JUDGMENT OF THE GENERAL COURT (Seventh Chamber, Extended Composition)

23 February 2022 ( *1 )

(Non-contractual liability – Competition – Markets for international express small package delivery services in the EEA – Concentration – Decision declaring the concentration incompatible with the internal market – Annulment of the decision by a judgment of the Court – Rights of the defence – Sufficiently serious breach of a rule of law intended to confer rights on individuals – Causal link)

In Case T‑834/17,

United Parcel Service, Inc., established in Atlanta, Georgia (United States), represented by A. Ryan, Solicitor, F. Hoseinian, W. Knibbeler, A. Pliego Selie and F. Roscam Abbing, lawyers,

applicant,

v

European Commission, represented by N. Khan, P. Berghe, M. Farley and R. Leupold Henning, acting as Agents,

defendant,

APPLICATION under Article 268 TFEU for compensation for the damage allegedly suffered by the applicant as a result of the unlawfulness of Commission Decision C(2013) 431 of 30 January 2013 declaring a concentration incompatible with the internal market and the functioning of the EEA Agreement (Case COMP/M.6570 – UPS/TNT Express),

THE GENERAL COURT (Seventh Chamber, Extended Composition),

composed of S. Papasavvas, President, R. da Silva Passos, I. Reine, L. Truchot and M. Sampol Pucurull (Rapporteur), Judges,

Registrar: E. Artemiou, Administrator,

having regard to the written part of the procedure and further to the hearing on 28 October 2020,

gives the following

Judgment

I. Background to the dispute

1 In the European Economic Area (EEA), the applicant, United Parcel Service, Inc. (‘UPS’ or ‘the applicant’) and TNT Express NV (‘TNT’) are two companies present on the markets for international express small package delivery services.

2 On 26 June 2012, the European Commission published a notice of prior notification of a concentration (Case COMP/M.6570 – UPS/TNT Express) (OJ 2012 C 186, p. 9), pursuant to Article 4 of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (OJ 2004 L 24, p. 1), as implemented by Commission Regulation (EC) No 802/2004 of 21 April 2004 (OJ 2004 L 133, p. 1).

3 On 11 January 2013, the Commission informed UPS that it intended to prohibit the proposed concentration between UPS and TNT.

4 On 14 January 2013, UPS published that information by means of a press release.

5 On 18 January 2013, the Advisory Committee provided for in Article 19 of Regulation No 139/2004 issued a favourable opinion on the Commission’s draft decision declaring the concentration between UPS and TNT incompatible.

6 On 30 January 2013, the Commission adopted Decision C(2013) 431 declaring a concentration incompatible with the internal market and the functioning of the EEA Agreement (Case COMP/M.6570 – UPS/TNT Express (‘the decision at issue’). The Commission considered that the concentration between UPS and TNT would be a significant impediment to effective competition on the markets for the services in question in 15 Member States, namely in Bulgaria, the Czech Republic, Denmark, Estonia, Latvia, Lithuania, Hungary, Malta, the Netherlands, Poland, Romania, Slovenia, Slovakia, Finland and Sweden.

7 By press release of the same date, UPS announced that it would not go ahead with the proposed concentration.

8 On 5 April 2013, UPS brought an action before the General Court for annulment of the decision at issue, registered as Case T‑194/13, and an application for an expedited procedure, which was dismissed by the Court.

9 On 7 April 2015, FedEx Corp. announced an offer to purchase TNT.

10 On 4 July 2015, the Commission published a notice of prior notification of a concentration (Case M.7630 – FedEx/TNT Express) (OJ 2015 C 220, p. 15), concerning the transaction by which FedEx was to acquire TNT.

11 On 8 January 2016, the Commission adopted the decision declaring a concentration compatible with the internal market and the functioning of the EEA Agreement (Case M.7630 – FedEx/TNT Express), a summary of which was published in the Official Journal of the European Union (OJ 2016 C 450, p. 12), relating to the transaction between FedEx and TNT.

12 By judgment of 7 March 2017, United Parcel Service v Commission (T‑194/13, EU:T:2017:144), the Court annulled the decision at issue.

13 On 16 May 2017, the Commission brought an appeal against the judgment of 7 March 2017, United Parcel Service v Commission (T‑194/13, EU:T:2017:144), which the Court of Justice dismissed by judgment of 16 January 2019, Commission v United Parcel Service (C‑265/17 P, EU:C:2019:23).

II. Procedure and forms of order sought

14 By application lodged at the Court Registry on 29 December 2017, UPS brought the present action.

15 By document lodged at the Court Registry on 29 January 2018, the Commission requested that the General Court stay the proceedings pending a ruling on the appeal in Case C‑265/17 P or, in the alternative, adopt a measure of organisation of procedure to the effect that the Court would determine, first, whether the conditions for the European Union to incur liability under Article 340 TFEU were satisfied, save as to the existence of damage, and, accordingly, second, whether any submissions needed to be made by the parties on the quantum of the alleged damage until further order.

16 By decision of 6 February 2018, the President of the Chamber decided to stay the proceedings pending the delivery of the decision in Case C‑265/17 P. By contrast, the Court did not grant the Commission’s request for measures of organisation of procedure.

17 By document lodged at the Court Registry on 25 January 2019, the Commission again requested the adoption of a measure of organisation of procedure to the effect that the Court would determine, as a preliminary matter, whether the conditions for the European Union to incur liability under Article 340 TFEU were satisfied, to the exclusion of any issue concerning the existence of any damage alleged by UPS, therefore relieving the parties from having to address the quantum of the alleged damage until further order.

18 By document lodged at the Court Registry on 14 February 2019, UPS opposed that request, and the Court did not grant the Commission’s request for measures of organisation of procedure.

19 Following a change in the composition of the Court, by decision of 17 October 2019 the President of the General Court, pursuant to Article 27(3) of the Rules of Procedure of the General Court, reallocated the case to a new Judge-Rapporteur, assigned to the Seventh Chamber.

20 Acting on a proposal from the Seventh Chamber, the Court decided, pursuant to Article 28 of the Rules of Procedure, to refer the case to a Chamber sitting in extended composition.

21 On a proposal from the Judge-Rapporteur, the Court (Seventh Chamber, Extended Composition) decided to open the oral part of the procedure and, by way of measures of organisation of procedure provided for in Article 89 of the Rules of Procedure, put written questions to the parties, which replied within the prescribed period. The Court also put a question to the parties in writing, inviting them to answer that question at the hearing.

22 UPS claims that the Court should: – award it compensation in the amount of EUR 1.742 thousand million and applicable interest; – award it compensation for the taxes that will be imposed on the damages obtained, on the basis of the tax rate applicable on the day of the Court’s decision; and – order the Commission to pay the costs.

23 The Commission contends that the Court should: – dismiss the action; – order the applicant to pay the costs.

III. Law

A. Admissibility of certain pleas in law, arguments and evidence

24 The Commission raises the objection that UPS’ pleadings are confused and do not comply with the requirements of either Article 76(d) or Article 85 of the Rules of Procedure, and that certain arguments and evidence submitted in support of those pleadings should therefore be declared inadmissible.

1. The alleged confused nature of UPS’ line of argument

25 The Commission criticises UPS for having set out its arguments in a scattered way, without following the structure of the pleas in law in the application. The action relies on three pleas in law which correspond to each of the conditions for the European Union to incur non-contractual liability. However, according to the Commission, UPS advanced several arguments outside the plea to which their substance relates. Thus, in the application, UPS put forward arguments relating to illegality in the sections addressing the causal link. In the reply, UPS dealt with the two together, and, in the section addressing damage, raised arguments relating to the other two conditions for non-contractual liability on the part of the European Union. The Commission submits that the Court should not group those arguments together since, formally, they do not correspond to the stated plea in respect of which they are relied upon.

26 In the present case, it is true that, in the application, UPS set out part of its argument relating to the alleged illegalities under pleas relating to the other conditions for non-contractual liability on the part of the European Union, in particular the plea relating to the causal link. While that incoherence may contribute to making the action confused, it cannot render the action inadmissible, even in part, if the essential matters of law and fact on which the form of order sought is based are set out clearly and precisely in summary form, in accordance with Article 21 of the Statute of the Court of Justice of the European Union and Article 76(d) of the Rules of Procedure, thus enabling the defendant to safeguard its rights and the General Court to decide the case. In order to satisfy those requirements, an application seeking, as in the present case, compensation for damage allegedly caused by EU institutions must set out the evidence from which can be identified both the conduct of which the applicant accuses those institutions and the reasons for which the applicant considers that there is a causal link between that conduct and the damage it claims to have suffered (see judgment of 14 December 2005, FIAMM and FIAMM Technologies v Council and Commission, T‑69/00, EU:T:2005:449, paragraph 68 and the case-law cited).

27 Although the organisation of certain legal and factual arguments put forward by the applicant lacks rigour, the fact remains that the Court, as well as the Commission, is in a position to identify the matters of fact and of law on which the form of order sought by the applicant is based. Moreover, the Commission does not rely on any specific rule in support of its assertion that the Court cannot group together, according to their substance, arguments which are formally presented in a fragmentary way. In any event, such an assertion is difficult to reconcile with the fact that, in examining the pleas in the action, the Court is in no way required, in its reasoning, to follow the order in which those pleas were set out (judgment of 25 March 2010, Sviluppo Italia Basilicata v Commission, C‑414/08 P, EU:C:2010:165, paragraph 57). The Court may, looking to the substance of the line of argument, reclassify it (see, to that effect, judgments of 19 November 1998, Parliament v Gaspari, C‑316/97 P, EU:C:1998:558, paragraph 21, and of 28 July 2011, Mediaset v Commission, C‑403/10 P, not published, EU:C:2011:533, paragraphs 92 and 93). It may therefore also, looking to the substance of the line of argument, examine it in an order which differs from that in which it was presented.

28 In those circumstances, rejecting part of the applicant’s line of argument on the sole ground that its substance does not correspond exactly to the heading of the section of the pleading in which that argument is set out would be excessively formalistic and could be an obstacle to the exercise of the right to a judicial remedy guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

29 The Commission’s plea of inadmissibility based on the confused nature of the action is unfounded and must be rejected.

2. The alleged infringement of Article 76(d) of the Rules of Procedure

30 The Commission raises the objection that UPS’ pleadings do not comply with Article 76(d) of the Rules of Procedure, thus rendering certain arguments and evidence inadmissible.

31 In that regard, it should be borne in mind that, under Article 21 of the Statute of the Court of Justice of the European Union, applicable to the General Court by virtue of the first paragraph of Article 53 thereof, and Article 76(d) of the Rules of Procedure of the General Court, each application is required to state the subject matter of the proceedings and a summary of the pleas in law on which the application is based.

32 In order to guarantee legal certainty and the sound administration of justice, that summary of the pleas in law of the applicant must be sufficiently clear and precise to enable the defendant to prepare its defence and the competent court to rule on the action (judgment of 11 September 2014, MasterCard and Others v Commission, C‑382/12 P, EU:C:2014:2201, paragraph 41).

33 Thus, in particular, it is necessary, for an action before the General Court to be admissible, that the basic matters of law and fact relied on be indicated, at least in summary form, coherently and intelligibly in the application itself. Whilst the body of the application may certainly be supported and supplemented on specific points by references to extracts from documents annexed thereto, a general reference to other documents, even those annexed to the application, cannot make up for the absence of the essential arguments in law which, in accordance with the abovementioned provisions, must appear in the application (judgment of 11 September 2014, MasterCard and Others v Commission, C‑382/12 P, EU:C:2014:2201, paragraph 40).

34 It is not for the Court to seek and identify in the annexes the pleas on which it may consider the action to be based, since the annexes have a purely evidential and instrumental function (judgments of 17 September 2007, Microsoft v Commission, T‑201/04, EU:T:2007:289, paragraph 94, and of 9 March 2015, Deutsche Börse v Commission, T‑175/12, not published, EU:T:2015:148, paragraph 354). Similar requirements are called for where a submission is made in support of a plea in law raised before the General Court (judgments of 11 September 2014, MasterCard and Others v Commission, C‑382/12 P, EU:C:2014:2201, paragraph 41, and of 16 September 2020, BP v FRA, C‑669/19 P, not published, EU:C:2020:713, paragraph 54).

(a) Admissibility of UPS’ argument concerning the infringement of procedural rights

35 The Commission submits that the argument by which UPS claims that its procedural rights were infringed on the ground that the efficiencies assessment criteria were not communicated to it before the decision at issue was adopted is inadmissible. According to the Commission, UPS confined itself, in paragraph 42 of the application, to making general and abstract criticisms of the decision at issue and of certain measures prior to that decision. Since the passages at issue were not identified precisely, that line of argument does not comply with the requirements of Article 76(d) of the Rules of Procedure.

36 It must be observed, however, that it is apparent from reading paragraph 42 of the application that UPS criticises the Commission, in essence, for not having seriously analysed the verifiability of the claimed efficiencies or set out in advance the criteria according to which those efficiencies would be assessed. UPS thus complains of a deficiency in the Commission’s analysis and a lack of information on the subject matter and the standard of proof required. Therefore, UPS cannot be criticised for having failed to identify precisely in the application, among the measures adopted by the Commission, the particulars which UPS alleges were lacking.

37 Furthermore, it should be noted that paragraph 42 of the application refers to certain passages of the Statement of Objections and of the decision at issue. UPS thus identified precisely the particulars which it considered relevant in order to compare them with each other and to demonstrate that it was only at the stage of the decision at issue that the Commission disclosed its efficiencies analysis.

38 It follows that the pleas of inadmissibility raised by the Commission are unfounded and must therefore be rejected.

(b) Admissibility of UPS’ argument concerning the error of assessment as regards the effects of the concentration on prices

(1) Paragraphs 34 to 37 of the application

39 The Commission contends that UPS’ argument relating to the analysis of the effects of the concentration on prices, set out in paragraphs 34 to 37 of the application, is so laconic that it does not meet the requirements of Article 76(d) of the Rules of Procedure. According to the Commission, the application does not state the reasons why UPS considers that the econometric model used by the Commission was flawed.

40 However, it should be observed that, in paragraphs 34 to 37 of the application, UPS claims that the price concentration analysis is vitiated by serious errors. It is clear from reading those paragraphs and the application taken as a whole that UPS submits that the Commission departed significantly from accepted econometric practice by using, at the estimation stage, a different type of concentration variable from that used at the prediction stage and relies, as evidence, on the reports of two experts (Annexes A.8 and A.9 to the application). Although paragraphs 34 to 37 of the application are concisely worded, they summarise, in clear and precise terms, the substance of the technical criticisms levelled against the methodological choices made by the Commission. That summary is supported by the reference to the reports of those experts (Annexes A.8 and A.9 to the application), which contain extensive explanations of the technical errors thus alleged.

41 It follows from the foregoing that paragraphs 34 to 37 of the application satisfy the requirements of Article 76(d) of the Rules of Procedure. Consequently, the plea of inadmissibility raised by the Commission must be rejected as unfounded.

(2) The reference to Annex A.12 to the application

42 The Commission submits that UPS, in paragraph 34 of the application, referred to Annex A.12 to that application, which consists of a pleading in the case which gave rise to the judgment of 7 March 2017, United Parcel Service v Commission (T‑194/13, EU:T:2017:144), without identifying the passages which it specifically intended to rely on. Consequently, according to the Commission, that failure to comply with Article 76(d) of the Rules of Procedure means that that document is inadmissible.

43 However, by referring, in paragraph 34 of the application, to a document (Annex A.12 to the application) produced in the case which gave rise to the judgment of 7 March 2017, United Parcel Service v Commission (T‑194/13, EU:T:2017:144), UPS did not seek to remedy any deficiency in the statement in paragraphs 34 to 37 of the application by a general reference to reading that document. On the contrary, UPS thus emphasised that its criticisms of the econometric model used had already been put forward in that case. Annex A.12 consists of UPS’ observations, dated 8 June 2016, on the Commission’s answers of 26 April 2016 to the questions put by the Court in that case. In those observations, UPS had criticised the use at the prediction stage of a different model from that used at the estimation stage. UPS claimed that the Commission had thus acted in an unconventional and arbitrary way. That line of argument, which, as is apparent from the documents produced in the present case, had also been developed by UPS in the appeal proceedings in the case which gave rise to the judgment of 16 January 2019, Commission v United Parcel Service (C‑265/17 P, EU:C:2019:23), is, in essence, identical to that set out in paragraphs 34 to 37 of the application.

44 It is apparent from those contextual elements that UPS thus reiterated the complaints raised in the case that gave rise to the judgment of 7 March 2017, United Parcel Service v Commission (T‑194/13, EU:T:2017:144), concerning the validity of the econometric model used in support of the decision at issue and that those elements contain a sufficiently clear and precise statement of the argument being made. Accordingly, the Commission cannot claim that it was not in a position to understand the content thereof or to prepare its defence. The plea of inadmissibility raised by the Commission must therefore be rejected.

(3) The reference to Annexes A.8 and A.9 to the application and Annexes C.1 and C.2 to the reply

45 The Commission submits that UPS merely made a general reference to reading certain annexes instead of setting out its argument clearly and precisely in its written pleadings. In response to the written questions put by the Court, the Commission contends, in the first place, that it disputed, in paragraph 22 of the defence, the admissibility of Annexes A.8 and A.9 to the application. The reasons why UPS considers that the econometric model used is incorrect should be included in the application itself, in accordance with Article 76(d) of the Rules of Procedure. The explanations provided in paragraph 36 of the application are insufficient in that regard. The Commission submits that a general reference to Annexes A.8 and A.9 to the application cannot remedy that deficiency by leaving it to guess the arguments which UPS wishes to put forward. The Commission states that it drew attention to that point in the rejoinder. In the second place, the Commission submits that UPS could not, at the stage of the reply, remedy those deficiencies by identifying with greater precision the relevant passages of Annexes A.8 and A.9 to the application and Annexes C.1 and C.2 to the reply.

46 However, it should be noted that, in paragraphs 24 to 29 of the defence, the Commission contested the content of those expert reports in detail. This shows that the Commission was in a position to defend its interests and that it did not, moreover, consider it necessary, at the stage of the defence, to produce in turn one or more expert reports in order to contradict those of UPS and thus to provide clarifications to the Court as to the technical aspects of the econometric model used.

47 In paragraphs 25 to 41 of the rejoinder, the Commission responded extensively to UPS’ arguments set out in paragraphs 45 to 49 of the reply and substantiated by the two reports of those experts (Annexes A.8 and A.9 to the application), as well as their additional opinions (Annexes C.1 and C.2 to the reply). The Commission’s claim that the reference to Annexes C.1 and C.2 to the reply is insufficiently precise is directly contradicted by the fact that the Commission identified, in footnote 32 to the rejoinder, the passages from those annexes specifically relied on by UPS in the reply. In order to refute the claims concerning the validity of its model, the Commission produced, as annexes to the rejoinder, two reports of an expert (Annexes D.5 and D.6 to the rejoinder), the admissibility of which is examined below in the light of Article 85(1) of the Rules of Procedure.

48 In those circumstances, the Commission cannot contend that it was not in a position to prepare its defence. UPS thus did not infringe Article 76(d) of the Rules of Procedure by referring, in its pleadings, to Annexes A.8 and A.9 to the application and to Annexes C.1 and C.2 to the reply in order to substantiate the technical aspects of its criticisms directed against the econometric model used by the Commission. Since the plea of inadmissibility raised by the Commission on that point is unfounded, it must be rejected.

(4) Paragraph 84 of the application

49 The Commission submits that the line of argument by which UPS, in paragraph 84 of the application, criticises the use of FedEx’s market coverage data for 2012 instead of those for 2015 is inadmissible in the light of Article 76(d) of the Rules of Procedure. It contends that that line of argument does not appear in the application, but in the pleadings lodged in the case which gave rise to the judgment of 7 March 2017, United Parcel Service v Commission (T‑194/13, EU:T:2017:144), without indicating precisely the passages of those pleadings on which UPS seeks to rely.

50 However, it must be stated that, in paragraph 84 of the application, UPS clearly and precisely criticised the Commission for having used data concerning FedEx’s situation in 2012 in its analysis of the effects of the concentration on prices, even though it was in possession of FedEx’s projections for 2015.

51 In those circumstances, it cannot be held that UPS sought to remedy a lack of precision in the application by means of a general reference to the pleadings lodged in the case that gave rise to the judgment of 7 March 2017, United Parcel Service v Commission (T‑194/13, EU:T:2017:144). Not only was UPS’ argument set out intelligibly, it was also known to the Commission from the proceedings in that case. It should also be noted that the Commission itself referred to a reading of its pleadings in that case, in response to UPS’ arguments. The Commission cannot therefore contend that it was not in a position to prepare its defence. In view of the identity of the parties and of the legal basis, namely the unlawful acts alleged against the Commission, between the action for annulment and the present action for damages, it is appropriate to declare admissible the references made in the arguments in the application, which are themselves admissible, to the account of the pleas put forward in support of the action for annulment and produced as annexes to the application in the present case (see, by analogy, judgment of 11 July 2007, Schneider Electric v Commission, T‑351/03, EU:T:2007:212, paragraph 96). The plea of inadmissibility raised by the Commission must therefore be rejected.

(c) Admissibility of UPS’ argument relating to the error of assessment as regards the efficiencies

(1) Paragraph 46 of the application

52 The Commission submits that the argument in paragraph 46 of the application by which UPS claims, first, that the evidence produced during the administrative procedure excluded an incompatibility decision, second, that the Commission accepted the synergies in principle and, third, that if the Commission had applied to the efficiencies the approach subsequently followed in the control of the concentration between FedEx and TNT, it would have had to accept a much higher proportion of the synergies claimed, is inadmissible because it is contrary to Article 76(d) of the Rules of Procedure. The Commission submits that those claims are insufficiently substantiated and states that it has already refuted them in the case which gave rise to the judgment of 7 March 2017, United Parcel Service v Commission (T‑194/13, EU:T:2017:144).

53 It should be noted, however, that those criticisms made by the Commission relate more to the question whether UPS’ claims in paragraph 46 of the application concerning the efficiencies analysis are sufficiently substantiated to satisfy the Court than to the question whether the application contains the summary of the pleas in law required by Article 76(d) of the Rules of Procedure.

54 In any event, it must be stated that paragraph 46 of the application is drafted in sufficiently clear and precise terms to enable the defendant to prepare its defence and the Court to rule on the action. The Commission thus responded exhaustively to UPS’ argument in paragraphs 55 to 97 of the defence. The Commission’s submission is therefore unfounded.

(2) The reference to Annex C.6 to the reply

55 The Commission contends that, in paragraph 82 of the reply, UPS refers to extracts from the concentration notification form attached to Annex C.6 to the reply without identifying precisely the relevant passages of that annex on which it relies. According to the Commission, such a reference is contrary to Article 76(d) of the Rules of Procedure.

56 However, it must be noted that, in paragraphs 41 to 46 of the application, UPS set out, admittedly in summary form, yet clearly and precisely, the line of argument by which it takes issue with the Commission for not disclosing during the administrative procedure the criteria which it intended to apply in order to evaluate the claimed efficiencies. In particular, in paragraph 44 of the application, UPS claimed, first, that the Commission was required, before adopting its decision, to set out its objections to the verifiability of claimed efficiencies and to give the parties which have notified a concentration a meaningful opportunity to comment in that regard. UPS maintained, second, that the file showed that it had provided significant evidence supporting its efficiency claims as early as the notification through the Form CO. Furthermore, in paragraph 82 of the reply, UPS expressly referred to the relevant section of the Form CO and, in particular, to paragraph 96 thereof.

57 That statement of complaints by UPS meets the requirements of clarity and precision laid down in Article 76(d) of the Rules of Procedure. In those circumstances, the Commission cannot reasonably contend that it was not in a position to prepare its defence, without prejudice to the question whether the production of Annex C.6 to the reply at the stage of lodging the reply was out of time and, consequently, inadmissible, which will be examined below in the light of Article 85 of the Rules of Procedure.

58 It follows that the Commission’s plea of inadmissibility must be rejected.

(3) The reference to Annexes C.7 and C.37 to the reply

59 The Commission contends that UPS, in breach of Article 76(d) of the Rules of Procedure, referred generally to its statement of 4 July 2019 relating to synergies (Annex C.7 to the reply) in paragraphs 90, 92 and 107 of the reply, without specifying the relevant passages on which it relied. It advances the same argument against the reference made in paragraphs 106 and 108 to 110 of the reply, allegedly with insufficient precision, to the second expert report provided by FTI Consulting in order to evaluate three expert reports produced by the Commission as annexes to its defence (‘the second FTI report’) (Annex C.37 to the reply).

60 However, it must be observed that paragraphs 90 to 98 of the reply contain a detailed and comprehensive account of the arguments by which UPS contests the first expert report issued by Oxera in order to assess the synergies which UPS expected to derive from the acquisition of TNT (‘the first Oxera report’) (Annex B.7 to the defence), which was submitted by the Commission at the stage of the defence. The various technical aspects of UPS’ line of argument are supported and supplemented by Annex C.7 to the reply, which sets out the methods used by UPS to assess efficiencies. Contrary to the Commission’s contention, UPS did not circumvent its obligation to set out its arguments in summary form, yet clearly and precisely, by making a general and imprecise reference to Annex C.7 to the reply or by diverting that document from its purely evidential and instrumental function. The Commission cannot therefore successfully contend that UPS infringed Article 76(d) of the Rules of Procedure.

61 As regards the reference to the second FTI report (Annex C.37 to the reply), it should also be noted that paragraphs 108 to 110 of the reply contain a clear and precise summary of the argument by which UPS contests the two expert reports produced by the Commission (first Oxera report, in Annex B.7 to the defence, and first Schoutens report, in Annex B.39 to the defence). For reasons analogous to those set out above with regard to the reference to Annex C.7 to the reply, the Commission’s allegation of infringement of Article 76(d) of the Rules of Procedure is unfounded.

62 In the light of all the foregoing considerations, the Commission’s complaints alleging infringement of Article 76(d) of the Rules of Procedure are unfounded and must therefore be rejected.

3. The alleged infringement of Article 85 of the Rules of Procedure

63 The Commission raises the objection that a number of items of evidence submitted belatedly by UPS are inadmissible, which UPS disputes, objecting in turn that certain evidence submitted belatedly by the Commission is inadmissible.

64 In order to rule on those complaints, it should be borne in mind that, in accordance with Article 76(f) of the Rules of Procedure, any application is to contain, where appropriate, any evidence produced or offered. Under Article 81(1) of those rules, the defence must contain the pleas in law and arguments relied on and, where appropriate, the evidence produced or offered.

65 Article 85(1) of the Rules of Procedure provides that evidence produced or offered is to be submitted in the first exchange of pleadings. Article 85(2) of those rules adds that in reply or rejoinder a party may produce or offer further evidence in support of its arguments, provided that the delay in the submission of such evidence is justified.

66 Although, in accordance with the time-bar rule laid down in Article 85(1) of the Rules of Procedure, the parties must state the reasons for the delay in submitting or offering new evidence, the Courts of the European Union have jurisdiction to review the merits of the reasons for the delay in submitting or offering that evidence and, depending on the case, the content of that evidence and also, if its belated production is not justified to the requisite legal standard or substantiated, jurisdiction to reject it. The belated submission or offer of evidence by a party may be justified, in particular, by the fact that that party did not previously have the evidence in question at its disposal, or if the belated production of evidence by the opposing party justifies the file being supplemented, in such a way as to ensure observance of the inter partes principle (judgment of 16 September 2020, BP v FRA, C‑669/19 P, not published, EU:C:2020:713, paragraph 41).

(a) Admissibility of Annexes C.6, C.7 and C.37 to the reply

67 The Commission contends that UPS produced Annexes C.6, C.7 and C.37 to the reply with the sole aim of remedying deficiencies in the application. According to the Commission, that belated and unjustified production should render those annexes inadmissible pursuant to Article 85 of the Rules of Procedure.

68 However, as has already been stated, it is apparent from paragraph 82 of the reply that Annex C.6 to the reply is produced in order to refute the Commission’s argument, in paragraph 47 of the defence, that UPS did not address the issue of efficiencies in the Form CO. Annex C.7 to the reply is intended to refute the first Oxera report (Annex B.7 to the defence) produced by the Commission. The second FTI report (Annex C.37 to the reply) is intended to invalidate two other expert reports produced by the Commission (the first Oxera report, in Annex B.7 to the defence, and the first Schoutens report, in Annex B.39 to the defence).

69 Evidence in rebuttal and the amplification of the offers of evidence submitted in response to evidence in rebuttal from the opposite party in the defence are not covered by the time-bar rule laid down in Article 85(1) of the Rules of Procedure (judgment of 17 December 1998, Baustahlgewebe v Commission, C‑185/95 P, EU:C:1998:608, paragraph 72, and order of 21 May 2019, Le Pen v Parliament, C‑525/18 P, not published, EU:C:2019:435, paragraph 48).

70 Consequently, Annexes C.6, C.7 and C.37 cannot be held to be inadmissible pursuant to Article 85(1) of the Rules of Procedure.

(b) Admissibility of the reports of the econometrics expert produced by the Commission

71 In reply to the written questions put by the Court, UPS disputes the admissibility of the two reports of an econometrics expert produced by the Commission as annexes to the rejoinder (Annexes D.5 and D.6 to the rejoinder). UPS submits, in essence, that the Commission produced those reports belatedly and without justification.

72 The Commission contends that those two reports are admissible.

73 However, it must be borne in mind that, pursuant to Article 81(1) and Article 85(1) and (2) of the Rules of Procedure, the pleas in law and arguments and evidence produced or offered must, in principle, be set out in the defence, since the defendant must give reasons for the delay in producing or offering further evidence, failing which the evidence will be rejected (see, to that effect, judgment of 15 November 2007, Hungary v Commission, T‑310/06, EU:T:2007:343, paragraph 164 and the case-law cited).

74 In the present case, the Commission produced, at the stage of the rejoinder, the two reports of an economist, dated 16 October 2019, that is to say, after the defence had been lodged. The Commission produced those reports in support of its response to pleas in law and arguments put forward not in the reply, but in the application.

75 In paragraphs 26 and 27 of the rejoinder, the Commission stated that it intended to respond to the argument advanced by UPS in paragraphs 35 and 36 of the application, by which UPS essentially raised the question whether the difference in nature between the concentration variable used at the estimation stage and that used at the prediction stage was acceptable, having regard to the specific circumstances of the proposed concentration. To that end, the Commission put forward, in essence, two arguments. The first, set out in paragraphs 28 to 50 of the rejoinder, is that none of the econometric models successively proposed by UPS during the administrative procedure was acceptable. In order to substantiate that argument, the Commission produced the first report of that expert (Annex D.5 to the rejoinder). By its second argument, set out in paragraphs 39 to 41 of the rejoinder, the Commission states that the model which it eventually adopted was justified and reasonable in the light of the particular circumstances of the proposed transaction. In support of that argument, the Commission relies on the second report of that expert (Annex D.6 to the rejoinder).

76 It must be stated that the Commission’s line of argument does not differ significantly from that set out in paragraphs 21 to 31 of the defence.

77 In those circumstances, it must be accepted that the two reports of the expert appointed by the Commission (Annexes D.5 and D.6 to the rejoinder) were produced belatedly, without the Commission justifying that delay in the rejoinder. It must therefore be held that those reports are inadmissible.

78 At the hearing, the Commission stated that, while ideally those two reports should have been produced at the stage of the defence, they constitute no more than a rebuttal of the reports drawn up by UPS’ experts (Annexes A.8 and A.9 to the application), as well as their additional opinions (Annexes C.1 and C.2 to the reply). The Commission added that, since UPS had been able to comment in writing on the admissibility and the substance of its expert’s reports, following a measure of organisation of procedure taken by the Court, the question of the admissibility of those reports no longer arose.

79 However, contrary to what the Commission contends, the expert reports which it produced are not intended to respond specifically to the two additional expert opinions produced by UPS at the stage of the reply (Annexes C.1 and C.2 to the reply). Furthermore, the fact that, in the present case, the Court invited UPS to comment in writing on the admissibility and substance of the first report of the Commission’s expert does not mean that that report is admissible. In accordance with Article 85(4) of the Rules of Procedure, it is without prejudice to the decision to be taken by the Court on the admissibility of the evidence submitted belatedly that the other parties were given an opportunity to comment on that evidence.

80 Since UPS’ submission is well founded, the reports submitted by the Commission (Annexes D.5 and D.6 to the rejoinder) must be declared inadmissible on account of their belated and unjustified production.

B. Substance

1. The conditions for non-contractual liability of the European Union

81 Under the second paragraph of Article 340 TFEU, in the case of non-contractual liability, the European Union is, in accordance with the general principles common to the laws of the Member States, to make good any damage caused by its institutions or by its servants in the performance of their duties.

82 According to settled case-law, in order for the European Union to incur non-contractual liability, three cumulative conditions must be satisfied: the rule of law infringed must be intended to confer rights on individuals and the breach must be sufficiently serious; actual damage must be shown to have occurred; and there must be a direct causal link between the breach of the obligation resting on the author of the act and the damage sustained by the injured parties (judgment of 13 December 2018, European Union v Kendrion, C‑150/17 P, EU:C:2018:1014, paragraph 117; see also, to that effect, judgment of 4 July 2000, Bergaderm and Goupil v Commission, C‑352/98 P, EU:C:2000:361, paragraphs 39 to 42). The cumulative nature of those conditions means that if one of them is not satisfied, the European Union cannot incur non-contractual liability (see, to that effect, judgments of 9 September 1999, Lucaccioni v Commission, C‑257/98 P, EU:C:1999:402, paragraphs 63 and 64, and of 15 June 2000, Dorsch Consult v Council and Commission, C‑237/98 P, EU:C:2000:321, paragraph 54).

83 A sufficiently serious breach of a rule of law intended to confer rights on individuals is established where the breach is one that implies that the institution concerned manifestly and gravely disregarded the limits set on its discretion, the factors to be taken into consideration in that connection being, inter alia, the complexity of the situations to be regulated, the degree of clarity and precision of the rule breached and the measure of discretion left by that rule to the EU institution (see, to that effect, judgments of 19 April 2007, Holcim (Deutschland) v Commission, C‑282/05 P, EU:C:2007:226, paragraph 50, and of 30 May 2017, Safa Nicu Sepahan v Council, C‑45/15 P, EU:C:2017:402, paragraph 30).

84 The requirement that there be a sufficiently serious breach of a rule of EU law stems from the need to strike a balance between, on the one hand, the protection of individuals against unlawful conduct of the institutions and, on the other, the leeway that must be accorded to the institutions in order not to paralyse action by them (judgment of 10 September 2019, HTTS v Council, C‑123/18 P, EU:C:2019:694, paragraph 34).

85 That balancing exercise proves all the more important because the Commission is responsible for defining and implementing EU competition policy and for that purpose has a discretion (judgment of 23 April 2009, AEPI v Commission, C‑425/07 P, EU:C:2009:253, paragraph 31).

86 It is true that making it easier for the European Union to incur liability by extending the concept of a sufficiently serious breach of EU law to any failure to fulfil a legal obligation, which, regrettable though it may be, can be explained, inter alia by objective constraints to which the Commission is subject, would risk compromising, or even inhibiting, the Commission’s action in the control of concentrations. However, a right to compensation must be available for persons who have suffered damage resulting from the conduct of the Commission where such conduct takes the form of an action which, without objective justification or explanation, is manifestly contrary to the rule of law and seriously detrimental to the interests of those persons (see, to that effect, judgments of 11 July 2007, Schneider Electric v Commission, T‑351/03, EU:T:2007:212, paragraphs 123 and 124, and of 9 September 2008, MyTravel v Commission, T‑212/03, EU:T:2008:315, paragraphs 42 and 43).

87 Such a definition of the threshold for the establishment of non‑contractual liability of the European Union is conducive to protection of the room for manoeuvre and freedom of assessment which must be enjoyed by the Commission, both in its discretionary decisions and in its interpretation and application of the relevant provisions of EU competition law, without thereby leaving third parties to bear the consequences of flagrant and inexcusable misconduct (see, to that effect, judgment of 11 July 2007, Schneider Electric v Commission, T‑351/03, EU:T:2007:212, paragraph 125).

88 Thus, non-contractual liability of the European Union can arise only if an irregularity is found that would not have been committed in similar circumstances by an administrative authority exercising ordinary care and diligence (judgment of 10 September 2019, HTTS v Council, C‑123/18 P, EU:C:2019:694, paragraph 43).

2. The alleged illegalities

89 UPS submits that the decision at issue and the procedure that led to its adoption are vitiated by several illegalities which constitute sufficiently serious breaches of EU law. According to UPS, the Commission infringed UPS’ procedural rights, failed to fulfil its obligation to state reasons and erred in its substantive assessment of the concentration, first, by departing from conventional econometric methods for the price concentration analysis, second, by conducting a static analysis of the competitive pressure exerted by FedEx and, third, by inadequately assessing the efficiencies.

90 It is appropriate to examine in turn the claims relating to the infringement of UPS’ procedural rights, the failure to fulfil the obligation to state reasons and the validity of the assessments contained in the decision at issue.

(a) The infringement of UPS’ procedural rights

91 In support of the illegality relating to the infringement of its procedural rights, UPS claims that the Commission, first, failed to communicate the econometric model used, second, failed to communicate the efficiencies assessment criteria and, third, failed to communicate certain confidential FedEx documents.

(1) The failure to communicate the econometric model used

92 UPS submits that the General Court, and then the Court of Justice, have already held that the Commission had infringed its rights of defence by failing to communicate to it the final version of the econometric model used to analyse the effects of the concentration on prices. According to UPS, that is a manifest and serious breach of a rule of law intended to confer rights on individuals, which cannot be justified either by time constraints or by the complexity of the case.

93 The Commission submits that the infringement of UPS’ rights of defence cannot be characterised as a sufficiently serious breach of EU law, given, first, the lack of clarity of EU law at the date of adoption of the decision at issue in relation to the obligation incumbent on it to communicate the final version of the econometric model and, second, the existence of time constraints in the assessment of the proposed concentration.

94 It should be borne in mind that the illegality alleged by UPS has already been definitively established. The Court annulled the decision at issue in its entirety, on the ground that the Commission had infringed UPS’ rights of defence by failing to communicate the final version of its econometric model to UPS (judgment of 7 March 2017, United Parcel Service v Commission, T‑194/13, EU:T:2017:144, paragraphs 221 and 222). That judgment became final after the Commission’s appeal was dismissed by the judgment of 16 January 2019, Commission v United Parcel Service (C‑265/17 P, EU:C:2019:23).

95 It is not disputed that the principle of respect for the rights of the defence, in procedures for the control of concentrations, falls within the category of rules of law intended to confer rights on individuals (see, to that effect, judgment of 16 July 2009, Commission v Schneider Electric, C‑440/07 P, EU:C:2009:459, paragraph 162).

96 By contrast, the parties disagree as to whether the infringement of UPS’ rights of defence is sufficiently serious to give rise to non-contractual liability on the part of the European Union.

97 In that regard, it should be noted that observance of the rights of the defence is a general principle of EU law which applies where the authorities are minded to adopt a measure which will adversely affect an individual (judgment of 16 January 2019, Commission v United Parcel Service, C‑265/17 P, EU:C:2019:23, paragraph 28).

98 For procedures for the control of concentrations, that principle is laid down in Article 18(3) of Regulation No 139/2004 and, in more detail, in Article 13(2) of Regulation No 802/2004. Those provisions require, among other things, that written notice of the Commission’s objections be given to the parties which have notified a concentration, with an indication to those parties of the period within which they may inform the Commission of their views in writing (judgment of 16 January 2019, Commission v United Parcel Service, C‑265/17 P, EU:C:2019:23, paragraph 29).

99 Those provisions are supplemented by those relating to access to the file, which is a corollary of the principle of respect for the rights of the defence. Accordingly, it is apparent from Article 18(3) of Regulation No 139/2004 and from Article 17 of Regulation No 802/2004 that, after the statement of objections has been disclosed, access to the file is open to the parties directly involved, subject, inter alia, to the legitimate interest of undertakings in ensuring that their commercial secrets are not disclosed, such access to documents not extending to confidential information or to the internal documents of the Commission or the competent authorities of Member States (judgment of 16 January 2019, Commission v United Parcel Service, C‑265/17 P, EU:C:2019:23, paragraph 30).

100 In order to analyse prospectively the effects of a concentration on the factors determining the state of competition on the affected markets, the use of econometric models allows better understanding of the planned operation by identifying and, where relevant, quantifying some of its effects, and thus contributes to the quality of the Commission’s decisions. It is therefore necessary that, where the Commission intends to base its decision on such models, the parties which have notified a concentration are able to submit their observations in that regard (judgment of 16 January 2019, Commission v United Parcel Service, C‑265/17 P, EU:C:2019:23, paragraph 33).

101 The disclosure of such models and methodological choices underlying their development is all the more necessary as it contributes to ensuring that the procedure is fair, in accordance with the principle of good administration enshrined in Article 41 of the Charter (judgment of 16 January 2019, Commission v United Parcel Service, C‑265/17 P, EU:C:2019:23, paragraph 34).

102 Observance of the rights of the defence before the adoption of a decision relating to the control of a concentration therefore requires the parties which have notified a concentration to be put in a position in which they can make known effectively their views on the accuracy and relevance of all the factors that the Commission intends to base its decision on (judgment of 16 January 2019, Commission v United Parcel Service, C‑265/17 P, EU:C:2019:23, paragraph 31).

103 Subsequent to the statement of objections, the Commission cannot modify the substance of an econometric model on which it intends to base its objections without that modification being brought to the attention of the undertakings concerned and allowing them to submit their comments in that regard. Such an interpretation would be contrary to the principle of observance of the rights of the defence and the provisions of Article 18(3) of Regulation No 139/2004, which, first, require the Commission to base its decisions only on objections in respect of which the interested parties have been able to comment and, second, establish a right of access to the file which is available, at least, to the parties directly concerned. Further, such material cannot be classified as an internal document within the meaning of Article 17 of Regulation No 802/2004 (judgment of 16 January 2019, Commission v United Parcel Service, C‑265/17 P, EU:C:2019:23, paragraph 37).

104 It follows that the Commission was under an obligation, before adopting the decision at issue, to bring to UPS’ attention the changes made to the econometric model used to assess the effects of the concentration on prices. That obligation stems from the application of Article 18(3) of Regulation No 139/2004, which requires the Commission to set out its objections with sufficient clarity and precision in order to ensure that the party which has notified a concentration has the opportunity to be heard before the adoption of the decision at issue. The Commission had considerably reduced, or even no, discretion in that regard (see, to that effect, judgment of 16 July 2009, Commission v Schneider Electric, C‑440/07 P, EU:C:2009:459, paragraph 166). Those considerations tend to show that, by failing to communicate its econometric model to UPS, the Commission manifestly and seriously disregarded the limits on its discretion.

105 The Commission considers, however, that that is not the case here and puts forward two arguments in that regard.

106 The first argument consists of maintaining that, when the decision at issue was adopted, the case-law was not yet clear on the obligation to communicate econometric models.

107 It must be borne in mind that the difficulties in applying or interpreting the relevant rules of EU law in the adoption of a measure subsequently called into question in order to establish the non-contractual liability of the European Union are taken into account when assessing the conduct of the institution concerned in order to determine whether it committed a sufficiently serious breach of a rule of EU law. Those parameters all relate to the date on which the decision or the conduct was adopted by that institution. It follows that the existence of a sufficiently serious breach of a rule of EU law must necessarily be assessed on the basis of the circumstances in which the institution acted on that particular date (see, to that effect, judgment of 10 September 2019, HTTS v Council, C‑123/18 P, EU:C:2019:694, paragraphs 44 and 46).

108 It is true that the judgment of 7 March 2017, United Parcel Service v Commission (T‑194/13, EU:T:2017:144), is the first to have examined whether the Commission could rely on an econometric model without first having given the undertaking which notified a concentration the opportunity to be heard on modifications to that model. However, the case-law relating to the principle of respect for the rights of the defence and the right to be heard was already abundant before delivery of that judgment. Thus, in a legislative and factual context different from that of the present case, the Court of Justice and the General Court had already held, in essence, that the Commission, by relying on a report which it had amended on its own initiative, without taking the precaution of asking the undertaking concerned what impact its unilateral action might have on the reliability of the information which that undertaking had provided to it, had committed a sufficiently serious breach of a rule of EU law (see, to that effect, judgments of 10 July 2003, Commission v Fresh Marine, C‑472/00 P, EU:C:2003:399, paragraph 30, and of 24 October 2000, Fresh Marine v Commission, T‑178/98, EU:T:2000:240, paragraphs 80 to 82).

109 Moreover, it is important to note the terms in which the Court of Justice rejected the Commission’s line of argument directed against the grounds of the judgment of 7 March 2017, United Parcel Service v Commission (T‑194/13, EU:T:2017:144), which led to the annulment of the decision at issue on the ground that UPS’ rights of defence had been infringed. The Court of Justice considered that, with regard to the observance of the rights of the defence, the question of whether failure to disclose to the parties to a concentration an econometric model justified the annulment of the Commission decision did not depend on the prior classification of that model as an incriminating or exculpatory piece of evidence. Given the importance of econometric models for the prospective analysis of the effects of a merger, raising the standard of proof required to annul a decision due to an infringement of the rights of the defence resulting, as in the present case, from failure to disclose the methodological choices, especially as regards statistical techniques, which are inherent to those models, as was advocated, in essence, by the Commission, would run counter to the objective of encouraging it to show transparency in the development of econometric models used in merger control procedures and undermine the effectiveness of subsequent judicial review of its decisions (judgment of 16 January 2019, Commission v United Parcel Service, C‑265/17 P, EU:C:2019:23, paragraphs 54 and 55).

110 The judgment of 16 January 2019, Commission v United Parcel Service (C‑265/17 P, EU:C:2019:23), therefore does not permit the inference that, on the date of adoption of the decision at issue, there was uncertainty as to the interpretation both of the principle of respect for the rights of the defence laid down, inter alia, in Article 18(3) of Regulation No 139/2004, and of the consequences to be drawn from an infringement of the rights of the defence resulting from the failure to communicate an econometric model such as that at issue in the present case.

111 In those circumstances, the Commission’s contention that the infringement of UPS’ rights of defence must be regarded as excusable on account of an alleged lack of clarity of EU law at the date of adoption of the decision at issue must be rejected.

112 The Commission’s second argument consists of maintaining that, in view of the time constraints under which it had to assess the transaction between UPS and TNT in all its complexity, the infringement of UPS’ rights of defence cannot be regarded as a sufficiently serious breach. According to the Commission, those time constraints cannot be downplayed. It was only two months before the adoption of the decision at issue that the Commission made additional changes to the econometric model. During those two months, it had to analyse the response to the Statement of Objections (346 pages), arrange state of play meetings, communicate its provisional findings to UPS and evaluate its proposed commitments, consult the Member States and draw up the decision at issue (450 pages), even though UPS had submitted its price concentration analysis at a late stage in the procedure.

113 It is true that it is for the Commission to reconcile the need for speed, which characterises the general scheme of Regulation No 139/2004, with observance of the rights of the defence (judgment of 16 January 2019, Commission v United Parcel Service, C‑265/17 P, EU:C:2019:23, paragraph 38).

114 However, as regards the circumstances of the present case, it has already been held that the final version of the econometric model had been adopted on 21 November 2012, that is to say, more than two months before the adoption of the decision at issue. Although not negligible, those changes were not communicated to UPS. The Commission did not provide any information indicating the specific reasons for which it would have been impossible in practice, at that time, to give UPS a short deadline for it to submit observations on those changes (judgment of 16 January 2019, Commission v United Parcel Service, C‑265/17 P, EU:C:2019:23, paragraphs 41 and 42), even though the communication of the change made to the econometric model did not involve any technical or administrative difficulties and the Commission then had sufficient time to adopt the decision at issue after hearing UPS.

115 In the light of those factors, the justification given by the Commission for the existence of time constraints is unfounded.

116 The Commission objects, however, that, in view of the context in which the decision at issue was adopted, the failure to communicate the final changes to the econometric model does not support the conclusion that there was a sufficiently serious breach of a rule of EU law. It maintains that the analysis of the effects of the concentration on prices in the decision at issue was the result of an iterative process of dialogue with UPS, which would mitigate the error made. After taking UPS’ suggestions into consideration, the Commission ultimately decided to use the most appropriate model, for the reasons set out in recitals 727 to 740 of the decision at issue.

117 In order to determine whether the unlawful act committed by the Commission can give rise to liability on the part of the European Union, it must be emphasised, in addition to the particular importance of fundamental guarantees in the EU legal order, that the methodological bases underpinning the econometric models used for the prospective analysis of a concentration must be as objective as possible in order not to prejudge the outcome of that analysis in one way or the other. Accordingly, those factors contribute to the impartiality and quality of the Commission’s decisions which, ultimately, is the basis of the trust that the public and businesses place in the legitimacy of the European Union’s merger control procedure (judgment of 16 January 2019, Commission v United Parcel Service, C‑265/17 P, EU:C:2019:23, paragraph 53).

118 By thus avoiding a procedural constraint which was nevertheless intended to safeguard the legitimacy and fairness of the European Union’s procedure for the control of concentrations, the Commission also placed UPS in a position where it was unable to understand part of the grounds of the decision at issue.

119 As regards the Commission’s argument that the infringement of the rights of the defence was not sufficiently serious, on the ground that UPS would have been able to understand the changes made in the final version of the econometric model because of the discussions which preceded its finalisation, it must be recalled that the Court has already definitively held that, although there were numerous similarities between the final econometric model and those discussed previously, the changes made were not negligible, and that the use of different concentration variables at different stages of the analysis was not discussed repeatedly at any point during the administrative procedure (judgment of 7 March 2017, United Parcel Service v Commission, T‑194/13, EU:T:2017:144, paragraphs 204 to 209).

120 It was only in the proceedings in the case which gave rise to the judgment of 7 March 2017, United Parcel Service v Commission (T‑194/13, EU:T:2017:144), that UPS was able, following a measure of organisation of procedure adopted by the Court on 11 April 2016, to acquaint itself with the changes made in the final version of the econometric model.

121 The Commission’s argument that the infringement of the rights of the defence is mitigated by the fact that the finalisation of the econometric model had been preceded by numerous exchanges with UPS is therefore unfounded.

122 Since it had not been provided with the final version of the econometric model, UPS was thus deprived of information which, had it been communicated to UPS in due time, could have allowed it to submit different results on the effects of the merger on prices, which might have given rise to a reassessment of the scope of the information taken into consideration by the Commission and, accordingly, a reduction in the number of States in which there would be a significant impediment to effective competition (judgment of 7 March 2017, United Parcel Service v Commission, T‑194/13, EU:T:2017:144, paragraph 218). It must therefore be held that the infringement of UPS’ rights of defence is manifest and serious.

123 The infringement of UPS’ rights of defence therefore constitutes a sufficiently serious breach, on the part of the Commission, of a rule of EU law intended to confer rights on individuals.

(2) The alleged failure to communicate the efficiencies assessment criteria

124 While agreeing that the burden of proving efficiencies falls on the party which has notified a concentration, UPS submits that the Commission is required to define, before adopting the final decision, the standard of proof which it requires for the claimed efficiencies to be considered verifiable within the meaning of the Guidelines on the assessment of horizontal mergers under the Council Regulation on the control of concentrations between undertakings (OJ 2004 C 31, p. 5; ‘the Guidelines’). Without prior disclosure of those criteria, the Commission would have an arbitrary power to accept or reject the claimed efficiencies, and neither the party which has notified a concentration nor the Courts of the European Union would be in a position to carry out the slightest review. The Commission could have explained at the stage of the Statement of Objections or the letter of facts, which supplemented that statement, in accordance with paragraph 111 of the Commission notice on best practices for the conduct of proceedings concerning Articles 101 and 102 TFEU (OJ 2011 C 308, p. 6), the reasons why it intended to accept certain efficiencies and reject others. However, according to UPS, it did not do so.

125 In line with what has already been held with regard to the failure to communicate the econometric model, UPS submits that the failure to communicate the efficiencies assessment criteria resulted in an infringement of its rights of defence. UPS claims that the Commission is under an obligation to set out its objections to the verifiability of the claimed efficiencies and to give the parties which have notified a concentration the opportunity to comment in that regard. According to UPS, the Commission failed to fulfil that obligation, thus making it impossible for UPS to demonstrate the existence of efficiencies.

126 Furthermore, although UPS provided, as early as the submission of the notification form, ample evidence of efficiencies, the Commission merely rejected that evidence as insufficient, without making a request for information. It was only at the end of the administrative procedure that the Commission attempted to engage with UPS – to a limited extent – regarding efficiencies. However, it is implausible that the Commission would have had time to take into consideration the information last provided by UPS on 20 November 2012, given the position it took at the state of play meeting on the same day.

127 Lastly, it is only at the stage of the proceedings before the Court in the case which gave rise to the judgment of 7 March 2017, United Parcel Service v Commission (T‑194/13, EU:T:2017:144), that UPS considers that it was in a position to engage in a substantive discussion with the Commission on that point.

128 The Commission contests that line of argument.

129 It must be borne in mind that, to declare a concentration incompatible with the internal market, the Commission has to prove, in accordance with Article 2(3) of Regulation No 139/2004, that the implementation of the notified concentration would significantly impede effective competition in the internal market or in a substantial part of it, in particular as a result of the creation or strengthening of a dominant position (judgment of 6 July 2010, Ryanair v Commission, T‑342/07, EU:T:2010:280, paragraph 26).

130 It is apparent from the case-law that the decisions of the Commission as to the compatibility of concentrations with the internal market must be supported by a sufficiently cogent and consistent body of evidence. Thus, where the Commission takes the view that a concentration should be prohibited, it is incumbent upon it to produce convincing evidence in support of that conclusion (see, to that effect, judgments of 10 July 2008, Bertelsmann and Sony Corporation of America v Impala, C‑413/06 P, EU:C:2008:392, paragraph 50, and of 6 June 2002, Airtours v Commission, T‑342/99, EU:T:2002:146, paragraph 63).

131 In that context, the quality of the evidence produced by the Commission in order to establish that it is necessary to adopt a decision declaring a concentration incompatible with the internal market is particularly important. However, it cannot be deduced therefrom that the Commission must comply with a higher standard of proof in relation to decisions prohibiting concentrations than in relation to decisions approving them. The case-law referred to in paragraph 130 above merely reflects the essential function of evidence, which is to establish convincingly the merits of an argument or, as in the case of the control of concentrations, to support the conclusions underpinning the Commission’s decisions. In that regard, the inherent complexity of a theory of competitive harm put forward in relation to a notified concentration is a factor which must be taken into account when assessing the plausibility of the various consequences such a concentration may have, in order to identify those which are most likely to arise, but such complexity does not, of itself, have an impact on the standard of proof which is required (judgment of 10 July 2008, Bertelsmann and Sony Corporation of America v Impala, C‑413/06 P, EU:C:2008:392, paragraphs 50 and 51).

132 Regulation No 139/2004 does not contain any provisions relating to efficiencies. However, recital 29 thereof states the following: ‘In order to determine the impact of a concentration on competition in the common market, it is appropriate to take account of any substantiated and likely efficiencies put forward by the undertakings concerned. It is possible that the efficiencies brought about by the concentration counteract the effects on competition, and in particular the potential harm to consumers, that it might otherwise have and that, as a consequence, the concentration would not significantly impede effective competition, in the common market or in a substantial part of it, in particular as a result of the creation or strengthening of a dominant position. The Commission should publish guidance on the conditions under which it may take efficiencies into account in the assessment of a concentration.’

133 The guidance from the Commission referred to in recital 29 of Regulation No 139/2004 is set out in points 76 to 88 of the Guidelines.

134 It is apparent from points 76 and 77 of the Guidelines that it is possible that efficiencies counteract the adverse effects of the concentration on competition. The Commission may thus decide that there are no grounds for declaring a concentration incompatible where that institution is in a position to conclude on the basis of sufficient evidence that the efficiencies generated by the concentration are likely to increase the ability and incentive of the merged entity to act pro-competitively for the benefit of consumers.

135 To that end, it is apparent from point 78 of the Guidelines that three cumulative conditions must be satisfied: those efficiencies must, first, benefit consumers, second, be merger-specific and, third, be verifiable.

136 The condition relating to the verifiability of efficiencies is further elaborated upon in points 86 to 88 of the Guidelines. It is apparent from point 86 of those guidelines that the purpose of that condition is to enable the Commission to ‘be reasonably certain that the efficiencies are likely to materialise, and be substantial enough to counteract a merger’s potential harm to consumers’. That point states that the more precise and convincing the efficiency claims are the better the Commission can evaluate the claims. In that regard, point 86 of the Guidelines states that, where reasonably possible, efficiencies and the resulting benefit to consumers should therefore be ‘quantified’ and that, ‘when the necessary data are not available to allow for a precise quantitative analysis, it must be possible to foresee a clearly identifiable positive impact on consumers, not a marginal one’.

137 Lastly, the issue of the burden of proof and the description of the evidence relevant to the assessment of efficiency claims are the subject of points 87 and 88 of the Guidelines, which are worded as follows: ‘87. Most of the information, allowing the Commission to assess whether the merger will bring about the sort of efficiencies that would enable it to clear a merger, is solely in the possession of the merging parties. It is, therefore, incumbent upon the notifying parties to provide in due time all the relevant information necessary to demonstrate that the claimed efficiencies are merger-specific and likely to be realised. Similarly, it is for the notifying parties to show to what extent the efficiencies are likely to counteract any adverse effects on competition that might otherwise result from the merger, and therefore benefit consumers. 88. Evidence relevant to the assessment of efficiency claims includes, in particular, internal documents that were used by the management to decide on the merger, statements from the management to the owners and financial markets about the expected efficiencies, historical examples of efficiencies and consumer benefit, and pre-merger external experts’ studies on the type and size of efficiency gains, and on the extent to which consumers are likely to benefit.’

138 It is thus clear from the Guidelines that it is for the party which has notified a concentration to adduce precise and compelling evidence enabling, as far as possible, the expected efficiencies to be quantified. That situation differs from the burden of proving the foreseeable effects of the concentration, a burden which is borne by the Commission and from which it follows that the econometric models used for that purpose are communicated to the parties which have notified a concentration, since those models are a decision-making tool (judgment of 16 January 2019, Commission v United Parcel Service, C‑265/17 P, EU:C:2019:23, paragraph 33).

139 It is true that those indications given in the Guidelines state, in general terms, that only efficiencies supported by evidence allow for an objective assessment of their scope and likelihood. The Guidelines provide indicative examples of relevant information in that regard, in particular internal documents intended for the undertakings concerned. However, the generality of the wording used in the Guidelines is understandable, if not inevitable, on account of the heterogeneity of the individual situations of undertakings, of the likely efficiencies and of the characteristics of the markets on which the Commission has to carry out its control when a concentration is notified to it. It cannot therefore be reasonably expected that the Commission, by means of an instrument such as the Guidelines, will define in advance, extensively and in great detail, all the criteria on the basis of which those efficiencies may be regarded as verifiable.

140 Likewise, no provision of Regulation No 139/2004 or the Guidelines requires the Commission, where the parties which have notified a concentration have put forward arguments based on efficiencies, to define in advance, in the abstract, the specific criteria on the basis of which it intends to accept that an efficiency may be regarded as verifiable.

141 It should be noted in that regard that it has already been held, in the context of anti-dumping legislation, that the institution, when it exercises the discretion conferred on it by that legislation without explaining in detail and in advance the criteria which it intends to apply in every specific situation, does not breach the principle of legal certainty (see, to that effect, judgments of 5 October 1988, Brother Industries v Council, 250/85, EU:C:1988:464, paragraph 29, and of 7 May 1991, Nakajima v Council, C‑69/89, EU:C:1991:186, paragraph 118). That situation is analogous to that in the present case, in which Regulation No 139/2004 confers on the Commission a discretion to assess the efficiencies claimed by the parties which have notified a concentration without requiring it to define in advance and in the abstract the relevant criteria for that purpose.

142 In those circumstances, UPS’ line of argument seeking to show that the Commission was required to communicate to it the specific criteria and standards of proof which it intended to apply in order to determine whether each of the efficiencies relied on was verifiable is unfounded in law.

143 In the light of the foregoing considerations, the Court must reject as unfounded the argument that the Commission infringed UPS’ procedural rights in the efficiencies analysis on the ground that it failed to communicate the assessment criteria for those efficiencies.

(3) The alleged failure to communicate certain confidential FedEx documents

144 UPS complains that the Commission failed to grant it access to all the information provided by FedEx during the administrative procedure, or at least failed to grant such access to its lawyers, in order to enable them to verify its content independently. UPS submits that it was deprived of the opportunity to assess the probative value of the information provided by FedEx, even though that information influenced the Commission’s decision to abandon, for 14 national markets, the complaints relating to the existence of a significant impediment to effective competition, while maintaining them for 15 other national markets.

145 UPS submits that that material linked to FedEx could also have been relevant in the 15 other markets in respect of which the Commission incorrectly maintained its complaints of a significant impediment to effective competition. UPS claims that its suspicions are reinforced by the changing nature of the justifications put forward in turn by the Commission in the course of the procedure in order to challenge the relevance of FedEx’s internal documents.

146 Neither UPS nor the Court was in a position to verify the accuracy of the information submitted by FedEx. Had it been aware of that information, UPS considers that it could have established that the 15 national markets in respect of which the Commission found that there would be a significant impediment to effective competition could not be distinguished from the other 14 markets. UPS suspects FedEx of having sought to convince the Commission to prohibit the proposed concentration between UPS and TNT by downplaying its expansion plans in Europe. UPS relies on certain contradictions between FedEx’s observations during the administrative procedure and its public statements to investors.

147 UPS states that its argument relates not to access to FedEx’s confidential documents that were used as incriminating evidence, but to the question whether it could be denied access to FedEx’s other confidential documents, which are relevant to assessing the probative value of those used as incriminating evidence. UPS claims, in that regard, that it is not for the Commission to decide which documents are of use for the defence of the undertaking which has notified a concentration.

148 It was only following the measures taken by the Court in the case that gave rise to the judgment of 7 March 2017, United Parcel Service v Commission (T‑194/13, EU:T:2017:144), that it was able to obtain knowledge of certain information sent by FedEx to the Commission. The few documents thus consulted by UPS contradict the distinction drawn by the Commission between national markets according to whether or not they show a significant impediment to effective competition.

149 UPS claims that the Commission cannot maintain that it is for UPS to prove that the documents to which it never had access had an impact on the decision at issue, as is apparent from paragraph 63 of the judgment of 25 October 2011, Solvay v Commission (C‑109/10 P, EU:C:2011:686), or rely on the judgment of 14 December 2005, General Electric v Commission (T‑210/01, EU:T:2005:456), since that judgment did not concern access to documents which contradict the incriminating value of the statements of a third party.

150 According to UPS, the Commission came into possession of the FedEx documents five months before the adoption of the decision at issue. In those circumstances, the Commission cannot rely on any time constraints to excuse the infringement of UPS’ rights of defence.

151 It is only once it has been granted access to those documents that UPS considers that it will be in a position to explain the counterfactual scenario precisely. UPS requests that the Court order the Commission, by way of measure of organisation of procedure or measures of inquiry, to produce all internal FedEx documents which the Commission has in its possession.

152 The Commission denies any infringement of UPS’ procedural rights.

153 It should be noted that UPS does not claim that the Commission failed to disclose the internal FedEx documents on which the decision on the incompatibility of the concentration between UPS and TNT was based. Nor does UPS dispute the confidential nature of the internal FedEx documents to which it requested access during the administrative procedure, or which were sent to it in redacted versions or by means of summaries. By contrast, UPS claims that its rights of defence were infringed in so far as the Commission did not allow it to consult all the internal FedEx documents in their unredacted confidential versions. Considering that all those documents were potentially exculpatory evidence, UPS maintains that the Commission should, at the very least, have granted it ‘restricted’ access to enable its external legal counsel to assess their evidential value independently, while respecting their confidentiality.

154 In the control of concentrations, the Commission is required to communicate to the parties which have notified a concentration all the factors that it intends to base its decision on in order to enable those parties to be heard (judgment of 16 January 2019, Commission v United Parcel Service, C‑265/17 P, EU:C:2019:23, paragraph 31). Before adopting a decision such as the decision at issue, Article 18(1) of Regulation No 139/2004 requires the Commission to give ‘the persons, undertakings and associations of undertakings concerned the opportunity, at every stage of the procedure up to the consultation of the Advisory Committee, of making known their views on the objections against them’. According to Article 18(3) of that regulation, ‘the Commission shall base its decision only on objections on which the parties have been able to submit their observations’ and ‘the rights of the defence shall be fully respected in the proceedings’.

155 As regards documents other than those relied on in support of the objections communicated by the Commission, access to the file is not automatic but must be requested. Article 17(1) of Regulation No 802/2004 provides that, ‘if so requested, the Commission shall grant access to the file to the parties to whom it has addressed a statement of objections, for the purpose of enabling them to exercise their rights of defence’ and that ‘access shall be granted after the notification of the statement of objections’. Those provisions are reflected in paragraph 7 of the Commission Notice on the rules for access to the Commission file in cases pursuant to Articles [101] and [102 TFEU], Articles 53, 54 and 57 of the EEA Agreement and [Regulation No 139/2004] (OJ 2005 C 325, p. 7; ‘the Commission Notice on access to the file’), according to which ‘access is granted, upon request, to the persons, undertakings or associations of undertakings, as the case may be, to which the Commission addresses its objections’.

156 That request for access to the file must be submitted to the Directorate-General (DG) for Competition before being addressed, if necessary, to the hearing officer. Article 3(7) of Decision 2011/695/EU of the President of the European Commission of 13 October 2011 on the function and terms of reference of the hearing officer in certain competition proceedings (OJ 2011 L 275, p. 29) provides that any issue regarding the effective exercise of the procedural rights of the parties concerned is first to be raised with DG Competition and, if not resolved, may be referred to the hearing officer. Article 7(1) of Decision 2011/695 provides in that regard that, where a party which has exercised its right of access has reason to believe that the Commission has in its possession documents which have not been disclosed to it and that those documents are necessary for the proper exercise of the right to be heard, it may make a reasoned request for access to those documents to the hearing officer. Those provisions form, in essence, the subject of paragraph 47 of the Commission Notice on access to the file. In order to facilitate access to the file, paragraph 45 of the Commission Notice on access to the file provides that the Commission is to give the parties ‘an enumerative list of documents setting out the content of the Commission file’.

157 In order to ensure the effectiveness of the right of access in merger control procedures, a request for access to the file must be submitted in good time. As stated in paragraph 28 of the Commission Notice on access to the file, it is apparent from a combined reading of Article 18(1) and (3) of Regulation No 139/2004 and Article 17(1) of Regulation No 802/2004 that the parties which have notified a concentration will be given access to the Commission’s file upon request at every stage of the procedure following the notification of the Commission’s objections up to the consultation of the Advisory Committee. Article 3(7) of Decision 2011/695 provides, moreover, that requests related to a measure for which a time limit applies must be made in due time, within the original time limit. It follows that a request for access to the file submitted to DG Competition or to the hearing officer after the Advisory Committee has delivered its opinion on the Commission’s draft decision must be regarded as out of time.

158 In the present case, UPS’ argument is, in part, too general to support the conclusion that the undisclosed documents were at least potentially necessary for the exercise of its rights of defence. UPS submits that all of FedEx’s confidential internal documents should have been disclosed to it, since they would have enabled it to understand the factors on which the Commission had relied in order to accept the existence of a significant impediment to effective competition on 15 national markets and to rule it out for 14 others, without providing further details.

159 However, UPS relies more specifically on two groups of internal confidential documents that FedEx sent to the Commission, one before the Statement of Objections of 19 October 2012 and the other after that statement. According to UPS, those documents explain why the Commission abandoned the concerns initially expressed in the Statement of Objections with regard to 14 national markets.

160 The first group consists, according to UPS, of 484 internal FedEx documents which the Commission had in its possession since 10 August 2012. The second group refers to certain documents which FedEx submitted to the Commission on 9 and 15 November 2012, relating to its expansion plans, to which UPS’ lawyers claim to have had partial access, following a measure of organisation of procedure adopted by the Court on 11 April 2016 in the case which gave rise to the judgment of 7 March 2017, United Parcel Service v Commission (T‑194/13, EU:T:2017:144).

(i) Access to the 484 internal confidential FedEx documents placed on the file on 10 August 2012

161 UPS, in paragraph 52 of the application, claims that the Commission, which was in possession of most of FedEx’s internal documents since 10 August 2012, could have granted it access to exculpatory evidence, at the latest at the time of the letter of facts. However, it failed to do so, thereby manifestly and gravely disregarding the rights of the defence. At the stage of the reply, UPS requested that the Court order the Commission to produce all internal FedEx documents in its possession. When questioned in writing on that point, UPS referred to 484 internal FedEx documents concerning that undertaking’s expansion plans.

162 The Commission contends, in essence, that the decision at issue is not based on any FedEx documents to which UPS did not have access and that, as to the remainder, UPS did not request access to the 484 documents in question during the administrative procedure.

163 It should be noted that the parties agree that FedEx sent the 484 documents in question on 10 August 2012 in response to a request for information from the Commission of 2 August 2012. UPS does not claim that those documents do not appear on the enumerative list of documents setting out the content of the file. In footnote 49 to Annex A.14 to the application, UPS states that it managed to identify the existence of those documents by consulting the non-confidential letter of FedEx’s lawyers of 10 August 2012 accompanying the transmission of the documents in question (document bearing the reference ID 6459). Although it did not specify at the hearing when it became aware of the existence of those documents, UPS stated that it had requested access to them during the administrative procedure and had referred the matter to the hearing officer for that purpose on 30 October 2012.

164 However, it must be noted that the request for access to the file that UPS sent to DG Competition on 25 October 2012 contains no reference to those documents. In its request, UPS requested, out of the 7299 documents in the index of the administrative file, access to the 1122 documents emanating from third parties which were not disclosed, without any justification on the part of the Commission.

165 The Commission replied to UPS, by email of 25 October 2012, that, out of all the documents in the file to which it had had a right of access since the Statement of Objections, only 323 documents were inaccessible by reason of business secrets and 1177 other documents were accessible in a non-confidential version.

166 It must be noted that, in its request to the hearing officer of 30 October 2012, aside from the requests for access relating to certain specific documents that were identified by their reference or, at the very least, identifiable, UPS confined itself to relying, in general terms, on its right to review ‘directly or through [its] legal representatives any potentially exculpatory evidence contained in the Commission’s file, in particular internal strategy data originating from FedEx’.

167 Not only does UPS have no such unlimited and absolute right of access to the confidential information in the file, but it could not reasonably expect the hearing officer to interpret that vague and abstract request as referring specifically to the 484 documents attached by FedEx to its reply of 10 August 2012 to the Commission’s questions.

168 UPS has not proved that, during the remainder of the administrative procedure, it requested access to the 484 documents in question, either in the request for access sent to the Commission on 26 November 2012 or in that of 4 January 2013, in response to the letter of facts.

169 It is apparent from those factors that, having failed to demonstrate that it made a request to that effect, UPS did not exercise its right of access to the 484 documents that FedEx sent to the Commission on 10 August 2012 and which were placed on the file, under the conditions laid down in Article 3(7) of Decision 2011/695.

171 Those decisions may be transposed to an action for damages resulting from an alleged infringement of the right of access to the file in a merger control procedure. A party which has notified a concentration which fails to submit a request for access to the file to DG Competition and then, if its request is rejected, to the hearing officer cannot claim subsequently that it meets the conditions for obtaining compensation for alleged damage resulting from the infringement of the right of access, when it did not exercise that right in due time and in the prescribed manner.

172 Accordingly, UPS’ argument alleging infringement of the right of access to the 484 internal confidential FedEx documents sent to the Commission on 10 August 2012 must be rejected.

(ii) Access to the documents submitted by FedEx on 9 and 15 November 2012

173 It should be borne in mind that, in the Statement of Objections of 19 October 2012, the Commission expressed the view (see, in particular, Sections 7.1.3.2 and 7.1.3.7 of that statement) that one of the reasons why FedEx was not a sufficiently powerful competitor to offset the effects of the transaction between UPS and TNT related to the low coverage of its network compared with those of its competitors. The Commission also noted, in Section 7.1.3.8 of that statement, that FedEx’s recent acquisitions and expansion plans would not enable FedEx to close the gap between itself and its main competitors in the near future. On the basis of that evidence, the Commission concluded, in Section 7.1.3.9 of that statement, that FedEx’s position was too weak to impose a significant competitive constraint to counteract the negative effects of the proposed concentration on competition.

174 It is apparent from the documents in the file that, by email of 26 October 2012, the Commission sent FedEx a request for additional information concerning that undertaking’s infrastructure. That request, intended in particular to inform the Commission of FedEx’s expansion plans, sought more specifically to obtain for each EEA country: – a map showing the location of the infrastructure used by FedEx for the delivery of small packages, as well as the infrastructure which was planned to be used before the end of 2015; – the list of subcontractors used for the pick-up and delivery (‘the PUD’) of small packages, as well as those which FedEx planned to use before the end of 2015, indicating for each of them their location and catchment area. That information was to be provided in the form of a table, organised under headings that made it possible to identify and locate each undertaking and to provide data on its position and weight in the FedEx network (air, ground or local), indicating, inter alia, its sorting capacity in 2011, its catchment area, the number of routes served, the daily movement of trucks and the size of the fleet of delivery vehicles. The Commission also asked FedEx to specify the proposed date for the start of planned operations from facilities that were not yet operational.

175 The purpose of that request was to supplement the information on which the Commission’s provisional analysis set out in the Statement of Objections as to FedEx’s competitive position on the intra-EEA market for express deliveries was based.

176 In response, FedEx sent the Commission the maps and tables requested on 9 November 2012. On 15 November 2012, FedEx produced a revised version of those documents.

177 It is common ground that the Commission did not forward those documents to UPS during the administrative procedure. It was only in the proceedings in the case which gave rise to the judgment of 7 March 2017, United Parcel Service v Commission (T‑194/13, EU:T:2017:144), that UPS was ultimately able to acquaint itself with the non-confidential version of those documents, following a measure of organisation of procedure taken by the Court on 11 April 2016.

178 That being the case, the Commission argued at the hearing that any infringement of UPS’ rights of defence in that regard could be ruled out, since UPS had not referred the matter to the hearing officer in order to challenge DG Competition’s refusal to grant access. The Commission stated that, since that refusal was dated 11 January 2013, UPS could still contact the hearing officer until 18 January 2013, the date of the meeting of the Advisory Committee, which UPS failed to do.

179 It is true that UPS exercised its right of access to the file, since it submitted to DG Competition on 4 January 2013 a restricted request for access via a data room in its response to the letter of facts, that request relating in particular to the responses to the requests for information bearing the references Q30 and Q31.

180 However, it is apparent from the file that UPS did not refer DG Competition’s refusal of 11 January 2013 to the hearing officer, even though UPS had a time limit that would expire, in accordance with Article 18(1) and (3) of Regulation No 139/2004 and Article 17(1) of Regulation No 802/2004, on the date of the meeting of the Advisory Committee, that is to say, in the present case, on 18 January 2013. Moreover, UPS has not claimed that those rules were vitiated by any illegality whatsoever.

181 In those circumstances, it must be held that, since it did not submit a request for access to the file to the hearing officer, UPS cannot claim subsequently that it meets the conditions for obtaining compensation for alleged damage resulting from the infringement of that right, which it did not exercise in due time and in the prescribed manner.

182 It follows from the foregoing that UPS’ line of argument alleging infringement of its right of access to FedEx’s replies of 9 and 15 November 2012 is unfounded.

183 Moreover, since UPS did not first submit to DG Competition or, in the event of refusal, to the hearing officer a request for access to the 484 internal confidential FedEx documents sent to the Commission on 10 August 2012 and a request for access to FedEx’s replies of 9 and 15 November 2012, it is not necessary to grant UPS’ request for measures of organisation of procedure concerning the production of those documents.

(b) The alleged infringement of the obligation to state reasons

184 UPS submits that the Commission failed to provide an adequate statement of reasons for the decision at issue as regards the standard of proof required to differentiate, on the basis of the price concentration analysis, efficiencies and FedEx’s competitiveness, between the 15 national markets on which there would be a significant impediment to effective competition and the 14 other national markets. Accordingly, neither UPS nor the Court could verify how the Commission, on the basis of those three factors, had drawn a distinction between those markets or to assess the merits of the conclusions on the closeness of competition. UPS asserts that, while inadequate reasoning does not on its own give rise to damages, it underscores in this case the Commission’s grave disregard of the rule of law.

185 The Commission contends that any inadequacy in a statement of reasons is not sufficient to give rise to non-contractual liability on the part of the European Union.

186 It must be borne in mind that, in order to determine whether the alleged illegality is capable of giving rise to non-contractual liability on the part of the European Union, the Court must be able to understand the scope of the alleged infringement. It is for the applicant to identify the conduct complained of, f