Appeal brought on 1 September 2022 by thyssenkrupp AG against the judgment of the General Court (Ninth Chamber) delivered on 22 June 2022 in Case T-584/19, thyssenkrupp v Commission

(Case C-581/22 P)

(2022/C 398/23)

Language of the case: English

Parties

Appellant: thyssenkrupp AG (represented by: M. Klusmann, J. Ziebarth, O. Schley, Rechtsanwälte)

Other party to the proceedings: European Commission

Form of order sought

The appellant claims that the Court should:

— set aside the judgment under appeal;

— annul the Commission’s decision C (2019) 4228 final (1) of 11 June 2019 in case M.8713 — Tata Steel/thyssenkrupp/JV;

— in the alternative, refer the case back to the General Court for determination in accordance with the judgment of the Court of Justice; and

— order the Commission to pay the costs before the General Court and the Court of Justice.

Pleas in law and main arguments

The Appellant claims that the General Court did not perform a sufficient judicial review of its application for annulment by only performing a ‘light review’ of the pleas made. Furthermore, the General Court erred in law by not applying the correct substantive standards for defining relevant markets in merger cases and for finding a significant impediment of effective competition (‘SIEC’) to support a decision prohibiting a merger, by not applying applicable standards of proof, by unduly reversing the burden of proof, and by distorting or failing to consider the available evidence as well as by not adjudicating all pleas made, or in the alternative by failing to provide sufficient reasoning for its full dismissal of the initial application for annulment.

Fundamentally, the Appellant submits that in adjudicating the present case, the General Court should have observed its own precedent judgment in of 28 May 2020, CK Telecoms UK Investments v Commission (T-399/16, EU:T:2020:217), in which it had set out a much more stringent standard of judicial review in merger cases than was applied here:

1. With its first ground of appeal — which is divided into two pleas — the Appellant claims that the General Court failed to perform a sufficient own substantive review of the pleas made in the application for annulment by confining itself to just checking whether the Commission had dealt with particular points in the first place and by not engaging in an own review of whether the evidence used was reliable and correctly interpreted and whether the conclusions drawn by the Commission were correct and sufficiently shown in evidence also from the General Court’s own point of view. The Appellant claims that contrary to applicable precedent judgments of 10 July 2018, Bertelsmann et Sony Corporation of America / Impala (C-413/06 P, EU:C:2008:392) and 28 May 2020, CK Telecoms UK Investments v Commission (T-399/16, EU:T:2020:217), the General Court failed to apply the correct substantive test for establishing a sufficient likelihood of a SIEC occurring post-merger on the product markets examined by the Commission.

2. With its second ground of appeal — which is divided into four pleas — the Appellant claims that the General Court erred in law and distorted evidence by wrongly upholding too narrowly defined definitions of several relevant product markets for flat steel products (in particular for auto HDG and laminated steel for packaging), for which the Commission had found a SIEC to be likely to occur following the notified merger.

3. With its third ground of appeal — which is divided into six pleas — the Appellant claims that the competitive assessments endorsed by the General Court regarding the assumed relevant markets for auto HDG and packaging steel are flawed due to the General Court wrongfully applying two mutually exclusive theories of harm in parallel (single dominance and non-coordinated effects in oligopolistic markets), by failing to define appropriate criteria for assuming Tata Steel to be an ‘important competitive force’ and regarding the assumed ‘closeness of competition’, by distorting the evidence regarding restraints posed by imports, by failing to find wrong HHI calculations to be relevant for the Commission’s decision making and by failing to fully adjudicate the pleas made in the application for annulment regarding these points.

4. With its fourth ground of appeal the Appellant claims that the General Court distorted evidence and did not observe its rights of defence by misinterpreting the plea made regarding a new theory of harm put forward by the Commission in para 1095 of the contested decision without having offered a prior opportunity for the Appellant to be heard on this point and while applying a wrong substantive test with regard to hypothetical market behaviour of ArcelorMittal as a major competitor which was decisively taken into consideration by the General Court in dismissing the initial plea.

5. With its fifth ground of appeal the Appellant claims that the General Court did not adjudicate on the seventh ground of the application for annulment due to having misconstrued the underlying plea which claimed that the Commission had distorted the evidence by basing statistical arguments on random and incomplete replies of third parties to requests for information, without ensuring absence of selection bias.

(1) Summary of Commission Decision of 11 June 2019 declaring a concentration incompatible with the internal market and the functioning of the EEA Agreement (Case M.8713 — Tata Steel/ThyssenKrupp/JV) (notified under document number C(2019) 4228); OJ 2021, C 24, p. 23.