Keywords

Summary



Keywords

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1. Actions for annulment ° Natural or legal persons ° Measures of direct and individual concern to them ° Decision on the compatibility of a concentration with the common market ° Recognized representatives of the workers of the undertakings concerned ° Remedy restricted, in principle and in the absence of exceptional circumstances, to review by the Community judicature of whether the Commission has respected their procedural rights

(EC Treaty, Art. 173, fourth para.; Council Regulation No 4064/89, Art. 18(4); Council Directive 77/187)

2. Competition ° Concentrations ° Examination by the Commission ° Obligations of the Commission to specified third parties ° Recognized representatives of the workers of the undertakings concerned ° Information on the existence of a concentration proposal notified ° Not required

(Council Regulation No 4064/89, Art. 18(4); Council Directive 77/187, Art. 6)

Summary

1. A Commission decision on the compatibility with the common market of a concentration, taken pursuant to Regulation No 4064/89, is of individual concern, within the meaning of the fourth paragraph of Article 173 of the Treaty, to the representatives, recognized in national law, of the employees of the undertakings in question, simply because that regulation ° which allows the Commission to take into consideration the social effects of the concentration if they are liable to affect adversely the social objectives referred to in Article 2 of the Treaty ° expressly mentions them among the third parties showing a sufficient interest to be heard by the Commission during the procedure for examination of the planned concentration, regardless of whether they have actually taken part in that procedure.

On the other hand, in principle and in the absence of exceptional circumstances, it is not of direct concern to them. Firstly, a decision authorizing a concentration, after an examination from the point of view of Community competition law, even if it makes that concentration subject to the sale by one of the undertakings in question of part of its activities to a third undertaking, does not in itself have any effect on the own rights of the representatives of the employees of the undertakings concerned, which, as provided for by the relevant provisions of Community law, will be applicable in accordance with the provisions of national law on the occasion of the transfer of the undertaking as a result of the concentration. Secondly, it does not directly affect the interests of the workers concerned, since it is only indirectly that the employees' interests may be affected by a transfer of part of their undertaking, a transfer which, as follows from Directive 77/187 on the safeguarding of employees' rights in the event of transfers of undertakings, cannot itself bring about a change in the employment relationship as regulated by the contract of employment and collective agreements. If measures which affect the interests of the workers are taken following the concentration, they will be taken by the undertakings concerned and their compatibility with social legislation, both Community and national, will be subject to review by the national courts.

However, since the representatives of the employees have been given procedural rights by Regulation No 4064/89 and those rights can in principle be given effect to by the Community judicature only at the stage of review of the lawfulness of the Commission' s final decision, those representatives must be afforded a remedy limited to the defence of their procedural rights, and must therefore be recognized as entitled to bring proceedings against that decision for the specific purpose of having the Community judicature examine whether or not the procedural guarantees which they were entitled to assert during the administrative procedure under Article 18 of that regulation have been infringed. When that remedy is exercised, only a substantial breach of the procedural rights of the employees' representatives, as opposed to a plea based on substantive breach of the rules laid down in Regulation No 4064/89, may lead to annulment of the Commission' s decision.

2. Although under Article 18(4) of Regulation No 4064/89 the recognized representatives of the workers of the undertakings concerned by a concentration have the right to submit observations, upon application by them, to the Commission, the Commission is not obliged to inform them of the existence of a concentration proposal notified to it by one of the undertakings concerned.

Under Article 6 of Directive 77/187 on the safeguarding of employees' rights in the event of transfers of undertakings, it is the undertakings in question which are obliged to give information to the employees' representatives, and it is for the national authorities to ensure that that obligation is complied with.