Judgment of the General Court (Third Chamber) of 9 October 2018 –

Mass Response Service v Commission

(Case T‑885/16)

(Action for annulment — Competition — Concentrations — Retail market for mobile telecommunications services and market for wholesale access and call origination in Germany — Acquisition of E-plus by Telefónica Deutschland — Decision declaring the concentration to be compatible with the internal market and the EEA Agreement — Implementation of the non-MNO component of the Final Commitments — Acts against which no action may be brought — Inadmissibility)

1. Actions for annulment — Actionable measures — Concept — Measures producing binding legal effects — Letter from the Commission to the applicant interpreting the scope of the commitments entered into by a third undertaking in order to render a concentration compatible with the internal market — Not included (Art. 263, fourth para. TFEU) (see paras 30, 35, 36, 39)

2. Actions for annulment — Actionable measures — Concept — Measures producing binding legal effects — Letter from an institution (Art. 263 TFEU) (see para. 40)

3. Concentrations between undertakings — Examination by the Commission — Commitments of the undertakings concerned capable of rendering the notified operation compatible with the internal market — Entitlement of third parties to lodge a complaint with the Commission for breach of the commitments — Absence (Council Regulation No 139/2004; Commission Regulations No 773/2004, Art. 7 and No 802/2004) (see paras 42, 43)

4. Actions for annulment — Admissibility criteria — Actionable measure — Absence — Inadmissibility — Infringement of the right to effective judicial protection — Absence (Art. 19 TEU; Arts 263, fourth para. and 267 TFEU; Charter of Fundamental Rights of the European Union, Art. 47) (see paras 46-49)

5. Concentrations between undertakings — Examination by the Commission — Commitments of the undertakings concerned capable of rendering the notified operation compatible with the internal market — Criteria (Council Regulation No 139/2004, Arts 2(2), 6(2) and 8(2)) (see paras 50-54)

6. Actions for annulment — Time limits — Mandatory — Point from which time starts to run — Date on which the measure at issue was published — Concept — Decision published in full on an institution’s internet site and in summary form in the Official Journal of the European Union — Included (Art. 263, sixth para. TFEU) (see paras 61-63)

7. Judicial proceedings — Time limit for instituting proceedings — Claim barred by lapse of time — Excusable error — Concept (see paras 70, 75)

Re:

Application based on Article 263 TFEU and seeking, in particular, annulment of the alleged decisions of the Commission contained in the emails of 24 and 29 October 2016 relating to the implementation of the non-MNO remedy provided for in the Final Commitments made obligatory by Commission Decision C(2014) 4443 final of 2 July 2014 declaring a concentration to be compatible with the internal market and the EEA agreement, subject to compliance with certain commitments (Case COMP/M.7018 Telefónica Deutschland v E-plus).

Operative part

The Court:

1. Dismisses the action;

2. Declares that there is no need to rule on the applications to intervene lodged by Telefónica Deutschland Holding AG and Drillisch AG;

3. Orders Mass Response Service GmbH to bear its own costs and to pay those incurred by the European Commission;

4. Orders Telefónica Deutschland Holding to bear its own costs relating to the application to intervene;