Appeal brought on 7 August 2020 by European Commission against the judgment of the General Court (First Chamber, Extended Composition) delivered on 28 May 2020 in Case T-399/16, CK Telecoms UK Investments Ltd v Commission

(Case C-376/20 P)

(2020/C 390/30)

Language of the case: English

Parties

Appellant: European Commission (represented by: G. Conte, C. Urraca Caviedes, J. Szczodrowski, M. Farley, Agents)

Other parties to the proceedings: CK Telecoms UK Investments Ltd, United Kingdom of Great Britain and Northern Ireland, EE Ltd

Form of order sought

The appellant claims that the Court should:

— set aside the judgment of the General Court of 28 May 2020 in Case T-399/16, CK Telecoms UK Investments Ltd v Commission;

— refer the proceedings back to the General Court for reconsideration;

— order the applicant at first instance to pay the costs of the appeal; and

— reserve the costs of the proceedings at first instance.

Pleas in law and main arguments

First ground of appeal: The Judgment applies a standard of proof for the existence of a SIEC (‘strong probability’) that is stricter than the test set out in the case law and in the EUMR (1), which requires the Commission to identify the ‘most likely’ outcome.

Second ground of appeal: By requiring that, in order to find a SIEC, the Commission should prove that a concentration confers on the merged entity the power to determine, by itself, the parameters of competition, the General Court applies a legal test that is not supported by the EUMR and undermines the very purpose of the 2004 reform. Moreover, the General Court errs in law in setting out a two-criteria test for establishing a SIEC based on non-coordinated effects.

Third ground of appeal: By requiring that an ‘important competitive force’ (‘ICF’) needs to stand out from its competitors in terms of impact on competition and also that merging parties need to be ‘particularly close competitors’, the General Court exceeds the limits of its judicial review, disregards the value of guidelines and distorts the content of the contested decision (2); or, alternatively, violates the principle of judicial review, fails to provide adequate reasoning and infringes Article 2 EUMR.

Fourth ground of appeal: By considering that the predicted price increase was not significant and by stating that the Commission should have taken into account ‘standard efficiencies’, the General Court departs from the EUMR, exceeds the limits of its judicial review, fails to provide adequate reasoning and distorts the evidence.

Fifth ground of appeal: By limiting the review to only some of the findings in the contested decision and by examining those findings in isolation, without assessing all the evidence together, the General Court distorts the contested decision, exceeds the limits of its judicial review, infringes the applicable rules on evidence, misapplies the legal test and fails to provide adequate reasoning.

Sixth ground of appeal: The General Court distorts the contested decision by considering that it does not examine degradation of the quality of the merged entity’s network as part of the second theory of harm. The General Court also breaches its duty to state reasons when concluding that the Commission erred in law in classifying the effect of increased transparency on overall network investments as a noncoordinated effect.

(1) Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) (OJ 2004 L 24, p. 1).

(2) Commission Decision C(2016) 2796 final of 11 May 2016 declaring a concentration incompatible with the internal market (Case M.7612 — Hutchison 3G UK/Telefónica UK) (OJ 2016 C 357, p. 15).