Judgment of the General Court (Sixth Chamber) of 13 September 2010 – Éditions Jacob v Commission

(Case T-279/04)

Competition – Concentrations – French-language publishing – Decision declaring the concentration compatible with the common market subject to sale of assets – Action for annulment brought by an unsuccessful prospective purchaser – Duty to state reasons – Fraud – Error of law – Manifest error of assessment – Regulation (EEC) No 4064/89

1. Actions for annulment – Actionable measures – Concept – Measures producing binding legal effects – Preparatory measures – Not included – Commission decision to initiate in-depth examination of a concentration operation (Art. 230 EC; Council Regulation No 4064/89, Art. 6(1)(c)) (see para. 89)

2. Competition – Concentrations – Assessment of compatibility with the common market – Nature of control, single or joint, exercised over an undertaking to be taken into account – Criteria for assessment – Holding of assets operation prior to authorisation of the concentration by the Commission – Possibility of exercising a determinant influence over the business connected with the assets – None – Acquisition of assets with a view to their resale (Council Regulation No 4064/89, Arts 3 and 4) (see paras 116-118, 125, 132, 138-140, 142, 144, 150, 153)

3. Competition – Concentrations – Examination by the Commission – Operation carried out before being notified – Consequences – Possibility of the Commission declaring the operation incompatible with the common market – Possibility of the Commission revoking a decision declaring the concentration compatible – None – Failure to notify capable of being penalised by the imposition of a fine (Council Regulation No 4064/89, Arts 6 to 8 and 14) (see paras 156-161, 201-202)

4. Competition – Concentrations – Notification – Obligation – Scope – Holding of assets operation not constituting a concentration – Not included (Council Regulation No 4064/89, Arts. 1(1), 4(1) and (7)(1)) (see paras 171, 231-232)

5. Competition – Concentrations – Examination by the Commission – Revocation of a decision authorising a concentration operation – Criteria – Decision fraudulently obtained – Concentration operation classified as acquisition of shareholdings on a temporary basis – Requirement for demonstration that control acquired (Council Regulation No 4064/89, Arts 3(1)(b) and (5)(a) and 8(5)(a)) (see paras 191-194)

6. Acts of the institutions – Statement of reasons – Obligation – Scope – Decision to apply rules on concentrations between undertakings – Decision authorising a concentration operation – Scope (Council Regulation No 4064/89, Art. 8(2)) (see paras 226-228, 233-234)

7. Competition – Concentrations – Examination by the Commission – Economic assessments – Discretion – Judicial review – Limits (Council Regulation No 4064/89, Art. 2) (see paras 248-249)

8. Competition – Concentrations – Assessment of compatibility with the common market – Creation or strengthening of a dominant position – Evidence – Modification of the initial position of the parties on the affected markets – Consequences of a sale of assets – Overall turnover figures of the parties to the operation – Not included (Council Regulation No 4064/89, Arts 2(3) and 8(3)) (see paras 284-286, 288)

9. Competition – Concentrations – Examination by the Commission – Definition of the market in question – Criteria – Substitutability of products – Structure of supply and demand – Transversal effect of a concentration taken into account (Council Regulation No 4064/89) (see paras 302-306)

10. Competition – Concentrations – Assessment of compatibility with the common market – Point in time to be taken into consideration – Point at which the operation notified – No obligation to take into consideration the risk of agreements restricting competition being concluded following the concentration (Council Regulation No 4064/89, Art. 2) (see paras 326-327, 338)

11. Competition – Concentrations – Examination by the Commission – Commitments by the undertakings concerned to render the notified transaction compatible with the common market – Undertaking to sell assets – Selection criteria of the buyer – Current or potential competitor – Independence, financial resources and competences confirmed – Sale of assets to a financial buyer – Lawfulness (Council Regulation No 4064/89; Commission Communication on corrective measures admissible in accordance with Regulations Nos 4064/89 and 447/98, para. 49) (see paras 340-346)

Re:

APPLICATION for the annulment of Commission Decision 2004/422/EC of 7 January 2004 declaring a concentration to be incompatible with the common market and the functioning of the EEA Agreement (Case COMP/M.2978 – Lagardère/Natexis/VUP) (OJ 2004 L 125, p. 54).

Operative part

The Court:

1. Dismisses the action;