and wholesale markets. The third plea related to the Commission’s second theory of harm, which concerns the retail market, in relation to network sharing, and CK Telecoms’ commitments in relation to network sharing. The fifth plea concerned the other commitments offered by CK Telecoms.

32. In the judgment under appeal, the General Court annulled the decision at issue in its entirety, in essence on the ground that the Commission had failed to meet the standard of proof concerning the demonstration of coordinated effects giving rise to a significant impediment to effective competition, for the purposes of Article 2(3) of Regulation No 139/2004. To that end, the General Court upheld some of the complaints in the second part of the first plea, relating to Three being classified as an ‘important competitive force’, and the third and fifth parts of that plea, relating, respectively, to the assessment of the closeness of competition and to the quantitative effects of the concentration on prices. The General Court also upheld the first, third, fourth, fifth and sixth parts of the third plea, relating to (i) the need for and extent of alignment between the parties to the network-sharing agreements, (ii) Three’s ability to delay or frustrate BT/EE’s unilateral deployments, (iii) the Commission’s consideration of whether the concentration would harm competitors as opposed to competition, (iv) the harm to the competitive position of other mobile network operators and (v) the effect on overall network investments from increased transparency. Finally, the General Court upheld the first three parts of the fourth plea, relating to non-coordinated effects on the wholesale market.

III. The procedure before the Court of Justice and the forms of order sought

33. By document lodged at the Registry of the Court of Justice on 7 August 2020, the Commission brought the present appeal.

34. By a further document lodged on that date, the Commission asked the Court of Justice to grant confidential treatment, vis-à-vis EE only, being one of the two interveners at first instance, to certain passages of that appeal which contained information constituting business secrets and which corresponded to information for which the General Court had granted confidential treatment at first instance. By order of 1 October 2020, Commission v CK Telecoms UK Investments, ( ) the President of the Court of Justice granted that request.

35. By document lodged at the Court Registry on 20 November 2020, CK Telecoms asked the Court of Justice to grant confidential treatment, vis-à-vis EE only, to certain information contained in its response which constituted business secrets and which, for that reason, ought not be disclosed to EE, the latter being a competitor of CK Telecoms, and which corresponded to information for which the General Court had granted confidential treatment at first instance vis-à-vis EE. By order of 26 January 2021, Commission v CK Telecoms UK Investments, ( ) the President of the Court granted confidential treatment, vis-à-vis EE, in relation to that pleading.

36. By document lodged at the Court Registry on 24 March 2021, the EFTA Surveillance Authority applied for leave to intervene in the present case in support of the form of order sought by the Commission. By order of 4 June 2021, Commission v CK Telecoms UK Investments, ( ) the President of the Court allowed the EFTA Surveillance Authority to submit its observations at the hearing.

37. The Commission, supported by the EFTA Surveillance Authority, claims that the Court should:

– set aside the judgment under appeal;

– refer the case back to the General Court;

– order CK Telecoms to pay the costs of the present appeal; and

– reserve the costs of the proceedings at first instance.

38. CK Telecoms contends that the Court should:

– dismiss the appeal, and

– order the Commission and the interveners to pay the costs of the proceedings both before the General Court and the Court of Justice.

39. On 5 May 2022, the Court put written questions to the parties and to the EFTA Surveillance Authority, and invited them to respond to those questions in part in writing, which they did within the prescribed period, and in part at the hearing.

40. The parties and the EFTA Surveillance Authority presented oral argument and answered the questions put by the Court at the hearing held on 14 June 2022.

IV. Assessment

A. Preliminary observations

41. The present case is the first case in which the Court has been given the opportunity to provide a ruling on the concept of ‘significant impediment to effective competition’, in so far as it is based on non-coordinated effects, and to provide clarification both concerning the standard of proof which the Commission is required to meet for the purposes of applying that concept and concerning the scope of the review of legality which the EU Courts are called upon to carry out in that regard.

42. In the present case, it is common ground that the concentration at issue did not lead to the creation or strengthening of a dominant position on the relevant markets, all of which have an oligopolistic structure. However, according to the decision at issue, the concentration at issue is likely to give rise to non-coordinated effects which are, in principle, sufficient to satisfy the concept of ‘significant impediment to effective competition’ for the purposes of Article 2(3) of Regulation No 139/2004. In order to establish the existence of such an impediment resulting from non-coordinated effects, the Commission relied in the decision at issue on three theories of harm relating to the relevant retail and wholesale markets (see points 21 to 25 above).

43. That approach by the Commission having, to a large extent, been criticised by the General Court, the Commission puts forward six grounds of appeal, alleging, in essence, (i) an error of law in that the General Court applied a stricter standard of proof than that recognised by the Court of Justice, (ii) a misinterpretation of the concept of ‘significant impediment to effective competition’ referred to in Article 2(3) of Regulation No 139/2004, (iii) an error of law in that the General Court exceeded the limits of judicial review when interpreting the concepts of ‘important competitive force’ and ‘close competitors’ and erroneously adopted an interpretation based on a distortion of both the decision at issue and the defence lodged before the General Court, (iv) a distortion of the Commission’s arguments concerning its quantitative analysis of upward pricing pressure (‘the quantitative analysis’ or ‘the UPP analysis’) and errors of law by the General Court in its assessment of that analysis, (v) an error of law in that the General Court failed to assess all the relevant factors and evidence and, (vi) a distortion of the decision at issue as regards the analysis of a possible degradation of the quality of the merged entity’s network and a breach of the obligation to state reasons.

44. The Commission takes the view that each of those alleged errors of law is sufficient in itself to lead to the judgment under appeal being set aside. However, in view of the importance of the issues raised by the present case and the fact that it should be referred back to the General Court, the Commission invites the Court of Justice to clarify as many of the legal issues raised as possible, so that the General Court has the guidance necessary to give final judgment in the case.

45. The first to third grounds of appeal, concerning, respectively, the standard of proof and the scope of the concept of ‘significant impediment to effective competition’ therefore lie at the heart of the present appeal proceedings. In that regard, accurate determination of the requirements governing evidence of the existence of non-coordinated effects, on the one hand, and the review which the EU Courts are meant to carry out concerning the application of that concept, on the other hand, interact with one another and may anticipate, at least in part, the responses which are to be given in respect of the various parts of those grounds of appeal. Such clarification appears all the more important as it is clear from the exchanges of arguments between the parties, including at the hearing, that the concept of ‘significant impediment to effective competition’, the scope of the judicial review as concerns how the Commission applied it and the standard of proof relating thereto are likely to be unduly conflated or even confused. ( )

B. The first ground of appeal, alleging an error of law in that the General Court applied a stricter standard of proof than that recognised in the case-law

46. By its first ground of appeal, the Commission argues that, in holding in paragraph 118 of the judgment under appeal that the Commission was required to produce sufficient evidence to demonstrate with a ‘strong probability’ the existence of a significant impediment to effective competition, the General Court erred in law in applying a stricter standard of proof than that recognised in the case-law of the Court of Justice in the area of merger control. In addition, by its second ground of appeal, the Commission alleges that the General Court erred in law, first, by equating the conditions which must be fulfilled in order to find that the concentration at issue was likely to give rise to non-coordinated effects with the conditions which must be fulfilled in order to demonstrate the existence of a dominant position (first part) and, second, by interpreting too restrictively Article 2(3) of Regulation No 139/2004 (second part).

47. As a preliminary point, it is necessary to reject CK Telecoms’ argument that the appeal and in particular the first ground of the appeal are ineffective on the ground that the Commission has not called into question the General Court’s findings criticising the Commission for misapplying the concept of a ‘significant impediment to effective competition’, in particular the ‘significant’ nature of that impediment allegedly caused by the non-coordinated effects in question, including in relation to the assessment of the concepts of ‘important competitive force’ and ‘close competitors’. As the Commission correctly submits, it is apparent, in particular, from paragraphs 119, 172, 216, 281 and 396 of the judgment under appeal, that the standard of proof adopted in paragraph 118 of that judgment constitutes the very basis for the General Court’s subsequent assessment of the facts and evidence relevant to its conclusion that the Commission failed to demonstrate, to the requisite legal standard, the existence of a significant impediment to effective competition, and the same also applies to the reasoning, in that judgment, concerning the concepts of ‘important competitive force’ and ‘close competitors’, which are the subject matter of the third ground of appeal.

48. In the first place, it is important to recall, as the General Court also does in paragraph 81 et seq. of the judgment under appeal, that the concept of ‘significant impediment to effective competition’, for the purposes of Article 2(2) and (3) of Regulation No 139/2004, was fundamentally modified with the adoption of that regulation, as evidenced by recitals 25 and 26 thereof. Under the previous provision, that is to say Article 2(2) and (3) of Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings, ( ) that concept was still closely linked to the creation or strengthening of a dominant position. ( ) In other words, as is clear from those recitals of Regulation No 139/2004, the criterion of ‘dominance’ as a result of which effective competition would be significantly impeded has been replaced by a broader criterion of ‘significant impediment to effective competition’, which includes not only the concept of dominance, but also that of non-coordinated effects on oligopolistic markets.

49. However, it does not follow from any legislation or case-law that that new, broader concept of ‘significant impediment to effective competition’ is easier or more difficult for the Commission to apply nor that evidence of a lesser degree of harm to competition is sufficient to allow the Commission to prohibit a concentration under Article 2(3) of Regulation No 139/2004. On the contrary, both before and after the 2004 reform, the Commission was and continues to be required to establish a ‘significant impediment to effective competition’, irrespective of whether or not that impediment was or is the consequence of a dominant position.

50. In the second place, it follows that the scope of judicial review as regards application of the concept of ‘significant impediment to effective competition’, which is a concept of law, must be the same, irrespective of the type of concentration concerned which may give rise to such an impediment.

51. In that regard, the case-law has clarified the criteria governing the judicial review of complex, including forward-looking, economic assessments by the Commission in the context of merger control. The Commission has a margin of discretion with regard to economic matters for the purposes of applying the substantive rules of Regulation No 139/2004, in particular Article 2. It follows that the review by the EU Courts of a Commission decision relating to concentrations is confined to ascertaining that the facts have been accurately stated and that there has been no manifest error of assessment. Accordingly, the EU Courts must not substitute their own economic assessment for that of the Commission for the purposes of applying those rules, even though that does not mean that the EU Courts must refrain from reviewing the Commission’s interpretation of information of an economic nature. ( )

52. The principles set out in the preceding point are without prejudice to the clarifications made by the Court of Justice regarding the burden of proof, the taking of evidence and the standard of proof, ( ) where the Commission exercises its margin of discretion, ( ) which I shall discuss below. Moreover, in the judgment under appeal, those principles were not expressly applied by the General Court, which confined itself to ruling, first, on the ‘scope of the change made by Regulation No 139/2004’, ( ) and, second, on the ‘burden of proof and standard of proof in relation to concentrations’. ( ) The fact remains that, in the judgment under appeal, the General Court departed in a number places from the concept of ‘manifest error of assessment’ and held that mere ‘errors of assessment’ had been made. ( ) Even though the Commission did not directly challenge that approach in its appeal, with the result that it cannot be further examined in the present case, it is in itself an indication that the General Court has carried out a more far reaching judicial review than that described in point 51 above.

53. In the third place, it is necessary to examine more closely the criteria governing the burden of proof, the taking of evidence and the standard of proof which the EU Courts must require the Commission to apply when it prohibits a concentration on the ground of a significant impediment to effective competition resulting from non-coordinated effects on an oligopolistic market.

54. In that regard, I consider that two considerations of principle apply, the first of which does not appear to me to have been called into question by any of the parties, in particular at the hearing.

55. First, as is apparent from the judgment of 10 July 2008, Bertelsmann and Sony Corporation of America v Impala, ( ) Article 2(2) and (3) of Regulation No 139/2004 does not impose different standards of proof with respect to decisions authorising a concentration and decisions prohibiting a concentration, since those standards of proof are perfectly symmetrical.

56. Second, even though, in that judgment, ( ) the Court did not expressly identify the relevant test for the standard of proof required as being the ‘balance of probabilities’ test, the fact remains that it required the Commission to provide evidence of the ‘most likely’ outcome or ‘plausibility’ of its prospective analysis, which consists of an examination of how, in the light of the various conceivable chains of cause and effect, the merger concerned could give rise to a significant impediment to effective competition. ( ) As both the Commission and the EFTA Surveillance Authority are fully entitled to argue, the requirement to demonstrate the ‘most likely’ outcome or plausibility of the Commission’s prospective economic analysis seems to me to correspond precisely to the ‘balance of probabilities’ test, as described in my Opinion in that case and according to which the market development envisaged need not be ‘very probable’ or ‘particularly likely’ or established ‘beyond reasonable doubt’, in accordance with the particularly high standard applicable in criminal or quasi-criminal matters. ( ) In addition, contrary to the impression conveyed by paragraph 118 in fine of the judgment under appeal, the Court did not adopt, as Advocate General Tizzano had done, in particular in the case of ‘conglomerate’ type concentrations, a standard of proof equivalent to the need to demonstrate that the creation or strengthening of a dominant position and necessarily, therefore, also a significant impediment to effective competition were ‘very probable’. ( ) In any event, only the standard of proof associated with the ‘plausibility’ or ‘balance of probabilities’ test seems to me to be compatible with the discretion enjoyed by the Commission in the context of its (forward-looking) complex economic analyses in relation to concentrations, which is why the scope of the judicial review is, in essence, limited to ascertaining whether there have been manifest errors of assessment (see point 51 above). ( )

57. By contrast, paragraph 118 of the judgment under appeal states, first, that the Commission is required to produce sufficient evidence to demonstrate with a ‘strong probability’ the existence of significant impediments caused by the concentration at issue and, second, that the standard of proof applicable is therefore ‘stricter’ than that under which a significant impediment to effective competition is ‘more likely than not’, on the basis of a ‘balance of probabilities’. Accordingly, as the Commission is fully entitled to argue, in so doing, the General Court required a higher standard of proof, contrary to the premisses of the case-law set out in points 55 and 56 above and therefore erred in law.

58. That conclusion is all the more compelling, since it is not possible to provide ‘objective’ proof of a forecast or for it to be free of uncertainties and doubts. Accordingly, on a general or abstract level, any prospective analysis relating to the future developments of a relevant market and the future behaviour of operators who are or will be active on it can be based only on the determination of a more or less strong probability, the plausibility of which, in the sense of the ‘balance of probabilities’ standard of proof, is such that it is sufficient, in a particular case, to establish the validity of the Commission’s argument. ( )

59. It is only in a particular case, in which the EU Courts are freely assessing the evidence, that the question arises as to how, for the purpose of persuading those Courts, such plausibility can be substantiated by sufficiently significant and convincing evidence, the case-law relating to concentrations giving rise to ‘conglomerate’ type or ‘collective’ type dominant positions having emphasised the importance of the quality of such evidence. ( ) By contrast, as has been stated in the case-law, in general terms, neither the type of concentration nor the complexity of assessing the plausibility of the possible effects of a concentration has, as such, an effect on the standard of proof required, which therefore remains the same in all circumstances. ( ) On the contrary, in view of the unitary nature of the concept of ‘significant impediment to effective competition’, irrespective of the type of concentration concerned (see point 49 above), and the symmetry of the standard of proof noted in point 55 above, there is no justification for requiring a higher standard of proof in the case of concentrations giving rise to non-coordinated effects on oligopolistic markets than in the case of concentrations giving rise to ‘conglomerate’ or ‘collective’ type dominant positions.

60. It follows from the foregoing considerations that paragraph 118 of the judgment under appeal is vitiated by an error of law. The same is true of the finding in paragraph 111 of that judgment that, in essence, the EU Court must require a higher standard of proof where the Commission advances, in support of a significant impediment to effective competition put forward with regard to a concentration, a theory of harm which is complex or uncertain, or stems from a cause-and-effect relationship which is difficult to establish.

61. In those paragraphs, the General Court confuses, on the one hand, the necessary conviction which the EU Courts must have, in a particular case, when freely assessing the evidence brought before them to support the plausibility of the various consequences such a concentration may have and to identify the most likely to arise, ( ) with, on the other hand, the uniform and generally applicable standard of proof which is based on the ‘balance of probabilities’ test. In addition, although in paragraph 113 in fine of the judgment under appeal the General Court itself claims to endorse the ‘most likely to ensue’ test, it errs and contradicts itself in ultimately rejecting that test in paragraph 118 of the judgment under appeal by requiring a stricter standard of proof. Finally, in particular, paragraphs 332 and 368 of that judgment, which refer to paragraph 111 of the same judgment, demonstrate that that error of law did indeed have consequences for the rest of the General Court’s assessment. ( )

62. It follows that the considerations set out in paragraphs 110 to 118 of the judgment under appeal are vitiated by errors of law.

63. In that regard, CK Telecoms’ argument at the hearing that the standard of proof required should be higher in the present case in order to prevent the Commission, in the exercise of its discretion, from systematically prohibiting horizontal mergers in oligopolistic markets on the basis of alleged non-coordinated effects cannot succeed. CK Telecoms has not adduced any convincing evidence to show that such an approach is conceivable or actually possible in the light of the criteria developed in the case-law set out in points 51 and 56 above.

64. That is all the less so because, according to paragraphs 26 to 38 of the Guidelines, the Commission is supposed to investigate and assess a large number of factors and great deal of evidence which may give rise to a finding of the existence of non-coordinated effects and, consequently, a significant impediment to effective competition, an approach which the Commission adopted in the present case. As the General Court itself recognised, in paragraph 287 of the judgment under appeal, to that end the Commission examined in turn various factors in recitals 330 to 1174 of the decision at issue and summarised its qualitative and quantitative assessment in recitals 1175 to 1225 of that decision, before making an overall assessment in recitals 1226 and 1227 of that decision.

65. Accordingly, the first ground of appeal must be upheld.

66. It also follows that, should the Court of Justice follow the approach proposed above, those errors of law would, in principle, constitute in themselves a sufficient basis for setting aside the judgment under appeal and referring the case back to the General Court, without an examination of the Commission’s other grounds of appeal.

67. However, for the sake of completeness, as requested by the Commission and in the light of the General Court’s many criticisms that the Commission disregarded the applicable rules, I shall also examine the other grounds of appeal. Moreover, it seems to me useful to clarify as many legal issues as possible with reference to a possible referral of the present case back to the General Court.

C. The second ground of appeal, alleging misinterpretation of Article 2(3) of Regulation No 139/2004

68. The second ground of appeal comprises two parts, the first alleging an error of law in that the General Court equated the conditions for establishing that the concentration at issue could give rise to non-coordinated effects with the conditions for establishing the existence of a dominant position and the second alleging a restrictive interpretation of Article 2(3) of Regulation No 139/2004.

1. The first part of the second ground of appeal, alleging an error of law in that the General Court equated the conditions for establishing that the concentration at issue could give rise to non-coordinated effects with the conditions for establishing the existence of a dominant position

69. By the first part of the second ground of appeal, the Commission submits that, in paragraph 90 of the judgment under appeal, in using the expression ‘by itself’, the General Court equated the conditions for establishing that the concentration at issue could give rise to non-coordinated effects with the conditions for establishing the existence of a dominant position and, consequently, gave a restrictive interpretation of Article 2(3) of Regulation No 139/2004.

70. However, as CK Telecoms contends, that argument is ineffective in that it challenges a general finding by the General Court which did not serve as the basis for a specific assessment of an alleged error by the Commission in applying the concept of ‘significant impediment to effective competition’ for the purposes of Article 2(3) of Regulation No 139/2004. Accordingly, the Commission fails to identify any passage in the judgment under appeal which is based on that finding, to the effect that the Commission took as a basis in the decision at issue that the merged entity had market power equivalent to a dominant position which allowed it (unilaterally) to determine the parameters of competition, and even prices.

71. Consequently, the first part of the second ground of appeal cannot be upheld.

2. The second part of the second ground of appeal, alleging a restrictive interpretation of Article 2(3) of Regulation No 139/2004

72. By the second part of the second ground of appeal, the Commission alleges that, in paragraphs 95 and 96 of the judgment under appeal, the General Court erred in holding that Article 2(3) of Regulation No 139/2004, read in the light of recital 25 of that regulation, had to be interpreted as meaning that, in the absence of the creation or strengthening of a dominant position following a concentration, a significant impediment to effective competition can be established only if the Commission demonstrated that two cumulative and exhaustive conditions were fulfilled, that is to say (i) the elimination of important competitive constraints that the merging parties had exerted upon each other and (ii) a reduction of competitive pressure on the remaining competitors. In particular, the Commission argues that the General Court’s approach is too restrictive in its interpretation of the concept of ‘significant impediment to effective competition’, in the application of which the Commission is required to take into account not only the reduction of competitive pressure on competitors but also the reduction of competitive pressure exerted by competitors, as is the case with the second theory of harm applied in the decision at issue, which the General Court regarded as insufficient in paragraph 370 of the judgment under appeal.

73. I agree with the Commission’s argument that paragraphs 95 and 96 (and, ultimately, 370) of the judgment under appeal, the content of which it has correctly recalled, demonstrate both a formalistic and a reductionist reading of the concept of ‘significant impediment to effective competition’, for the purposes of Article 2(3) of Regulation No 139/2004, by limiting that concept to the two allegedly cumulative conditions set out in recital 25 thereof. It is true that the EU legislature intended that recital 25 should constitute an important element in determining the scope of that concept. However, that recital is in itself neither legally binding ( ) nor capable of providing a basis for an interpretation of that Article 2 which is contrary to the objectives pursued by that regulation, that is to say, in particular, the effective control of any concentration falling within its scope which is liable significantly to impede effective competition, including in oligopolistic markets. The same applies to paragraph 25 of the Guidelines, the wording of which largely coincides with that of recital 25 of Regulation No 139/2004, since such rules of conduct adopted by the Commission are legally binding neither on the EU Courts nor on the Member States. ( )

74. It must be concluded that, if it were to be upheld, the interpretation of Article 2(3) of Regulation No 139/2004 set out in paragraph 96 of the judgment under appeal would have the effect of preventing the Commission not only from investigating, taking into account and weighing up as a whole the competitive relationships and forces which determine the functioning of an oligopolistic market, but also from developing, in connection with a proposed concentration on such a market, theories of harm which do not fulfil the two allegedly cumulative, or even exhaustive, conditions laid down by the General Court. Accordingly, in the present case, only the Commission’s first theory of harm, as described in paragraphs 128 to 133 of the judgment under appeal, is capable of fulfilling those requirements, whereas its second theory of harm, assessed in paragraph 330 et seq. of that judgment, is not, as is confirmed by paragraph 370 thereof.

75. In particular, the General Court’s categorical approach would have the effect of declaring it unlawful, as being contrary to Article 2(3) of Regulation No 139/2004, to take into account a reduction in the competitive pressure exerted by competitors following a concentration. However, in general, such pressure forms an integral part of any analysis for the purpose of applying the EU competition rules, including the analysis directed at determining the relevant market, the market power exercised by operators on it or conduct which may lead to anticompetitive foreclosure. ( ) In my view, such a restrictive interpretation does not appear to be justified by any convincing consideration.

76. Such an approach is even less possible since, regardless of the fact that it is not legally binding, recital 25 of Regulation No 139/2004, in so far as it uses the conjunction ‘as well as’, can also be interpreted as merely specifying, by way of examples, two particularly relevant or recurrent situations which may give rise to significant impediments to effective competition caused by horizontal non-coordinated effects. In merely providing those examples, that recital does not exclude other situations likely to produce those same effects or to contribute to them, in particular a situation in which competitive pressure exerted by competitors is significantly reduced. Finally, it cannot be ruled out that only one of those situations, the effects of which may be particularly detrimental to competition, might be sufficient for a finding that a significant impediment to effective competition exists.

77. Therefore, the assessment set out in paragraph 96 of the judgment under appeal is erroneous in two respects, in so far as, first, it classifies the two conditions set out in recital 25 of Regulation No 139/2004 as both ‘cumulative’ and, at least implicitly, exhaustive and, second, it relies on that interpretation in determining the scope of the concept of ‘significant impediment to effective competition’ under Article 2(3) of that regulation.

78. Moreover, as the Commission correctly points out, paragraph 370 of the judgment under appeal demonstrates that the General Court’s approach is contradictory in that regard, in that it took account of competition exerted by competitors, even though such competition is not referred to in recital 25 of Regulation No 139/2004. More specifically, in that paragraph, the General Court did not rule out the relevance of any effect of a reduction in the competitive pressure exerted by other competitors on the market, in terms of quality, but stated that that effect alone was not sufficient to demonstrate a significant impediment to effective competition.

79. Furthermore, the General Court decided not to reject the first of the sub-theories advanced in the context of the second theory of harm, summarised in paragraph 298 of the judgment under appeal and in recital 1232 of the decision at issue on the ground that that sub-theory did not fulfil the cumulative conditions listed in paragraph 96 of that judgment. That sub-theory consists, in essence, in a finding of a reduction in the competitive pressure exerted by the other competitors, namely BT/EE and Vodafone, on the merged entity following the concentration at issue. Notwithstanding its (erroneous) interpretation of the scope of recital 25 of Regulation No 139/2004, the General Court examined that sub-theory and rejected it on the merits, since the Commission had, in the General Court’s view, failed to demonstrate to the requisite legal standard that BT/EE and Vodafone were unable to exert effective competitive pressure on the merged entity. ( ) Finally, despite the fact that, in paragraph 359 of the judgment under appeal, the General Court again emphasised the need to fulfil the cumulative conditions set out in paragraph 96 of that judgment, it failed to take account of the second allegedly cumulative condition, according to which the Commission is required to demonstrate that the concentration at issue leads to a ‘a reduction of competitive pressure on the remaining competitors’ (emphasis added).

80. However, by proceeding in that manner, the General Court adopted a contradictory approach and made errors of law in interpreting the criteria required to demonstrate a significant impediment to effective competition, with the result that the second part of the second ground of appeal must be upheld.

D. The third ground of appeal, alleging, first, an error of law in that the General Court, in particular, exceeded the limits of judicial review in interpreting the concepts of ‘important competitive force’ and ‘close competitors’ and, second, a distortion of both the decision at issue and the defence at first instance

81. The third ground of appeal comprises, in essence, four parts, alleging (i) an error of law in that the General Court exceeded the limits of judicial review in interpreting the concepts of ‘important competitive force’ and ‘close competitors’, (ii) a misinterpretation of the concept of ‘important competitive force’ and a distortion of both the decision at issue and the defence at first instance, (iii) a misinterpretation of the concept of ‘close competitors’ and a distortion of the decision at issue, and (iv), in the alternative, a breach of the obligation to state reasons concerning any incompatibility of the Guidelines with Regulation No 139/2004.

1. The first part of the third ground of appeal, alleging an error of law in that the General Court exceeded the limits of judicial review in interpreting the concepts of ‘important competitive force’ and ‘close competitors’

82. By the first part of the third ground of appeal, the Commission argues, in essence, that, in holding, first, in paragraph 174 of the judgment under appeal, that an undertaking can be classified as an ‘important competitive force’ only if it stands out from its competitors in terms of impact on competition and, second, in paragraph 242 of that judgment, that the Commission must show that the parties to the concentration are ‘particularly close competitors’, the General Court departed from the concepts of ‘important competitive force’ and ‘close competitors’ set out in the Guidelines and from the economic framework set out therein. The General Court therefore disregarded the Commission’s margin of discretion with regard to economic matters and improperly substituted its own economic assessment for that of the Commission. In so doing, the General Court exceeded the limits of judicial review.

83. As is clear from the Commission’s introductory observations in the context of the third ground of appeal, it takes the view that, on the basis of its margin of discretion with regard to economic matters, it has an exclusive power to interpret the economic concepts contained in the Guidelines. More specifically, the Commission takes the view that, in so far as those guidelines are compatible with the requirements of Regulation No 139/2004 and primary EU law, the judicial review carried out by the General Court must be limited to ascertaining whether the decision at issue complies with the criteria laid down by the Commission in the Guidelines, in the exercise of that margin of discretion.

84. It is true that in the context of its review of mergers, the Commission has a margin of discretion with regard to economic matters. Accordingly, as stated in point 51 above, in so far as the Commission is required, in that context, to make complex economic assessments, the General Court is prohibited from substituting its economic assessment for that of the Commission.

85. However, it is also apparent from settled case-law, referred to in point 73 above, that the Guidelines cannot legally bind the EU Courts. Those guidelines are binding only on the Commission itself, which, by adopting them, has imposed a limit on the exercise of its discretion, with the result that it cannot depart from them without objective justification, and if it does so, may breach, in particular, the principle of equal treatment. ( ) It is only in that context that, according to the case-law, it cannot be precluded that, subject to certain conditions and depending on their content, such rules of conduct, which are of general application, may produce legal effects. ( ) This applies a fortiori to economic concepts which the Commission defines in such guidelines in order to guide its administrative practice.

86. By contrast, when those concepts are derived from or dependent on legal concepts of primary or secondary EU law, the situation is different. In the case of legal concepts which have not been delimited, including the concept of ‘significant impediment to effective competition’, the EU Courts have an exclusive and definitive power of interpretation. ( )

87. In the light of the foregoing, there is therefore no error of law in the finding in paragraph 100 of the judgment under appeal that, in essence, the Commission’s Guidelines, as well as its previous practice, cannot, in any event, bind the EU Courts, which have exclusive jurisdiction to interpret EU law.

88. I would like to point out that the fact that an act of the Commission, such as the Guidelines, is not legally binding in the strict sense does not prevent the Court of Justice from interpreting it, in particular in the context of a preliminary ruling procedure under point b of the first paragraph of Article 267 TFEU. ( ) Furthermore, it cannot be ruled out that the EU Courts may draw inspiration from economic concepts derived from the Commission’s rules of conduct or administrative practice in order to clarify the scope of legal concepts in EU law or even in order to recognise new legal concepts or tests. On the contrary, numerous such examples are found in the case-law, including in competition matters in the broad sense. ( ) The finding in paragraphs 101 and 163 of the judgment under appeal that the General Court may, where appropriate, adopt the guidance and the economic or legal assessments contained in the Commission’s practice in previous decisions or in its Guidelines does not therefore contain any error of law.

89. It follows that, in principle, there is nothing to prevent the EU Courts from clarifying the scope of the concepts of ‘close competitors’ and ‘important competitive force’, contained in paragraphs 28, 37 and 38 of the Guidelines, in order to determine, in particular, whether the Commission correctly applied those concepts in the present case when concluding that there is a significant impediment to effective competition or whether the Commission remained within the limits of the rules of conduct which it has imposed on itself.

90. Therefore, in interpreting those concepts, the General Court did not disregard the Commission’s margin of discretion with regard to economic matters, nor did it improperly substitute its own economic assessment for that of the Commission or exceed the limits of judicial review.

91. Accordingly, the first part of the third ground of appeal cannot succeed.

2. The second part of the third ground of appeal, alleging misinterpretation of the concept of ‘important competitive force’ and distortion of both the decision at issue and the defence at first instance

92. The second part of the third ground of appeal comprises two complaints.

(a) The first complaint

93. By the first complaint in the second part of the third ground of appeal, the Commission argues that the General Court distorted both the decision at issue and the defence at first instance, thereby vitiating its assessment set out in paragraphs 173 to 175 of the judgment under appeal with errors of assessment. First, the Commission complains that the General Court erred in holding, in paragraph 171 of that judgment, that, in the decision at issue, the Commission had found that the classification of a party to the concentration as an ‘important competitive force’ in an oligopolistic market suffices as a basis for concluding that the concentration at issue would give rise to a significant impediment to effective competition. Second, the Commission claims that, in paragraph 170 of that judgment, the General Court distorted paragraph 39 of the defence, which led the General Court to create its own definition of the concept of ‘important competitive force’, which differs from that used in paragraph 37 of the Guidelines.

94. In the first place, as regards the alleged distortion of the decision at issue, it is clear from a comparison of paragraphs 155 and 171 of the judgment under appeal that the reasoning of the General Court is indeed contradictory.

95. In paragraph 155 of the judgment under appeal, the General Court correctly notes that it is apparent from recital 777 of the decision at issue that ‘one of the factors which the Commission took into account in concluding that the concentration would give rise to non-coordinated effects was that “Three constitute[d] an important competitive force in the [retail market] … pursuant to paragraph 37 of the … Guidelines, or in any event it exert[ed] an important competitive constraint on that market, and [was] likely to continue exerting such a constraint absent the transaction”’. ( )

96. By contrast, paragraph 171 of the judgment under appeal states that ‘it is apparent from the [decision at issue] that, as regards the elimination of an “important competitive force”, the Commission is of the opinion that the mere decline in the competitive pressure which would result, in particular, from the loss of an undertaking having more of an influence on competition than its market share would suggest is sufficient, in itself, to prove a significant impediment to effective competition’. ( )

97. Furthermore, contrary to what is stated in paragraph 171 of the judgment under appeal, the Commission considered, in the general sections of the decision at issue entitled ‘Competitive assessment’ and ‘Analytical framework’, ( ) as well as in the section entitled ‘The Legal test’, ( ) and in particular in recitals 313 and 321 of that decision, that the Guidelines contain a number of factors which could have a bearing on whether or not the concentration could have horizontal non-coordinated effects in the relevant market. While it is true that the Commission also stated in the decision at issue that not all of those factors need to be present for such effects to be likely and that those factors being present could have a bearing on the extent of the non-coordinated effects, the fact remains that the Commission did not infer from this that the presence of only one of those factors would be sufficient for a finding that that concentration would be likely to lead to a significant impediment to effective competition.

98. Finally, neither the decision at issue nor CK Telecoms’ pleadings indicate that the Commission, in its assessment of the concentration at issue, actually reached the conclusion set out in paragraph 171 of the judgment under appeal. This appears even less credible since, in accordance with paragraph 26 of the Guidelines, which the Commission applied in the present case, the fact that one of the parties to the concentration can be classified as an ‘important competitive force’ is only one of the factors, listed in paragraphs 27 to 38 of those guidelines, which may influence whether significant non-coordinated effects are likely to result from a concentration.

99. Accordingly, I consider that paragraph 171 of the judgment under appeal is a distortion which is obvious from the documents in the Court’s file, there being no need for a new assessment of the facts and evidence. ( ) As is apparent, in particular, from paragraphs 172 to 174 of the judgment under appeal, that distortion had consequences in that, along with other considerations, it led the General Court to conclude that recital 326 of the decision at issue was vitiated by an error of law and an ‘error of assessment’.

100. The first complaint must, therefore, be upheld in so far as it alleges that, in paragraph 171 of the judgment under appeal, the General Court distorted the decision at issue.

101. In the second place, as regards the argument that the General Court created its own definition of the concept of ‘important competitive force’, it is sufficient to reject it for the reasons set out in points 83 to 90 above.

102. In the third place, I consider that the first complaint must be upheld in so far as the Commission complains that the General Court distorted paragraph 39 of its defence in finding, in paragraph 170 of the judgment under appeal, that the Commission had ‘conceded that an “important competitive force” must have more of an influence on competition than its market share would suggest, compete in a particularly aggressive way and force other players to follow that conduct’.

103. As is clear from the last part of paragraph 216 of the judgment under appeal, the General Court relied on that definition of the concept of ‘important competitive force’, which was allegedly used in the defence, to ascertain whether the Commission had demonstrated to the requisite legal standard that Three was competing particularly aggressively in terms of prices and that it forced the other players on the market to align with its prices or that its pricing policy was capable of significantly altering the competitive dynamics on the market. The General Court ultimately concluded that the Commission had made an ‘error of assessment’ in that regard, on the ground that that undertaking could not be classified as an ‘important competitive force’.

104. However, it must be noted that no such definition is to be found in the decision at issue, including in recital 326, the legality of which the General Court claims to have reviewed in that context. ( ) It should be added that the last two sentences of paragraph 39 of the defence merely provide an example to support the Commission’s argument that ‘not every competitor in an oligopolistic market has more of an influence on the competitive process than its market shares or other similar measures would suggest’.

105. Therefore, the first complaint in the second part of the third ground of appeal must be upheld in so far as it alleges that the General Court distorted the decision at issue and the defence at first instance.

(b) The second complaint

106. By the second complaint, the Commission alleges, in essence, that the General Court erred in law in that it imposed excessive requirements for classifying an undertaking as an ‘important competitive force’. In that regard, it should be recalled that, in paragraph 174 of the judgment under appeal, it is stated that, in order to make such a classification, the Commission must, inter alia, examine whether that undertaking stands out from its competitors in terms of impact on competition. In addition, in paragraphs 170 and 216 of that judgment, it is stated that the Commission is required to show to the requisite legal standard that that undertaking ‘[is] competing particularly aggressively in terms of prices’ and ‘force[s] the other players on the market to align with its prices or that its pricing policy [is] capable of significantly altering the competitive dynamics on the market, in accordance with the definition of the concept of “important competitive force”’.

107. By contrast, paragraph 37 of the Guidelines, which the Commission has applied in the present case, merely states that ‘some firms have more of an influence on the competitive process than their market shares or similar measures would suggest’ and that ‘a merger involving such a firm may change the competitive dynamics in a significant, anticompetitive way, in particular when the market is already concentrated’. That paragraph gives the example of a firm which is a recent entrant on the market and is likely to exert ‘significant competitive pressure in the future on the other firms in the market’. ( )

108. Therefore, neither paragraph 37 nor paragraph 38 of the Guidelines presupposes that an undertaking classified as an ‘important competitive force’ must stand out from its competitors in terms of its impact on competition or be ‘competing particularly aggressively in terms of prices’, forcing those competitors to align with its prices. It is sufficient that such an undertaking has more of an influence on the competitive process than its market share or similar measures would suggest, independently of other competitors in the market.

109. The General Court was, therefore, not entitled to criticise the Commission, albeit implicitly, for having departed, in the decision at issue, from the criteria which the Commission had imposed on itself in paragraphs 37 and 38 of the Guidelines. Moreover, the two criteria set out in paragraphs 170 and 216 of the judgment under appeal, which were not found in that decision, in fact related only to an example provided in the defence at first instance, the content of which was distorted by the General Court (see points 102 and 103 above). That example concerns a situation in which an undertaking could be regarded as being an ‘important competitive force’, and does not seek to define the scope of that concept on a general level. Similarly, the fact that the Commission, in its previous decision-making practice, as recalled in paragraphs 164 to 167 of the judgment under appeal and which is not binding on the EU Courts, ( ) has taken the view that certain undertakings played a unique role as ‘mavericks in the market’ does not imply that the concept of ‘important competitive force’ applies only in those situations.

110. In addition, no convincing argument has been put forward to establish that the scope of the concept of ‘important competitive force’, within the meaning of paragraphs 37 and 38 of the Guidelines, ought to be interpreted in such a restrictive manner or in a manner differing from that adopted in paragraph 37 of the Guidelines and recital 326 of the decision at issue. On the contrary, such an interpretation would risk underestimating from the outset the competitive forces present within an already concentrated oligopolistic market. Even though the adjective ‘important’ implies that the competitive behaviour of the undertaking concerned on the market should be substantial, that is to say such as to ‘change the competitive dynamics in a significant, anticompetitive way’ extending beyond the undertaking’s significance in terms of market shares or similar measures, it cannot be interpreted as requiring that undertaking to be ‘competing particularly aggressively in terms of prices’.

111. In that regard, although accepted in paragraph 175 of the judgment under appeal, the argument that any other interpretation would make it very likely that the Commission would systematically prohibit all horizontal concentrations in an oligopolistic market cannot succeed. Apart from the fact that no such development has been established (see point 63 above), that argument is ultimately based on the imposition on the Commission of a higher standard of proof in order to establish the existence of a significant impediment to effective competition resulting from non-coordinated effects, for which there is no convincing justification (see points 46 to 65 above). It is therefore precisely in that context that the General Court’s failure to apply the standard of proof required, as noted in response to the first and second grounds of appeal, has consequences. For the same reasons, the Commission cannot be criticised, as the General Court does in paragraph 173 of the judgment under appeal, for having ‘considerably broaden[ed] the scope of Article 2(3) of Regulation No 139/2004’ or even for having conflated distinct legal concepts.

112. It follows that, in paragraphs 173 to 175 of the judgment under appeal, the General Court erred in law in holding that, if the Commission’s interpretation had been accepted, any undertaking in an oligopolistic market exerting competitive pressure could be classified as an ‘important competitive force’. The General Court also erred in concluding that the Commission’s interpretation would mean that classifying a party to the concentration as an ‘important competitive force’ in an oligopolistic market would suffice as a basis for concluding that the concentration in question would give rise to a significant impediment to effective competition.

113. The second complaint in the second part of the third ground of appeal, therefore, must be upheld.

3. The third part of the third ground of appeal, alleging misinterpretation of the concept of ‘close competitors’ and a distortion of the decision at issue

114. The third part of the third ground of appeal comprises two complaints.

(a) The first complaint

115. By the first complaint in the third part of the third ground of appeal, the Commission complains that the General Court erred in holding, in paragraph 242 of the judgment under appeal, that it was required to demonstrate that the parties to the concentration were ‘particularly close competitors’. In doing so, the General Court relied, according to the Commission, on a standard of proof which is excessive and contrary to the Guidelines. It is not necessary for the parties to the concentration to be particularly close competitors in order to establish that the existence of close competition between them is a relevant factor in order to conclude that a significant impediment to effective competition was present. The fact that other competitors are also close, or even closer, cannot invalidate such a conclusion.

116. The General Court’s assessment concerning the degree of closeness of competition between the parties to the concentration forms part of its examination of the first theory of harm put forward by the Commission relating to non-coordinated effects on the retail market. As stated in paragraph 128 of the judgment under appeal, in that theory, the Commission relied on the important competitive constraint exerted by Three and O2, on the fact that they competed closely, on their market shares and on the incentives for the merged entity to increase prices, and on the ability of its competitors to compete. The Commission concluded from this, in recital 1226 of the decision at issue, that the concentration at issue was ‘likely to give rise to non-coordinated anticompetitive effects on the retail market’.

117. In paragraph 234 of the judgment under appeal, the General Court acknowledged that the concept of a ‘close competitor’ does not appear in Regulation No 139/2004 but only in the Guidelines. However, in paragraphs 235 and 241 of that judgment, it is stated, in essence, that the applicability of Article 2(3) of Regulation No 139/2004, read in the light of recital 25 of that regulation, requires the ‘elimination of important competitive constraints’ that the merging parties exerted upon each other, which constitutes the most direct unilateral effect of a concentration in an oligopolistic market. In paragraphs 242, 247 and 249 of that judgment, the General Court essentially inferred from this that the Commission had to demonstrate, with respect to an oligopolistic market in which all operators are, by definition, close to a greater or lesser extent, that the parties were ‘particularly close competitors’ rather than ‘close competitors’.

118. Finally, in paragraphs 249 and 250 of the judgment under appeal, the General Court upheld CK Telecoms’ arguments concerning the weak probative value of the analysis of the closeness of competition between Three and O2. The reason given by the General Court for that position was that Three and O2 were only relatively close competitors in some of the segments of a concentrated market comprising four mobile network operators. According to the General Court, that is insufficient in the light of the above requirements; if that were not the case, any concentration resulting in a reduction from four to three operators would as a matter of principle be prohibited.

119. In that regard, it should be recalled that when the Commission, in the decision at issue, assessed the criterion of closeness of competition between the parties to the concentration on the basis of a qualitative assessment of diversion ratios based on mobile number portability data ( ) it applied, inter alia, paragraph 26 of the Guidelines. According to that paragraph, such a criterion is only one of a number of relevant factors which may influence whether significant non-coordinated effects are likely to result from a merger. According to that provision, that likelihood must be assessed in the light of a number of factors, which taken separately are not necessarily decisive and need not all be present for that purpose. As confirmed by my examination of the second complaint in the third part of the third ground of appeal, set out in points 127 to 131 below, in accordance with that provision, that criterion of closeness of competition is only one of a number of factors assessed by the Commission in support of its first theory of harm. ( )

120. In addition, it is clear from paragraph 28 of the Guidelines that the closeness of competition is assessed by reference to the degree of substitutability between the merging parties’ products. According to that paragraph, on the one hand, products may be differentiated within a relevant market such that some products are closer substitutes than others and, on the other hand, the higher the degree of substitutability between those parties’ products, the more likely it is that the merging firms will raise prices significantly. ( ) As indicated in recital 444 of the decision at issue, paragraph 29 of the Guidelines provides that the degree of substitutability can be calculated on the basis of, inter alia, diversion ratios, ( ) as the Commission did in the present case.

121. It follows that the Guidelines start from the premiss that there are, admittedly, different degrees of closeness of competition between the parties to a concentration. However, it does not follow that, for the purposes of assessing the criterion of closeness of competition as a relevant factor in order to determine whether there is a significant impediment to effective competition, the relevant degree of proximity must, as required in paragraphs 242, 247 and 249 of the judgment under appeal, be that of ‘particularly close competitors’.

122. Consequently, the General Court was not entitled to criticise the Commission, albeit implicitly, for having disregarded, in the decision at issue, the criteria which the Commission had imposed on itself in paragraphs 26, 28 and 29 of the Guidelines. That appears to me to be even less possible since the criterion of closeness of competition is only one factor which must be taken into account together with other relevant factors in order to enable the Commission to conclude that the concentration at issue was likely to result in harmful non-coordinated effects and, therefore, to give rise to a significant impediment to effective competition. However, by taking into account that factor alone, without taking into consideration the other factors assessed by the Commission, the General Court could not conclude that there was no evidence of the existence of such an impediment.

123. Similarly, contrary to what is apparent from a combined reading of paragraphs 235, 241, 242, 245 and 247 of the judgment under appeal, the purported requirement for the competitive relationship of the parties to the concentration to be ‘particularly’ close is supported neither by the wording of recital 25 of Regulation No 139/2004, according to which Article 2(3) of that regulation requires the elimination of ‘important competitive constraints that the merging parties had exerted upon each other’, nor by the concept of a ‘significant impediment to effective competition’ as such.

124. As discussed in point 111 above, that purported requirement is ultimately based on the excessive standard of proof which the General Court imposed on the Commission in order to establish the existence of a significant impediment to effective competition resulting from non-coordinated effects, for which there is no convincing justification (see points 46 to 65 above). It is therefore in that context also that the General Court’s failure to apply the standard of proof required, as noted in response to the first and second grounds of appeal, has consequences. That is confirmed by the assessment in paragraph 249 of the judgment under appeal that the Commission’s finding that Three and O2 were ‘relatively close competitors’ in only some of the segments of a concentrated market comprising four mobile network operators cannot suffice to establish a significant impediment to effective competition; if that were not the case, any concentration resulting in a reduction from four to three operators would as a matter of principle be prohibited.

125. Accordingly, I consider that the General Court erred in law in holding, in paragraph 250 of the judgment under appeal, that the Commission’s analysis of the closeness of competition between Three and O2 was flawed.

126. The first complaint in the third part of the third ground of appeal must therefore be upheld.

(b) The second complaint

127. By the second complaint in the third part of the third ground of appeal, the Commission complains that the General Court distorted the decision at issue and erroneously concluded, inter alia, in paragraph 249 of the judgment under appeal, that in that decision the Commission started from the premiss that the closeness of competition between Three and O2 on the relevant market was, in itself, a sufficient basis for concluding that the concentration at issue would give rise to a significant impediment to effective competition. In that regard, the Commission submits that, as the General Court itself noted in paragraph 227 of the judgment under appeal, that was only one of the factors which led the Commission to find that that concentration would give rise to non-coordinated effects.

128. Paragraph 249 of the judgment under appeal states, in essence, that establishing the sole fact that Three and O2 are relatively close competitors in some of the segments of a concentrated market comprising four mobile network operators is not sufficient either to prove the elimination of the important competitive constraints which the parties to the concentration exerted upon each other nor does it establish a significant impediment to effective competition; if that were not the case, any concentration resulting in a reduction from four to three operators would as a matter of principle be prohibited.

129. It is true that, as the Commission argues, the decision at issue does not contain any ground or contextual element enabling it to be interpreted as asserting that the closeness of competition between Three and O2 was, in itself, a sufficient basis for concluding that the concentration at issue was likely to give rise to a significant impediment to effective competition. On the contrary, as recalled in points 119 to 121 above, it follows from a combined reading of recitals 313, 321, 444 and 463 of that decision that, in the context of its first theory of harm, the Commission applied the criteria provided for in paragraphs 26, 28 and 29 of the Guidelines, which set out a number of factors, including the closeness of competition determined on the basis of diversion ratios, for the purpose of establishing that the concentration at issue was likely to result in non-coordinated effects on the relevant market.

130. The fact remains that the General Court’s reasoning in paragraph 249 of the judgment under appeal is ambiguous and need not necessarily be understood as criticising the Commission for having itself considered, in the decision at issue, that such evidence was, in itself, sufficient. Such a reading of the decision at issue seems less possible still since, as the Commission correctly points out, the General Court recognised, in paragraph 227 of that judgment, that the closeness of the competitive relationship was only ‘[one] factor on which the Commission relied in finding that the concentration [at issue] would give rise to non-coordinated effects’. ( ) Rather than constituting a distortion of the content of that decision, that reasoning forms part of an assessment vitiated by a series of errors of law committed by the General Court, including that noted in points 124 and 115 above, in that it required too high a standard of proof, including in respect of each of the elements assessed by it in order to determine whether they were capable of demonstrating the existence of a significant impediment to effective competition.

131. To that extent, the second complaint overlaps with the first complaint in the third part of the third ground of appeal (points 115 to 115 above) and must be rejected in so far as it alleges that the General Court distorted the decision at issue.

4. The fourth part of the third ground of appeal, alleging infringement of the obligation to state reasons concerning any incompatibility of the Guidelines with Regulation No 139/2004

132. By the fourth part of the third ground of appeal, the Commission argues, in the alternative, that, since CK Telecoms had not challenged before the General Court the compatibility of the Guidelines with Article 2 of Regulation No 139/2004, the General Court could not examine that issue of its own motion.

133. In that regard, it is sufficient to note, on the one hand, that the first to third parts of this ground of appeal, raised as the principal argument, must essentially be upheld (see points 82 to 1271 above) and, on the other hand, that the General Court did not find in the judgment under appeal that those guidelines were incompatible with Article 2 of Regulation No 139/2004. It follows that it is not necessary to examine the fourth part of the third ground of appeal.

E. The fourth ground of appeal, alleging a distortion of the Commission’s arguments relating to its quantitative analysis and errors of law

1. The effectiveness of the fourth ground of appeal

134. By the first part of the fourth ground of appeal, the Commission submits, first, that the General Court distorted its arguments set out in the defence and rejoinder at first instance, in so far as the General Court found, in paragraph 273 of the judgment under appeal, that it was common ground between the parties that the possible price increase resulting from the concentration at issue was [confidential]%, even though that figure was contested by the Commission in the course of the proceedings. Second, the Commission complains that the General Court erred in law in that paragraph in concluding that that price increase was not significant because it was lower than the price increase used in previous cases relating to concentrations which the Commission authorised subject to conditions.

135. In the second part of the fourth ground of appeal, the Commission argues, in essence, that the General Court erred in requiring it, in paragraphs 277 to 279 of the judgment under appeal, to include in its UPP analysis the ‘standard’ efficiencies which, according to the General Court are specific to each concentration.

136. CK Telecoms’ line of argument that the present ground of appeal is ineffective cannot succeed.

137. In that regard, first, it should be recalled that, in paragraphs 255 to 259 of the judgment under appeal, the General Court rejected CK Telecoms’ line of argument that the UPP analysis had no probative value and cannot be used as corroborating evidence of a significant impediment to effective competition.

138. Second, even though, in paragraph 268 of that judgment, the General Court ruled that the UPP analysis was not decisive evidence, it nonetheless did not deny its probative value. Rather, it found that that analysis is not sufficient to demonstrate that the elimination of the important competitive constraints that the parties exerted upon each other would result in a significant increase in prices and, consequently, in a significant impediment to effective competition.

139. Third, in reaching its conclusion, set out in paragraph 282 of the judgment under appeal, that the Commission had not demonstrated with a sufficient degree of probability that prices would increase ‘significantly’, the General Court noted, in paragraph 273 of that judgment, that the possible price increase resulting from the concentration at issue was, ‘according to [CK Telecoms] – which is not contradicted on that point by the Commission’ – [confidential]%. That increase is lower than the price increases used in cases COMP/M.6992 – Hutchison 3G UK/Telefonica Ireland (‘the Irish case’) and COMP/M.7018 – Telefónica Deutschland/E-Plus (‘the German case’), that is to say 6.6% and 9.5% respectively, which did not prevent the Commission from authorising the concentrations concerned subject to certain conditions.

140. Fourth, in paragraphs 277 to 281 of the judgment under appeal, the General Court essentially criticised the Commission for failing to include in its UPP analysis the efficiencies generated by the concentration at issue, which nevertheless are an integral part of it. Consequently, according to the General Court, this was also the reason why the Commission had failed to establish the existence of a significant impediment to effective competition on account of a degradation of the quality of the network, on which its second theory of harm was, in part, based.

141. In the light of the foregoing, it is not possible to regard as ineffective the Commission’s arguments seeking to show (i) that it had disputed the exact percentage of the possible price increase resulting from the concentration at issue, (ii) that the General Court had made an incorrect comparison of the present case with other merger cases dealt with previously and, (iii) that the Commission was not required to include efficiencies such as those referred to in paragraphs 277 to 279 of the judgment under appeal in its UPP analysis. Each of those three complaints is capable of calling into question the validity in law of the conclusion reached by the General Court in paragraph 282 of the judgment under appeal.

142. It is therefore necessary to examine the substance of those complaints.

2. The first part of the fourth ground of appeal, alleging a distortion of the Commission’s arguments concerning the possible price increase resulting from the concentration at issue and an error of law on the part of the General Court in its assessment of the quantitative analysis

143. By the first complaint in the first part of the fourth ground of appeal, the Commission complains that the General Court distorted its arguments set out in paragraph 157 of the defence and paragraph 61 of the rejoinder at first instance by incorrectly finding, in paragraph 273 of the judgment under appeal, that it was common ground that the possible price increase resulting from the concentration at issue was [confidential]%, even though that figure was contested by the Commission in the course of the proceedings.

144. As noted in point 139 above, the General Court stated in paragraph 273 of the judgment under appeal that the Commission had not contested, in the course of the proceedings, CK Telecoms’ argument that the possible price increase resulting from the concentration at issue was [confidential]%.

145. However, it must be noted that, in paragraph 157 of the defence, the Commission had indeed contested that figure and had argued that it should be [confidential]%, which is confirmed by paragraphs 159 and 160 of the defence and by paragraph 61 of the rejoinder. In accordance with the case-law cited in point 99 above, it is therefore clear from the documents in the file that the General Court, in paragraph 273 of the judgment under appeal, not only distorted the Commission’s arguments set out in paragraph 157 of the defence, but also misapplied the rules governing the burden of proof and the taking of evidence in finding that the parties agreed on a relevant fact, that is to say a possible price increase of [confidential]%, even though the opposite was true. ( )

146. It is sufficient to point out, in response to the second complaint in the first part of the present ground of appeal, that, if only for that reason, the General Court was not entitled to criticise the Commission, in paragraph 273 of the judgment under appeal, for having failed to establish convincingly that the possible price increase resulting from the concentration at issue was not significant on the (implicit) ground that that increase was only [confidential]% lower than that used in the Irish case (6.6%) and much lower than that used in the German case (9.5%), cases in which the concentrations concerned had been authorised subject to conditions. Such an approach, based on an unproven fact, is contrary to the rules on the assessment of evidence and therefore erroneous in law.

147. In addition, in the absence of an explanation in the judgment under appeal as to the comparability of the situations at issue, the General Court was not entitled to base that conclusion on a comparison with those other cases, in which the parties to the concentration had offered commitments and succeeded in removing the Commission’s competitive concerns. Those cases were therefore not necessarily comparable to the present case, the specific circumstances of which led to the prohibition of the concentration at issue, inter alia, on the basis of the first theory of harm. Therefore, for that reason also, the General Court erred, in paragraph 273 of the judgment under appeal, in rejecting as unconvincing the evidence adduced by the Commission in support of that theory.

148. By contrast, I do not consider that that error also involves, as the Commission argues, an unlawful substitution by the General Court of the Commission’s complex economic assessment, in its UPP analysis, of the significance of the price increase. It is clear from paragraph 273 of the judgment under appeal that the General Court was not convinced by the Commission’s line of argument. Therefore, in reaching its conclusion, the General Court merely applied the rules relating to the taking of evidence and burden of proof and exercised its freedom to assess the evidence, without having carried out its own calculation of the significance of the price increase.

149. In the light of the considerations set out in points 145 to 147 above, the first part of the fourth ground of appeal must therefore be upheld.

3. The second part of the fourth ground of appeal, alleging an error of law in that the General Court required the Commission to include ‘standard’ efficiencies in its UPP analysis

150. By the second part of the fourth ground of appeal, the Commission complains that the General Court erred in holding, in paragraphs 277 to 279 of the judgment under appeal, that the Commission ought to have included in its UPP analysis the ‘standard’ efficiencies which, according to the General Court, are specific to each concentration.

151. The General Court indeed adopted a rather innovative approach in holding, in paragraph 277 of the judgment under appeal, that any concentration would lead to efficiencies, the extent of which would also depend on external competitive pressure. According to the General Court, those efficiencies stem in particular from the efforts to rationalise and integrate production and distribution processes by the merged entity, which may lead it to lower its prices. As is apparent from paragraphs 278 and 279 of that judgment, the General Court made a distinction between those efficiencies and the efficiencies set out in the Guidelines which must be established by the notifying party, and which were found not to exist by the Commission in the present case. ( ) The General Court stated that while those efficiencies had to be examined as part of the overall competitive appraisal of the concentration in order to establish their capacity to counteract its restrictive effects, the ‘standard’ efficiencies were specific to each concentration and were ‘merely a component of a quantitative model designed to establish whether a concentration is capable of producing such restrictive effects’. I infer from this that the General Court considered that the Commission was required to take into account ‘standard’ efficiencies systematically and of its own initiative in all cases.

152. That new category of so-called ‘standard’ efficiencies identified by the General Court, which it assumes are inherent in each horizontal concentration, corresponds to the category of ‘default’ efficiencies, which some authors, in particular economists, recommend recognising, in order to counterbalance the uncertainties resulting from a UPP analysis. ( ) Thus, it is proposed that such an analysis should include a default efficiency ‘credit’ of a certain percentage, for example 10%, representing the ‘default’ efficiencies, directly associated with the concentration, which are likely to counterbalance that percentage price increase estimated in the context of a UPP analysis. ( )

153. However, no such category of efficiencies in the area of EU merger control is recognised by Regulation No 139/2004, Regulation (EC) No 802/2004, ( ) or the Guidelines. In addition, the General Court failed to indicate the legal bases which might lead the Court of Justice to recognise the relevance of those efficiencies and establish a requirement for the Commission to take them into consideration outside the applicable regulatory framework without encroaching on its discretion in managing competition policy and merger control.

154. It is true that the Court has already held that the Commission was required to take into account specific pro-competitive aspects relating to an agreement, which are relied on by the parties, as part of its economic context, in order to determine whether those alleged pro-competitive aspects are capable of calling into question the finding that that agreement constitutes a restriction of competition ‘by object’ and in order to assess whether it is necessary instead to examine whether there is a restriction of competition ‘by effect’, pursuant to Article 101(1) TFEU. ( ) However, the Court has also clarified that such an approach did not involve the application of a ‘rule of reason’, as recognised in US competition law, which would require the Commission of its own motion to weigh all the pro-competitive and anticompetitive effects under paragraph 1 of that article alone, ( ) such a weighing exercise having to be carried out under paragraph 3 thereof. ( )

155. Similarly, there is no convincing reason to recognise, outside the regulatory framework applicable to merger control, a duty on the part of the Commission to include in its assessment of the existence of a significant impediment to effective competition, in particular arising from horizontal non-coordinated effects arising due to a concentration on an oligopolistic market, a default examination of efficiencies of the type required by the General Court in the present case. At most, it is the Commission’s task, in the exercise of its discretion in this area, particularly in the context of a possible revision of the Guidelines, to ascertain whether it is necessary to carry out such an analysis of its own initiative.

156. However, as EU law currently stands, recital 29 of Regulation No 139/2004 confines itself to referring to any substantiated and likely efficiencies put forward by the undertakings concerned which the Commission must take into account in order to determine the impact of a concentration on competition in the internal market, efficiencies to which the General Court refers in paragraph 279 of the judgment under appeal. Similarly, pursuant to Section 9 of Annex I to Regulation No 802/2004, it is incumbent on the undertaking concerned to provide a description of each of those claimed efficiencies, together with supporting documents. Finally, the relevant criteria for taking such efficiencies into account are referred to in paragraphs 76 to 88 of the Guidelines.

157. In those circumstances, I consider that the General Court erred in law in requiring the Commission, in paragraphs 277 to 279 of the judgment under appeal, to include in its UPP anal