Parties

Grounds

Operative part



Parties

In Case T-332/09,

Electrabel, established in Brussels (Belgium), represented by M. Pittie and P. Honoré, lawyers,

applicant,

v

European Commission, represented by A. Bouquet and V. Di Bucci, acting as Agents,

defendant,

APPLICATION, principally, for annulment of Commission Decision C(2009) 4416 of 10 June 2009 imposing a fine for putting into effect a concentration in breach of Article 7(1) of Council Regulation (EEC) No 4064/89 (Case COMP/M.4994 — Electrabel/Compagnie nationale du Rhône) and, in the alternative, for annulment or reduction of the amount of the fine imposed on the applicant by that decision,

THE GENERAL COURT (Third Chamber),

composed of O. Czúcz (Rapporteur), President, I. Labucka and D. Gratsias, Judges,

Registrar: C. Kristensen, Administrator,

having regard to the written procedure and further to the hearing on 30 November 2011,

gives the following

Judgment

Grounds

Facts of the case

1. The applicant, Electrabel, is a company governed by Belgian law and active, essentially, in production, sale, trading and operational management of networks in the electricity and natural gas sectors. At the material time it was part of the Suez group, an industrial group active in the management of public utility services as a partner of local authorities, undertakings and individuals in the electricity, gas, energy services, water and public health sectors. Since 22 July 2008 it has formed part of the GDF Suez group, which came about as a result of the merger of the Gaz de France group with the Suez group. It carries out its activities in France through its subsidiary Electrabel France.

2. Compagnie nationale du Rhône (CNR) is a French public undertaking with the task of developing and managing the Rhône Valley under a concession granted by the French State and with a specific legal framework, as is apparent, in particular, from French Law No 80-3 of 4 January 1980 on CNR (JORF, 5 January 1980, p. 41). CNR produces and markets electricity. It also provides river engineering services in France and in 20 or so other countries. It is stated in its articles of association that it is a general-interest limited company controlled by the State under the same conditions as national public undertakings. It has a supervisory board and a management board.

3. French Law No 2001-1168 of 11 December 2001 establishing urgent measures for economic and financial reforms (JORF, 12 December 2001, p. 19703; ‘the Murcef Law’) provides in Article 21 that CNR is a limited company, the majority of whose capital and voting shares must be held by local or regional authorities and also by other legal persons governed by public law or by undertakings belonging to the public sector. Until 2003 CNR’s capital was held exclusively by public entities or public undertakings whose capital was at the time wholly owned by the State. Until that time CNR’s two largest shareholders were Société nationale des chemins de fer français (SNCF) and Électricité de France (EDF).

4. Within the framework of a project for the acquisition of the German company Energie Baden-Württemberg AG (‘EnBW’), EDF was required by the Commission of the European Communities to give a commitment to dispose of its shareholding in CNR, under the Commission Decision of 7 February 2001 declaring a concentration compatible with the common market and the EEA Agreement (Case COMP/M.1853 — EDF/EnBW) (OJ 2002 L 59, p. 1) (‘the EDF/EnBW Decision’).

5. On 24 June 2003 the applicant acquired shares in CNR representing 17.86% of the latter’s capital and 16.88% of its voting rights.

6. On 27 June 2003 EDF and the applicant signed a promise to sell and to purchase shares, under which EDF transferred to the applicant its entire shareholding in CNR’s capital.

7. On 24 July 2003 the applicant concluded with the Caisse des dépôts et consignations (CDC) a shareholders’ agreement (‘the Agreement’) within the framework of CDC’s acquisition of SNCF’s shareholding in CNR’s capital. Under that Agreement, in particular:

– the applicant was granted an option to sell and to purchase CNR’s shares in the event that the rule laid down in Article 21 of the Murcef Law should be repealed, giving the applicant a preferential right to acquire all or part of the shares of a public shareholder becoming available and also the shareholding of CDC;

– CDC and the applicant were to vote in concert in the general meeting and on the supervisory board in order to appoint the shareholders’ representatives on the supervisory board and the members of the management board of CNR;

– the applicant and CDC each had the right to object if the other party envisaged entering into a voting agreement with one or more other shareholders.

8. On 23 December 2003 the applicant came into possession of the shares held until then by EDF and by the Chamber of Commerce and Industry of Villefranche and Beaujolais (France), thus increasing its shareholding to 49.95% of the capital and 47.92% of the voting rights of CNR.

9. On 9 August 2007 the applicant contacted the Commission in order to obtain its opinion on the applicant’s acquisition of de facto sole control of CNR. A dialogue was initiated with the Commission’s services in order to determine whether there was indeed such control and to specify the information necessary in order to lodge a form of notification under Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (OJ 2004 L 24, p. 1). On 26 March 2008 the formal notification form (‘Form CO’) was lodged, in which the applicant stated that it had acquired de facto sole control of CNR in the course of 2007. By decision of 29 April 2008 (Case COMP/M.4994 — Electrabel/Compagnie national du Rhône) (‘the authorisation decision’) the Commission stated that it did not oppose that concentration and declared it compatible with the common market on the basis of Article 6(1)(b) of Regulation No 139/2004, while leaving open the question of the precise date on which the applicant had acquired de facto sole control of CNR.

10. On 17 December 2008 the applicant received a statement of objections, in which it was stated that the Commission had reached the provisional conclusion that the concentration between the applicant and CNR had been put in place on 23 December 2003 before being notified to the Commission and before being declared compatible with the common market, which constituted an infringement of Article 7(1) of Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings (corrected version OJ 1990 L 257, p. 13), as amended by Council Regulation (EC) No 1310/97 of 30 June 1997 (OJ 1997 L 180, p. 1).

11. On 13 February 2009 the applicant replied to the statement of objections.

12. On 11 March 2009 a hearing took place.

13. On 10 June 2009 the Commission adopted Decision C(2009) 4416 imposing a fine for putting into effect a concentration in breach of Article 7(1) of Regulation No 4064/89 (Case COMP/M.4994 — Electrabel/Compagnie nationale du Rhône) (‘the contested decision’).

14. The operative part of the contested decision is worded as follows:

‘Article 1

By putting into effect a concentration with a Community dimension in the period 23 December 2003 to 9 August 2007, before it was notified and before it was declared compatible with the common market, [the applicant] has infringed Article 7(1) of [Regulation No 4064/89].

Article 2

A fine of EUR 20 000 000 is hereby imposed on [the applicant] for the infringement referred to in Article 1.

Article 3

The fine imposed in Article 2 shall be paid in euro within three months …’

Procedure and forms of order sought

15. By application lodged at the Court Registry on 20 August 2009, the applicant brought the present action.

16. The applicant claims, in substance, that the Court should:

– principally, annul the contested decision in its entirety;

– in the alternative, annul Articles 2 and 3 of the contested decision or, at least, reduce the amount of the fine imposed on the applicant in Article 2;

– order the Commission to pay the costs.

17. The Commission contends that the Court should:

– dismiss the action;

– order the applicant to pay the costs.

18. Upon hearing the report of the Judge-Rapporteur, the Court (Third Chamber) decided to open the oral procedure and, in the context of the measures of organisation of procedure provided for in Article 64 of the Rules of Procedure of the Court, put a number of written questions to the parties and requested the applicant to produce certain documents. The parties complied with those requests within the prescribed period.

19. The parties presented oral argument and answered the oral questions put to them by the Court at the hearing on 30 November 2011.

Law

20. In support of the action, the applicant formulates a number of principal claims and a number of alternative claims. In support of the principal claims, the applicant puts forward two pleas in law, whereby it seeks annulment of the contested decision in its entirety. The first plea alleges infringement of Article 7(1) of Regulation No 4064/89 and infringement of Article 253 EC in that the Commission did not correctly characterise the infringement and in that the contested decision contains a contradiction in the grounds. The second plea alleges infringement of Article 3(3) and Article 7(1) of Regulation No 4064/89 and breach of the principle that the Commission is required to comply with the rules which it has imposed on itself. In support of the alternative claims, the applicant puts forward two pleas whereby it seeks annulment of the fine or a reduction of the amount of the fine. The third plea alleges infringement of Article 1 of Council Regulation (EEC) No 2988/74 concerning limitation periods in proceedings and the enforcement of sanctions under the rules of the European Economic Community relating to transport and competition (OJ 1974 L 319, p. 1), in that the Commission’s power to impose a penalty on the applicant was time-barred. The fourth plea alleges infringement of Article 14(2) of Regulation No 4064/89 and breach of the principles of proportionality, sound administration and legitimate expectations.

1. The principal claims, seeking annulment of the contested decision

21. The Court considers it appropriate to examine the second plea before considering the first plea.

Second plea, alleging infringement of Article 3(3) and Article 7(1) of Regulation No 4064/89 and breach of the principle that the Commission is required to comply with the rules which it has imposed on itself

22. The applicant claims, in essence, that the Commission made a number of errors in concluding that the applicant had acquired de facto sole control of CNR on 23 December 2003.

23. The Commission denies that its analysis is vitiated by errors.

24. It must be borne in mind that Article 3(1) of Regulation No 4064/89 defines a concentration as the merger of two or more previously independent undertakings or the acquisition of direct or indirect control, whether by purchase of securities or assets, by contract or by any other means, of the whole or parts of one or more undertakings by one or more persons already controlling at least one undertaking or by one or more undertakings. Further explanation of that provision is given in Article 3(3), which states that control arises from rights, contracts or any other means which, either separately or in combination and having regard to the considerations of fact or law involved, confer the possibility of exercising decisive influence on the activity of an undertaking.

25. The applicant’s complaints relate in particular to recitals 40 to 173 to the contested decision, where the Commission explains the circumstances of fact and of law which led it to take the view that the applicant had acquired sole control of CNR for the purposes of Article 3(3) of Regulation No 4064/89 with effect from 23 December 2003 and that, in particular, a stable change of control had taken place on that date. The Commission concludes at recital 174 to the contested decision that the applicant put into effect a concentration with a Community dimension from 23 December 2003, in breach of Article 7(1) of Regulation No 4064/89, which provides that a concentration which comes within the scope of that regulation is not to be put into effect either before it has been notified or before it has been declared compatible with the common market.

26. In the contested decision the Commission puts forward six factors on which it bases its findings:

– on 23 December 2003, when it acquired EDF’s shareholding, the applicant became by far the main shareholder in CNR and was assured of having a de facto absolute majority at the general meeting of that undertaking, given, in particular, its 49.95% share of CNR’s capital, representing 47.92% of the voting rights, the very di spersed nature of the shareholders other than CDC (which had 22% of the capital and 20% of the voting rights), made up of almost 200 local authorities and other local public entities, with 16.82% of the capital, and the shareholder attendance rates at CNR’s general meetings in the three preceding years (recitals 41 to 77 to the contested decision);

– since 2003 the applicant had held an absolute majority on CNR’s management board and also had the means to keep that majority (recitals 78 to 86 to the contested decision);

– the Murcef Law did not prevent the applicant from acquiring control over CNR (recitals 87 to 93 to the contested decision);

– since 2003, having taken over the industrial role played by EDF within CNR, the applicant had been CNR’s only industrial shareholder and had been playing a central role in the latter’s operational management (recitals 94 to 126 to the contested decision);

– since 2004 CNR had been regarded de facto as forming part of the Suez group both by the managers of CNR and by the managers of Suez (recitals 127 to 158 to the contested decision); and

– the applicant had a preferential right to subscribe to CNR’s other shares (recitals 159 to 164 to the contested decision).

27. The applicant’s second plea is divided into three parts. In the first part, it claims that the Commission failed to take account of a fundamental characteristic of CNR. In the second part, it maintains that the Commission applied incompletely and incorrectly the test set out in its ‘Guidelines’ and made a number of errors affecting the assessment of the factor relating to the holding of a majority at the general meetings of CNR. Last, in the third part, the applicant refers to three errors affecting the other factors mentioned by the Commission in the contested decision, notably (i) the fact that the applicant had held a majority on CNR’s management board since 2003; (ii) statements made by managers of CNR and the Suez group; and (iii) the existence of a preferential right of subscription to certain CNR shares.

28. The Commission observes, first of all, that the applicant’s second plea is ineffective in that it is directed against the actual existence of the infringement. The applicant does not dispute the existence of an infringement, but at most its duration, which cannot justify the annulment of the contested decision in its entirety. The Commission refers to certain assertions made by the applicant in a draft Form CO of 17 January 2008 and also to the fact that, by having notified the concentration, the applicant acknowledges in any event that it acquired de facto sole control over CNR without having been authorised to do so. In the Commission’s submission, contesting the duration of the infringement may possibly be relevant to the setting of the amount of the fine, but not to the characterisation of the facts constituting the infringement.

29. In that regard, the applicant asserts that, in notifying the concentration during 2007, it sought to comply with the obligation to notify the concentration arising under Article 4 of Regulation No 4064/89.

30. That article concerns the obligation to give prior notification of concentrations with a Community dimension. Article 4(1) states that concentrations with a Community dimension are to be notified to the Commission not more than one week after the conclusion of the agreement, or the announcement of the public bid, or the acquisition of a controlling interest. It must be held that the applicant is correct in asserting that the fact of having notified the concentration in accordance with that provision cannot be regarded, in infringement proceedings such as those at issue in the present case, as recognition on the applicant’s part of the existence of an infringement of the obligation to suspend the concentration laid down in Article 7(1) of Regulation No 4064/89.

31. In the field of competition law, where there is a dispute as to the existence of an infringement, it is incumbent on the Commission to prove the infringements found by it and to adduce evidence capable of demonstrating to the requisite legal standard the existence of the circumstances constituting an infringement (see, by analogy, Case C-185/95 P Baustahlgewebe v Commission [1998] ECR I-8417, paragraph 58; Joined Cases C-2/01 P and C-3/01 P BAI and Commission v Bayer [2004] ECR I-23, paragraph 62; and Case T-201/04 Microsoft v Commission [2007] ECR II-3601, paragraph 688). In order to do so, it must produce sufficiently precise and coherent evidence to substantiate the firm conviction that the alleged infringement did take place (see, to that effect and by analogy, Joined Cases 29/83 and 30/83 CRAM and Rheinzink v Commission [1984] ECR 1679, paragraph 20; Joined Cases C-89/85, C-104/85, C-114/85, C-116/85, C-117/85 and C-125/85 to C-129/85 Ahlström Osakeyhtiö and Others v Commission [1993] ECR I-1307, paragraph 127; and Joined Cases T-185/96, T-189/96 and T-190/96 Riviera Auto Service and Others v Commission [1999] ECR II-93, paragraph 47).

32. It was therefore incumbent on the Commission to produce in the contested decision sufficiently precise and coherent evidence to establish that there had been an infringement of Article 7(1) of Regulation No 4064/89.

33. Admittedly, the factors on which the Commission relies in support of its preliminary argument, such as the fact that the applicant notified the concentration or made assertions in a draft Form CO, and also the question whether the Commission can legitimately rely before the Court on the assertions made in such a draft form, may be examined, where appropriate, from the aspect of the sufficiency of the proof of the existence of an infringement. Indeed, proceedings before the Court are governed by the principle of the free taking of evidence, the only relevant criterion for assessing the evidence produced being its credibility (Joined Cases T-67/00, T-68/00, T-71/00 and T-78/00 JFE Engineering and Others v Commission [2004] ECR II-2501, paragraph 273).

34. However, such arguments cannot be put forward in order to deny the applicant the opportunity to challenge the component elements of the infringement in respect of which the burden of proof is borne by the Commission, such as, in particular, its duration.

35. As regards, in particular, the Commission’s reference to an assertion made by the applicant in a draft Form CO dated 17 January 2008, to the effect that sole control had appeared to exist since 2004, whereas in the definitive form the applicant claimed to have acquired control during 2007, first, it must be observed that, while an undertaking’s express or implied acknowledgement of matters of fact or of law during the administrative procedure before the Commission may constitute additional evidence when determining whether an action is well founded, it cannot restrict the very exercise of a natural or legal person’s right to bring proceedings before the Court under the fourth paragraph of Article 230 EC (see, to that effect, Case C-407/08 P Knauf Gips v Commission [2010] ECR I-6371, paragraph 90). Second, the reference by the Commission to the draft Form CO is made purely for the sake of completeness at recital 166 to the contested decision, after it has found at recital 165 that the infringement had existed since 23 December 2003. In those circumstances, the Commission’s argument that the applicant’s plea is ineffective, on the ground that it acknowledged the infringement in a draft Form CO, must be rejected and there is thus no need to rule on the applicant’s argument that the Commission cannot rely before the Court on information in a draft Form CO since that document is lodged on a confidential basis.

36. Last, even though the applicant merely disputes the duration of the infringement, the acceptance of its arguments could lead to the partial annulment of Article 1 of the contested decision (see, to that effect and by analogy, Case T-38/02 Groupe Danone v Commission [2005] ECR II-4407, paragraphs 211 to 213), as, moreover, the Commission acknowledges.

37. In those circumstances, the plea cannot be rejected as ineffective.

38. The Court considers it appropriate to examine first of all the arguments raised in the second part of the second plea, before analysing the first and third parts of that plea. Furthermore, the first part of the plea and the first complaint put forward in the context of the third part will be examined together, as the arguments on which they are based are closely connected.

Second part of the second plea, alleging incomplete and incorrect application of the test laid down by the Commission in its ‘Guidelines’, and errors affecting the assessment of the factor relating to the holding of a majority at CNR’s general meetings

39. When it relies on errors of assessment in the application of the ‘Guidelines’, the applicant is referring to the application of the Commission notice on the concept of concentration under Regulation No 4064/89 (OJ 1998 C 66, p. 5; ‘the Notice on the concept of concentration’) and the Commission Consolidated Jurisdictional Notice under Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings (OJ 2008 C 95, p. 1; ‘the Consolidated Jurisdictional Notice’). The applicant maintains, in essence, that the Commission applied incompletely and incorrectly the test relating to the acquisition of de facto sole control by a minority shareholder recommended in those notices and that it made a number of errors affecting the assessment of the factor relating to the holding of a majority in CNR’s general meetings by applying the test in an essentially quantitative manner whereas those notices also make clear that, for the purpose of determining whether an operation constitutes a concentration, it is necessary to carry out a prospective and global analysis and to apply qualitative rather than quantitative criteria.

40. In that regard, it should be observed that, as stated at recital 53 to the contested decision, the applicant cannot rely on the Consolidated Jurisdictional Notice. It is true that point 2 of the Consolidated Jurisdictional Notice states that that notice replaces the Notice on the concept of concentration. However, although point 1 of the Consolidated Jurisdictional Notice states that ‘[t]he purpose of this Notice is to provide guidance as to jurisdiction issues under’ Regulation No 139/2004, it follows from Article 26(2) of that regulation, which is referred to in the contested decision, that Regulation No 4064/89 is to continue to apply to any concentration which was the subject of an agreement or announcement or where control was acquired within the meaning of Article 4(1) of that regulation before 1 May 2004. In the present case, the Commission, which meant to penalise the putting into effect of a concentration in breach of Article 7(1) of Regulation No 4064/89, considered, in fact, that the applicant had acquired de facto sole control of CNR on 23 December 2003. Since the purpose of the Notice on the concept of concentration is, in the words of point 1, to provide guidance as to how the Commission interprets the term ‘concentration’ used in Article 3 of Regulation No 4064/89, it must therefore be held that the applicant can rely in the present case only on the Notice on the concept of concentration. That observation, however, has no impact on the analysis to be undertaken in the context of the present part of the plea. As the parties acknowledge, the wording of the two notices is not really substantially different with respect to the test proposed for the purpose of establishing the existence of de facto sole control by a minority shareholder. Like the Consolidated Jurisdictional Notice, the Notice on the concept of concentration states that, in determining whether an operation constitutes a concentration, the Commission applies qualitative rather than quantitative criteria, focusing on the concept of control (point 4).

41. Furthermore, and clearly, as the applicant observes and the Commission does not dispute, the Commission is bound by notices which it adopts in the area of control of concentrations, provided that they do not depart from the rules of the Treaty and of Regulation No 4064/89 (see, by analogy, Case T-282/06 Sun Chemical Group and Others v Commission [2007] ECR II-2149, paragraph 55).

42. Last, it must be made clear, also as a preliminary point, that even though the applicant makes reference to manifest errors of assessment on the Commission’s part, the Commission’s analysis of the circumstances in which a concentration was put into effect is amenable to a full review by the Court. Indeed, the concept of concentration provides the basis for the Commission’s powers under Regulation No 4064/89 (see, by analogy, Case T-411/07 Aer Lingus Group v Commission [2010] ECR II-3691, paragraph 62). Nor does the Commission claim that it has a discretion in that respect.

43. The Court will examine in turn, in the light of those principles, the three alleged errors of assessment by the Commission when it considered that on 23 December 2003, when the applicant acquired EDF’s shareholding, the applicant became by far the main shareholder in CNR and that it was assured of having an absolute majority in CNR’s general meeting.

44. In the first place, the applicant claims that the voting structure at general meetings in the years preceding December 2003 is irrelevant. It maintains that the Commission failed to take account of the fact that the main shareholder at the time was EDF, a State-controlled company. The low rate of shareholder attendance at general meetings during the three years preceding the applicant’s purchase of EDF’s shares is explained by the trust which the other public shareholders placed in EDF to protect their interests. The applicant further notes that the fact that, since the EDF/EnBW Decision, EDF was no longer authorised to vote at CNR’s general meetings, and that it had appointed a trustee to vote on its behalf, has no effect on the small shareholders’ trust.

45. It must be observed that the analysis carried out by the Commission in the contested decision (recitals 41 to 77) is based on the presence and conduct of shareholders at general meetings held during the three years preceding 23 December 2003, which it considers to be the date on which the applicant took de facto control of CNR, and infers from those factors what the position would be at future general meetings of CNR.

46. In principle, that approach is consistent with the Notice on the concept of concentration and with Article 3(3) of Regulation No 4064/89. It serves to determine whether the applicant had the capacity to exercise decisive influence over CNR from the end of December 2003 and, as is apparent from the Notice on the concept of concentration, the presence of shareholders at general meetings of the target company is a major factor in that regard.

47. Indeed, point 14 of the Notice on the concept of concentration states that sole control may be acquired with a ‘qualified minority’, which may be established by the circumstances of law or of fact. As regards de facto sole control exercised by a minority shareholder, that notice states at point 14 that such a situation arises, for example, where the shareholder is highly likely to achieve a majority at the general meeting because the remaining shareholders are widely dispersed. It is then unlikely that all the smaller shareholders will be present or represented at the shareholders’ meeting. The determination of whether or not sole control exists in a particular case is based on the evidence resulting from the presence of shareholders in previous years. Where, on the basis of the number of shareholders attending the shareholders’ meeting, a minority shareholder has a stable majority of the votes at this meeting, then the minority shareholder in question is taken to have sole control of the undertaking.

48. The Notice on the concept of concentration therefore clearly recommends an analysis of the presence of shareholders at shareholders’ meetings in preceding years in order to determine the future situation. That is precisely the approach which the Commission took in the contested decision. In that regard, the Commission correctly submits that the argument that it is necessary to observe the situation at general meetings for several years after an increase in capital which makes de facto sole control highly likely, in order to confirm that such control does in fact exist, is not based on a correct interpretation of that notice and would lead to a system of ‘de facto control on a trial basis’, contrary to the system of notification and prior authorisation introduced by Regulation No 4064/89.

49. It must be made clear, however, that the applicant’s complaint as to the irrelevance of the voting structure at shareholders’ meetings before December 2003 relates in reality not to the fact that the period 2000 to 2003 was taken into account but to the role played by EDF during that period. The applicant maintains, in essence, that it waited more than three years before notifying the operation because it could not be highly likely at the end of 2003 that it would have a majority in future at CNR’s general meetings. In the applicant’s submission, it was necessary to observe events for three years before a majority became highly likely.

50. As regards the determination of the starting date of the breach of the obligation to suspend the operation in the present case, the applicant correctly maintains that there was no concentration and therefore no infringement of Article 7(1) of Regulation No 4064/89 if it was not highly likely in December 2003 that the applicant would obtain control at future general meetings. Nor, in such circumstances, would there be any obligation to notify.

51. As regards that high likelihood, the Commission found in the contested decision that the applicant’s assurance of being able to obtain an absolute majority at general meetings was achieved on 23 December 2003, the date on which it acquired EDF’s shareholding (representing 22.22% of the capital and 20% of the voting rights), increasing its shareholding from 17.86% of the capital to 49.95% and thus becoming CNR’s main shareholder and representing 47.92% of the voting rights. That assurance came, in particular, from the very dispersed nature of the shareholders other than CDC (which held 22% of the capital and 20% of the voting rights), since almost 200 local authorities and other local public entities then held 16.82% of the capital (recital 41). At recital 45 to the contested decision the Commission gave a projection of the proportion of voting rights at general meetings which a shareholder with a stake of 47.92% of the voting rights on 23 December 2003 would hold, taking into account the attendance rates of shareholders observed at general meetings in the four years preceding the acquisition of EDF’s shareholding. The voting rights held by such a shareholder would always have been greater than 60%.

52. In response to the arguments which the applicant put forward in its reply to the statement of objections, disputing the voting structure at general meetings during the period 2000 to 2003, the Commission further stated at recitals 57 and 58 to the contested decision that in order for the applicant to have an absolute majority at general meetings the rate of shareholder attendance had to be below 95.84% and that, in view of the rate of attendance during those years, which was well below that threshold (fluctuating between 43% and 76.6%), it was highly improbable that the applicant would not have an absolute majority at the general meetings of CNR after 23 December 2003.

53. The applicant objects to that analysis, relying, first, on the trust which the small shareholders placed in EDF during that period, which explained the low attendance rate at general meetings, so that the Commission could not draw any consequences for the future from those attendance rates, and, second, on the error of analysis on the Commission’s part as to the role of the trustee exercising EDF’s votes in finding in the contested decision that EDF had no longer exercised its prerogatives as a shareholder since 1 April 2001.

54. As for the first of those elements, the Commission is correct to maintain at recital 61 to the contested decision and before the Court that there is no evidence that the small shareh olders placed such trust in the main shareholder at the time, EDF, a company controlled by the French State, which, in the applicant’s submission, explains the low shareholder attendance rates at general meetings during the three years that preceded the transfer of EDF’s shares to the applicant. That argument cannot therefore call into question the relevance of the attendance rates between 2000 and 2003 to the Commission’s analysis.

55. As for the second element, relating to an alleged error of analysis on the Commission’s part as to the role of the trustee exercising EDF’s voting rights following the EDF/EnBW Decision, the Commission found at recital 61 to the contested decision that EDF had not exercised its shareholder’s rights at the general meetings and on the management board since 1 April 2001. Contrary to the applicant’s contention, that analysis is not incorrect. It is based on the fact that the commitments given in the context of the EDF/EnBW Decision provided for the exercise of EDF’s voting rights at CNR’s general meetings and meetings of the management board by a trustee acting in complete independence of the parties from 1 April 2001.

56. Those commitments provide in Part A, concerning relations with CNR, that, ‘[g]iven that EDF will no longer be involved in CNR’s commercial policy and market conduct, it undertakes to renounce the exercise of its voting rights in CNR and to withdraw its representative from the CNR management board by 31 March 2001’. It is also stated that ‘[a] trustee will act as caretaker of EDF’s shares in CNR’. In addition, it is stated at the end of Part C of those commitments that the trustee will act as an independent unrelated third party. In those circumstances, the applicant’s argument that the small shareholders could continue to consider during that period that EDF’s shares remained in the public sector is unconvincing, as the trustee’s independence meant that it could not be assumed that only the interests of the public sector would be represented.

57. The first complaint must therefore be rejected.

58. In the second place, the applicant claims that the Commission erred in considering that on 23 December 2003 the applicant had the mathematical certainty of obtaining an absolute majority in CNR’s general meetings on the sole ground that it would have taken a shareholder attendance rate of 95.84% to defeat its proposals. In support of that assertion, the applicant relies, in particular, on a consistent 10% increase in the shareholder attendance rate at the general meetings preceding the transaction and the Commission Decision of 20 December 2006 of non-opposition to a notified concentration (Case COMP/M/4336 — MAN/Scania (‘the MAN/Scania Decision’). The applicant observes that in that case the Commission considered, on the question whether Volkswagen controlled MAN, that an increase in the shareholder attendance rate at general meetings in the order of 20% was possible owing to the increased vigilance of the other minority shareholders vis-à-vis Volkswagen after it had increased its shareholding in MAN’s capital.

59. As for the fluctuation in shareholder attendance rates at CNR’s general meetings in the period 2000 to 2003, the applicant claims that the attendance rate grew consistently by around 10% at each new general meeting and that an increase of 20% (from 76.6% in November 2002 to 95.84% after December 2003) was therefore not unlikely.

60. It must be held that that analysis is based on a selective presentation of the facts. As the Commission contends, the applicant fails to take into account the general meetings at which shareholder attendance fell. It follows from Table 2 in and footnote 31 to the contested decision that shareholder attendance rates at CNR’s ordinary, extraordinary or combined general meetings during the period 2000 to 2003 were 72.2% (27 June 2000), 43% (21 December 2000), 55.2% (28 June 2001), 62.9% (21 June 2002), 76.6% (ordinary meeting of 28 November 2002), 72.6% (extraordinary meeting of 28 November 2002), 67% (ordinary meeting of 25 June 2003) and 68.5% (extraordinary meeting of 25 June 2003). The Commission’s assertion before the Court that, notwithstanding a heavy decline followed by a partial recovery, the shareholder attendance rate remained stable overall, with a fall of 3.7% during the period 2000 to 2003, is therefore not incorrect.

61. Table 2 in the contested decision also shows that even when shareholder attendance at the general meetings was at its highest (76.6% at the general meeting of 28 November 2002), a shareholder, such as the applicant after the end of December 2003, who held 47.92% of the voting rights was assured of having the majority of the voting rights of shareholders present or represented.

62. Likewise, the applicant’s argument that the shareholder attendance rate might increase by 20% after 2004 is unconvincing, since the increase found during the period 2000 to 2003 was not consistent, as evidenced by, for example, the drop in shareholder attendance at the general meeting in June 2003, owing to the absence of SNCF. For the sake of completeness, it should be noted that even if data relating to attendance at the general meetings held after 2003 are not appropriate to establish that the applicant was highly likely to be able to impose its decisions from 23 December 2003, they confirm a distinct increase in attendance after that date. None the less, as the Commission states, that increase may be explained by the presence of CDC, which acquired SNCF’s 20% shareholding. In any event, as Table 3 in the contested decision shows, even with the highest attendance rate at the general meeting in June 2006, the applicant still had a majority of votes on its own.

63. As regards the MAN/Scania Decision, cited at paragraph 58 above, moreover, it must be borne in mind that neither the Commission nor, a fortiori, the Court is bound in the present case by the findings of fact and the assessments contained in a previous decision of the Commission (see, to that effect, Case T-210/01 General Electric v Commission [2005] ECR II-5575, paragraphs 118 to 120, and Sun Chemical Group and Others v Commission , paragraph 41 above, paragraph 88 and the case-law cited).

64. Furthermore, the Commission is correct to distinguish the situation of Volkswagen, at issue in the MAN/Scania Decision, from that of the applicant in the present case. The applicant relies on the MAN/Scania Decision as an example of a case in which the Commission found that shareholder attendance at the general meetings was likely to increase by 20%. In that case, Volkswagen held 21.6% of the voting rights in MAN and the Commission had considered it appropriate to examine whether that shareholding gave rise to de facto control. It accepted MAN’s argument that a 20% rise in the attendance rate at its general meetings, increasing that rate from 40% to 60%, was likely, thus precluding control by Volkswagen.

65. In the present case, however, at the end of 2003 the applicant held 47.92% of the voting rights, more than twice the amount held by Volkswagen. In order to achieve a 95.84% attendance at a general meeting and thus to defeat the applicant’s proposals, it would have been necessary to have an increase in shareholder attendance rate at CNR’s general meetings of more than 20%, even by comparison with the highest attendance rates recorded between 2000 and 2003. As the Commission emphasises, moreover, a shareholder attendance rate of 95.84% is very high, whereas the shareholder attendance rate necessary to potentially block Volkswagen was not even 60%.

66. The second complaint must therefore also be rejected, since the Commission was entitled to consider, at recital 58 to the contested decision, that the applicant could expect to obtain an absolute majority at future general meetings, with 47.92% of the voting rights since 23 December 2003, as a shareholder attendance rate equal to or above 95.84% was highly improbable.

67. In the third place, the applicant maintains that the Commission’s assessment denying the existence of structural and strategic links between CNR’s public shareholders is flawed.

68. This criticism concerns the fact that the Commission took into account the widely dispersed nature of the remaining shareholders, as is apparent from, in particular, recitals 45 and 57 to the contested decision.

69. In the applicant’s submission, the Commission ought to have taken a less categorical approach and to have recognised that blockage could potentially materialise within CNR. That potential blockage could have been the consequence of a conflict between CNR’s general-interest mission and its commercial objective, from a public shareholding which was dispersed but sought to ensure that a balance was struck between the general-interest objectives and CNR’s strategy, and from a risk of the absence of a majority in general meetings in the light of the structure of the votes cast. The Commission ought also to have assessed the existence of control retrospectively and on the basis of events which had occurred after 2003.

70. As regards the alleged existence of structural and strategic links between CNR’s public shareholders, the table showing changes in the participation of shareholders with more than 2% of the capital of CNR and their share of voting rights at general meetings since 2001, at recital 22 to the contested decision, shows that from the end of 2003, apart from CDC, which held 29.80% of the voting rights at that time, only three public shareholders had more than 2% of voting rights, with a joint holding of 15.98% of the voting rights held by those three. Given that low rate and the wide dispersion of the remaining part of the voting rights within CNR (footnote 23 to the contested decision), it is scarcely credible that a sudden increase in participation in general meetings by public shareholders concerned about the representation of their interests could have had a real impact on a majority vote.

71. Indeed, it seems, rather, that only a ‘coalition’ organised by CDC and including, moreover, 18.12% of the votes dispersed among the minority public shareholders could have defeated the applicant in votes in the general meeting after 23 December 2003.

72. The Commission relies in that regard, and correctly, on the role of the Agreement. As stated at paragraph 7 above, the applicant had entered into the Agreement in order to be assured of a majority within CNR’s management board. It must be noted that, from August 2003, CDC held 29.80% of the voting rights, so that a total of 77.72% of the voting rights at general meetings was held by the applicant and CDC.

73. The Agreement stipulates that ‘if one of the parties envisages concluding a voting agreement with one or more other shareholders it shall obtain the prior consent of the other party on the scope of that agreement and the identity of the other shareholder(s) with whom it envisages concluding such an agreement’ (Article 10), so long as the applicant did not hold the majority on the management board.

74. In answer to a written question from the Court, the applicant submitted a copy of the Agreement and also further explanations of the interpretation of Article 10. It must be concluded that the scope of that provision is unclear. The parties are agreed, however, that it related only to a voting arrangement concerning specific decisions adopted at general meetings, namely decisions appointing members of the management board and the supervisory board. Even if the Agreement related only to a voting agreement limited in that way, however, it seems unlikely that CDC would have objected to the applicant’s proposals during the general meetings of CNR following the conclusion of the Agreement on 24 July 2003.

75. That analysis confirms that it was unlikely that the applicant could be afraid of not obtaining a majority at CNR’s general meetings after December 2003. Such a situation could have arisen only if the shareholder attendance had been equal to or greater than 95.84% at the general meetings and if the public shareholders, including CDC, had adopted a common position against the applicant.

76. It is therefore only in the unlikely situation, which was rejected at recital 72 to the contested decision, that such conduct on CDC’s part might be considered to have been foreseeable by the applicant on 23 December 2003 that it is relevant to examine the structural and strategic links between CNR’s public shareholders.

77. In that regard, the argument which the applicant bases on the de facto existence of common interests between those shareholders owing to the inclusion of a general-interest mission in CNR’s articles of association is unconvincing. It is necessary to examine the actual existence of such common interests. However, the applicant puts forward no firm evidence to substantiate its argument.

78. If reference is made to the content of the minutes of the extraordinary general meeting held on 25 June 2003, on which the applicant relies, it appears that, if the local authorities desired that CNR’s strategy should take the general interest into account, that would not necessarily prefigure an agreement on the definition of the actual methods of that strategy. Thus, as regards the election of the members of the supervisory board, the representative of a local authority asserts that, under the ‘plan of representation of local authorities on the management board’ proposed by the French Government, ‘CNR will be represented only by local authorities south of Montélimar, a geographic representation which completely ignores the important interests of local authorities in the north’. The minutes also record the existence of a shareholders’ agreement between some local authorities and a consultative committee consisting of other local authorities. The vice-president of the general council of Haute-Savoie (France) states, moreover, that ‘the decision to be taken does not bode well for the functioning of the public shareholders’ agreement’.

79. On the basis of the evidence in the file, it is therefore difficult to show the definite existence in December 2003 of strong and unfailing links between the public shareholders, just as it is impossible to show the complete absence of such links. As a result, those arguments are not sufficiently substantiated.

80. Last, the Commission devotes several recitals (recital 65 et seq.) to refuting the applicant’s argument that the expectation of a significant reaction by the other public shareholders to the increase in the applicant’s proportion of CNR’s capital was all the more plausible in view of their links and their common strategic interests. In the context of that discussion, both parties rely on circumstances after 2003 to support their viewpoints. However, the obligation to suspend the concentration would arise only if a lasting change of control did in fact take place on 23 December 2003. The existence of a concentration subject to Regulation No 4064/89 must be examined on the basis of data existing in December 2003. Even if it cannot be precluded that data relating to the period after December 2003 might be relevant for the purpose of confirming the reality of the infringement with respect to its duration, they must be disregarded at this stage of the analysis, where the issue is whether it was highly likely at the end of 2003 that the applicant would be able to impose its decisions on CNR in the future.

81. In conclusion, also taking account of the elements set out in the contested decision concerning the structure of CNR’s shareholders and relating to the Agreement, it must be concluded that the applicant has failed to adduce any evidence to call into question the first factor mentioned at paragraph 26 above, according to which on 23 December 2003 it was highly likely that the applicant would obtain a majority at general meetings, even without holding the majority of the voting rights. The second part of the second plea must therefore be rejected.

First part of the second plea, alleging omission of a fundamental characteristic of CNR, and first complaint in the third part of the second plea, alleging an error affecting the factor relating to the holding of a majority by the applicant within CNR’s management board

82. The applicant claims that the Commission made an error of assessment in failing to take into consideration in the contested decision all the elements of fact relating to the special legislative framework, in derogation from the rules applicable to limited companies, which applies to CNR. In that regard, the applicant relies, in essence, in the first part of the second plea, on a number of circumstances relating to the fact that CNR is, according to Article 7 of Law No 80-3, subject to the control of the French State under the same conditions as national public companies, matters which the Commission did not sufficiently take into account. In the third part of the second plea, the applicant maintains, first, that its power to define the composition of CNR’s management board was more limited than was found in the contested decision, as the fact that since 8 July 2003 two of the three members of the management board were appointed by the applicant was more a consequence of the influence of the State, and, second, that it had only 3 representatives out of 13 on the supervisory board. In the context of the first part of the second plea, the applicant adds that the Commission did not take sufficient account of the significance of the Murcef Law.

83. The Commission disputes the applicant’s analysis and questions the admissibility of certain arguments and factual elements submitted by the applicant for the first time before the Court even though the applicant was aware of them at the stage of the administrative procedure.

84. Those complaints concern the second and third factors identified by the Commission (paragraph 26 above), relating, respectively, to the fact that in 2003 the applicant had an absolute majority on the management board and the means to keep that majority and the fact that the Murcef Law did not prevent the applicant from acquiring control of CNR. They relate rather to qualitative aspects of the acquisition of control to which the Notice on the concept of concentration refers in point 4 as constituting relevant factors for the purpose of determining whether a transaction constitutes a concentration, as was observed at paragraph 40 above.

85. The applicant’s arguments relate, first, to the French State’s influence on the governance of CNR (the composition and role of the management board and the supervisory board, Government commissioners, State controller) and, second, to the impact of the Murcef Law.

– The French State’s influence on the governance of CNR (composition and role of the management board and the supervisory board, Government commissioners, State controller)

86. At recitals 78 to 86 to the contested decision the Commission considered that one of the factors indicating the acquisition of sole control in December 2003 was that the applicant had had an absolute majority on CNR’s management board since 2003 and also the means to keep that majority. In support of that argument, first, the Commission observed that the rules on the appointment of members of the management board guaranteed the presence of two representatives of the applicant out of the three persons comprising that essential body, which managed CNR’s activities and determined its commercial policy, since CDC and the applicant had a blocking minority on the supervisory board, the body that decided the appointment of members of the management board (recitals 78 and 83). In that regard, the Commission also relies on the fact that, from 8 July 2003, and without interruption thereafter, of the three members comprising the management board, two effectively represented the applicant, which the applicant did not dispute either in its reply to the statement of objections or at the hearing (recital 83). Second, the Commission considered that the fact that the supervisory board had to approve certain decisions proposed by the management board was irrelevant, since the measures concerned were not such as to enable the supervisory board to exercise decisive influence on CNR’s strategy (recitals 79 and 80). In relation to the latter factor, the Commission added, for the sake of completeness, at recital 81 that in the event of a conflict between those two bodies the dispute would be resolved by the general meeting, in which the applicant was in a position to ensure that its views would prevail.

87. The applicant puts forward a number of arguments to challenge that analysis.

88. In the first place, the applicant disputes the Commission’s analysis with respect to the situation of control within the management board. It claims, in particular, that the appointment of its two representatives as members of the management board on 8 July 2003 was made on the recommendation of the Government commissioners and not as a result of the expected implementation of the Agreement after that date. In the applicant’s submission, that factor, far from demonstrating that it had de facto sole control of CNR since 23 December 2003, tends rather to show that during 2003 CNR was always controlled by the French public authorities by virtue of their supervisory power.

89. In that regard, first of all, the Court must reject the Commission’s argument that this is an element of fact raised for the first time in the application. As the applicant correctly submits, the information relating to the appointment, on the recommendation of the Government commissioners, of the members of the management board in July 2003 was brought to the Commission’s knowledge in a supplementary reply from the applicant dated 30 July 2008 to a request for information from the Commission dated 17 July 2008.

90. It is important to observe, however, that the applicant altered its statement, at least in part. In Form CO, it stated that, ‘in practice, while remaining voluntarily in the minority on the supervisory board, in 2003 [the applicant] and CDC elected or secured the election of … [two of the applicant’s] representatives to the management board’.

91. Furthermore, as the Commission observes, the Government commissioners attend management board meetings in a purely advisory capacity. Such a circumstance could not in any event indicate a situation of control within the meaning of EU law on concentrations.

92. Nor does the element of fact on which the applicant relies show that at the time the Government commissioners had any influence that could not have been overcome by the applicant (and CDC) as regards the election of the members of the management board.

93. Last, the applicant’s argument does not call into question the factual element to which the Commission refers at recital 83 to the contested decision, according to which even before 23 December 2003 two of the three members of the management board were representatives of the applicant. Nor does the applicant’s argument that the president of the management board is appointed by the president of the French Republic have any impact in that regard.

94. Likewise, those arguments do not contradict the fact, set out at recital 78 to the contested decision, concerning the possibility for the applicant to determine the management board in the future on the basis of the Agreement. Indeed, as already stated above, under Article 10 of the Agreement the applicant and CDC ‘will do everything in their power, in particular by exercising their voting right in the general meeting and asking the members of the supervisory board appointed on their proposal to exercise their voting right in the supervisory board, in order that CNR’s management board should be composed of three members, consisting of a president and two other members, appointed on a proposal [by the applicant]’. Taking into account also the fact that, as stated at recital 78 et seq. to the contested decision, CDC and the applicant held 6 of the 13 seats on the supervisory board, that the appointment of the members of the management board required a majority of two thirds and that under the Agreement the applicant had the right to object if CDC envisaged entering into a voting agreement with one or more other shareholders, it cannot be denied that the applicant was certain to control the management board in the future.

95. In the second place, the applicant questions the importance which the contested decision places on the management board’s role in the governance of CNR.

96. In that regard, it must be noted that the applicant does not dispute the factual elements set out at recitals 38, 80 and 83 to the contested decision, according to which it is the management board that determines CNR’s business policy, notably because it determines CNR’s budget and also its business plan and the appointment of senior management, without those decisions being submitted for approval by the supervisory board. Nor does the applicant dispute that the decisions on which the supervisory board must give its approval, a list of which is set out in footnote 19 to the contested decision, do not enable the supervisory board to exercise control over CNR.

97. As the Commission states in footnote 20 to the contested decision, the Notice on the concept of concentration states at point 21 et seq. that decisions relating to the budget, the business plan and the appointment of senior management are essential in that they determine an undertaking’s business strategy. They therefore constitute typical indicators of the exercise of control. Furthermore, as stated at point 14 of that notice, sole control may also be exercised by a minority shareholder who has the right to manage an undertaking’s activities and to determine its business policy.

98. That evidence is therefore not irrelevant for the purpose of determining whether a situation of control exists.

99. Nor is the Commission’s assertion at recital 81 to the contested decision that in the event of a conflict between the management board and the supervisory board the conflict is resolved by the general meeting, by a majority of votes of the shareholders present or represented, and that decision-making power ultimately resides in the general meeting, called into question. Article 18-1(3) of CNR’s articles of association states that ‘in the event of the supervisory board’s refusal to authorise one of those operations [acts and contracts of any nature or in any form engaging the company which, owing to their amount or duration, must be submitted for approval by the supervisory board], the management board may convene an extraordinary general meeting which may grant the authorisation in question and draw any consequences from the dispute between the managing bodies’. Consequently, if, as was found in the context of the second part of the second plea, the applicant was effectively assured at the end of December 2003 of obtaining a majority of votes in the general meeting, it must be considered that the applicant was also assured of being successful in the event of a dispute between the management board and the supervisory board.

100. The applicant none the less claims that in a public undertaking the view of a private operator cannot be imposed on the basis of a majority presence on the management board. As it submitted at the hearing, the private operator would first have to take the trouble to discuss the matter with the State authorities. Furthermore, in the applicant’s submission, given CNR’s governing structure, namely a limited company with a management board and a supervisory board, the supervisory board remained the authority in control of the management board. In support of its argument, the applicant relies on the existence of administrative supervision and also of economic and financial supervision of CNR as a national undertaking and also of the ex post checks carried out by the French Cour des comptes (Court of Auditors) and the French parliamentary committees. The administrative supervision concerned, in particular, the power of the Government commissioners sitting on the CNR’s supervisory board to seek a stay of execution of decisions adopted within the supervisory board so that the matter could be referred to the minister responsible for supervision for confirmation of the French Government’s opposition to the measures in question. As regards the economic and financial supervision, it follows from the role of the State controller, who attends meetings of the supervisory board, gives his opinion to the French Minister for Finance on CNR’s projects and submits an annual report to that minister.

101. As regards, first of all, the ex post checks carried out by the Court of Auditors and the parliamentary committees, it must be held that the applicant has adduced no specific evidence to explain how that type of intervention could call into question the existence of de facto control held by a minority shareholder.

102. As regards the respective roles of the Government commissioners and the State controller, the Commission claims that these are new matters of which the applicant was aware and which it therefore ought to have communicated during the administrative procedure. The applicant contends that they are matters which the Commission ought to have taken into account in its analysis.

103. It should be noted that the applicant mentioned the presence of the Government commissioners on the supervisory board in Form CO, where they are referred to as ‘two representatives of the State appointed by decree’, but made no mention of their power to seek a stay of execution of decisions of the management board where they are opposed by the Government. Further information about the Government commissioners is also included in the annexes to Form CO, either in the company’s articles of association or in the Murcef Law itself. Furthermore, the applicant emphasises the fact that it referred to the public nature of CNR during the hearing and requested the Commission to take that factor into account in its analysis. In that regard, it is apparent from the minutes of the hearing that the applicant mentioned the Government commissioners at the hearing, but provided no details of their powers, and that no mention was made of the role of the State controller.

104. The applicant claims, however, in essence, that it is apparent from the Commission’s allegations relating to the novel nature of those elements of fact that the Commission carried out an incomplete examination of the case. In the applicant’s submission, even on the assumption that it did not sufficiently point to the public nature of CNR, the Commission was none the less under an obligation to take all the relevant elements of fact into account in the analysis of the case.

105. The applicant relies in that regard on the case-law on the extent of the powers of review of the European Union (‘EU’) Courts in the event of decisions for which an institution has a discretion. In that context, the Court of Justice has observed that the EU Courts must ascertain whether the institution in question examined carefully and impartially all the relevant elements of the individual case which substantiate the conclusions drawn from them (see Case C-525/04 P Spain v Commission [2007] ECR I-9947, paragraph 57 and the case-law cited).

106. However, in a case such as this, which concerns the imposition by the Commission of a fine for an infringement of competition law, the Commission’s obligation, compliance with which is amenable to review by the General Court, is the one referred to at paragraph 31 above, namely to produce sufficiently precise and coherent evidence to establish that the alleged infringement took place. Indeed, the existence of an infringement must be assessed by reference solely to the evidence gathered by the Commission in the decision finding the infringement and the only relevant question is therefore whether, in substance, proof of the infringement has or has not been adduced on that evidence (see, by analogy, Joined Cases T-25/95, T-26/95, T-30/95 to T-32/95, T-34/95 to T-39/95, T-42/95 to T-46/95, T-48/95, T-50/95 to T-65/95, T-68/95 to T-71/95, T-87/95, T-88/95, T-103/95 and T-104/95 Cimenteries CBR and Others v Commission [2000] ECR II-491, paragraph 726). If the Court reaches the conclusion that that standard of proof has been met, the question whether additional evidence was taken into account is irrelevant unless the evidence in question undermines the firm conviction that the infringement took place. Indeed, the applicant is correct to observe that any existence of doubt in the mind of the Court must operate to the advantage of the addressees of the decision (G roupe Danone v Commission , paragraph 36 above, paragraph 215).

107. As regards the novel nature of the elements of fact relating to the powers of the Government commissioners and the role of the State controller, the Commission is correct to observe that it cannot be criticised for having developed in greater or lesser detail certain arguments in the contested decision by reference to the arguments which a defendant has claimed in a more or less salient manner in the administrative procedure. The fact none the less remains that an addressee of a statement of objections is not required to challenge the various elements of fact or law set out therein during the administrative stage if it is not to be barred from doing so later at the stage of the judicial proceedings ( Knauf Gips v Commission , paragraph 35 above, paragraph 89).

108. It follows that the disputed factual elements concerning the powers of the Government commissioners and the role of the State controller are admissible. It is for that reason, moreover, that the Court requested the applicant to provide additional explanations concerning the role of those persons.

109. In that regard, it should be observed that the probative force of the applicant’s argument is limited by the fact that, as the powers of the Government commissioners and the role of the State controller did not change between 2003 and 2007, the supervisory authorities still existed in 2007 when the applicant contacted the Commission in order to notify it of the acquisition of de facto control of CNR.

110. Furthermore, as regards the specific role of the Government commissioners, it must be stated that their powers are limited. It follows, in particular, from Article 14 of CNR’s articles of association and Article 11 of French Decree No 59-771 of 26 June 1959 (JORF, 28 June 1959, p. 6460), as amended by Article 2 of French Decree No 2003-512 of 16 June 2003 (JORF, 17 June 2003, p. 10102), to which Article 14 of the articles of association refer, that two Government commissioners are appointed to CNR, one by decree of the French Minister for Energy and the other by decree of the French Minister for Transport. Their task consists in ensuring that CNR complies with the general-interest mission in the context of the concession granted by the French State. As the Commission correctly claims, the Government commissioners’ task therefore concerns only CNR’s general-interest mission and not its business activities. Furthermore, as regards the specific role of those Government commissioners within the supervisory board and at CNR’s general meetings, they are present in a purely advisory capacity and have only the same right to obtain information as the other members of the supervisory board. As for their power to request, within 8 days following the adoption of a decision by the supervisory board which relates to the implementation of the concession, a new deliberation and also, within 15 days following that new deliberation, suspension of its implementation, and to refer the matter to the minister, who then has 15 days within which to make his objection known, where appropriate, the applicant acknowledged in answer to a written question from the Court that, in practice, the Government commissioners did not have occasion to use their powers to request suspension of implementation of a decision or to object to a project submitted during the periods 2000 to 2003 and 2004 to 2007 in the framework of meetings of CNR’s organs.

111. It must therefore be held that, whether under the relevant provisions or in practice, the Government commissioners do not or cannot prevent the exercise of de facto control by a minority shareholder with a position of strength in the management board and in particular in the general meeting such as that held by the applicant from 23 December 2003. The extracts from the deliberations of CNR’s organs on which the applicant relies do not call such a conclusion into question. At most, there emerges consideration by the private shareholders of the opinion of the French State with respect to strategic projects coming within CNR’s general-interest mission. Thus, for example, the references to the expectation of obtaining the agreement of the supervising ministers concerning a five-year plan for the implementation of CNR’s general-interest missions referred to in the minutes of CNR’s supervisory board of 31 March 2004 provide no information as to whether the applicant could or could not have such a plan implemented by CNR without that agreement, still less as to the fact that it would be prevented from imposing its point of view with respect to CNR’s business strategy.

112. A similar analysis must be made as regards the role of the State controller. It is apparent on reading Article 5 of Decree No 59-771 in conjunction with the relevant provisions of French Decree No 55-733 of 26 May 1955 (JORF, 1 June 1955, p. 5547), in the version in force on 23 December 2003, that the State controller attends sessions of the supervisory board, in an advisory capacity, and exercises control relating to the economic activities and financial management of the persons controlled, ensuring that the financial interests of the French State are preserved. For that purpose, he has unlimited powers of investigation and a right to obtain information and he may also attend general meetings. His task is to report to the ministers responsible for the French economy and budget on the draft decisions submitted for their approval and to draw up an annual report on the economic and financial situation of the undertakings controlled. Furthermore, French Decree No 53-707 of 9 August 1953 on State control of national public undertakings and certain bodies having an economic or social object (JORF, 10 August 1953, p. 705), to which the applicant refers in answer to the written questions from the Court, refers to prior control relating in particular to the budget and to transfers, acquisitions or extension of financial participations.

113. In that regard, it must be held that the applicant refers to no specific decision of CNR that would be subject to the joint prior approval of the French Minister for Finance and the French Minister for Energy and on which the State controller would therefore have to issue a preliminary opinion. In answer to the question from the Court whereby the applicant was asked to explain what action would be taken, where necessary, in response to any negative assessments on the part of the State controller in his opinions and reports, the applicant merely claimed that these were internal documents of the administration that were not accessible to the undertakings concerned or a fortiori to their private shareholders. In those circumstances, regard being had to the advisory role of the State controller within CNR’s organs and in the absence of any specific factors that would enable his contacts with the supervising ministers to be linked with CNR’s actual decisions, it has not been established that the State controller plays a role that would call the Commission’s analysis into question.

114. It follows, rather, that, as in the case of the Government commissioners, and as the Commission correctly claims, the ‘control’ exercised by the French State through the State controller does not correspond to the concept of control within the meaning of Regulation No 4064/89.

115. As regards, last, the applicant’s argument that it was not seeking to establish that the State exercised such control, but merely that there was a body of indicia that prevented the applicant from considering it highly likely that it would have de facto sole control, in any event, the factors which it mentions do not prevent such control over CNR’s operational management and business strategy being exercised by the applicant. As already stated at paragraph 109 above, the force of its argument is undermined by the fact that those supervisory authorities still existed in 2007, when the applicant contacted the Commission in order to notify it that it had acquired de facto sole control of CNR.

116. For the sake of completeness, it must be made clear that the applicant’s argument amounts to requiring that the Commission establish the absence of any doubt on the applicant’s part that it might be able to manage CNR’s activities from 23 December 2003. However, by placing such emphasis on the concept of ‘high likelihood’ referred to at point 14 of the Notice on the concept of concentration, the applicant distorts the concept of de facto sole control.

117. In those circumstances, the complaints alleging that the Commission made errors of assessment by disregarding the influence of the State on the governance of CNR, notably through the role of the supervisory board, the Government commissioners and the State controller, must be rejected.

– The impact of the Murcef Law

118. At recitals 87 to 93 to the contested decision the Commission considers, in essence, that the existence of the Murcef Law does not alter its previous analysis concerning the applicant’s foreseeable holding of an absolute majority at CNR’s future general meetings. As observed at recital 87, the purpose of that law is to prevent any private operator from holding more than 50% of CNR’s capital or voting rights. The Commission observes at recital 89 that the French legislature’s desire to keep the majority of shares in public ownership is a question separate from that of the acquisition of control within the meaning of EU law.

119. The applicant claims that it has never maintained that the Murcef Law constituted a legal obstacle to its acquisition of sole control of CNR within the meaning of EU law. However, the Commission failed to take the existence of that law into account as an element of fact in the body of indicia affecting the high likelihood of obtaining control that the applicant could have perceived in December 2003.

120. It must be held that, where the Commission asserts at recital 89 to the contested decision that ‘[t]he French legislature’s desire to keep the majority of the shares in CNR in public ownership is a question separate from that of the acquisition of control under Community merger control law’, it properly distinguished a situation of legal control of CNR, which is actually impossible in the light of the Murcef Law, and the fact that that legal obstacle does not prevent a private shareholder from being the largest shareholder in CNR and from being able, although a minority shareholder, to exercise de facto control over that undertaking. Furthermore, in so far as the applicant seeks to establish that the existence of the Murcef Law affected the high likelihood that it would have been able to exercise de facto control over CNR from December 2003, it must be observed that such an argument denies that objective factors characterising the applicant’s situation existed on 23 December 2003. That cannot be the way in which Article 3 of Regulation No 4064/89 or point 14 of the Notice on the concept of concentration are to be understood.

121. The argument alleging that the Commission did not take sufficiently into account the existence of the Murcef Law as an element of fact affecting the assessment of the criterion linked with the high likelihood that the applicant would exercise de facto control over CNR must therefore be rejected.

122. In that regard, the applicant also relies on Commission Decision 1999/594/EC of 18 February 1998 imposing fines for failing to notify and for putting into effect a concentration in breach of Article 4(1) and Article 7(1) of Regulation No 4064/89 (Case IV/M.920 — Samsung/AST) (OJ 1999 L 225, p. 12). In the applicant’s submission, in the present case the facts are comparable with the facts of Decision 1999/594, since in that case great importance was attributed to a temporary contractual provision preventing the acquisition of a majority of the capital of AST.

123. However, it is necessary to bear in mind the case-law referred to at paragraph 63 above, from which it follows that neither the Commission nor, a fortiori, the Court is bound in the present case by the findings of fact and the assessments contained in a previous Commission decision. Furthermore, the Commission rejected that argument of the applicant at recitals 90 and 91 to the contested decision. Its analysis must be confirmed. Contrary to the applicant’s contention, the Commission considered in Decision 1999/594 that Samsung had acquired de facto sole control of AST in January 1996, although a clause in the amendment to the agreement between shareholders, which provided that Samsung could not acquire more than 49.9% of the shares in AST, was still applicable until December 1998. The Commission considered, in particular, that de facto control was acquired when Samsung had appointed the majority of the management board (recital 7 to Decision 1999/594). Consequently, the contractual limit, fixed at 49.9%, of acquisition of participation in the capital was not the decisive element in the assessments of Samsung’s ability to acquire de facto sole control of AST. Accordingly, when similar reasoning is applied in the present case, de facto sole control of CNR by the applicant was indeed capable of arising even though the Murcef Law was still in force. That, moreover, as the Commission correctly observes, is what the applicant considered in summer 2007 when it contacted the Commission concerning the transaction at issue in the present case.

124. Last, the case-law referred to at paragraph 63 above also applies with respect to the argument relating to the Commission Decision of 12 March 2004 declaring a concentration compatible with the common market (Case COMP/M.3330 — RTL/M6) (‘the RTL/M6 Decision’), to which the Commission refers at recital 92 to the contested decision and the relevance of which the applicant disputes in so far as it never called into question the fact that the mere existence of the Murcef Law was not an obstacle to the acquisition of de facto sole control of CNR.

125. Furthermore, as the Commission explains at recital 92 to the contested decision, what was at issue in the RTL/M6 Decision was a French law which prohibited any single natural or legal person from holding more than 49% of the capital or the voting rights of a national television channel. Although RTL held only 48.8% of the capital and 34% of the voting rights of M6, the Commission concluded that it exercised de facto sole control in the light in particular of the dispersion of the remaining shareholdings and of the prospective analysis carried out. Contrary to the applicant’s contention, the reference to that case in the contested decision as an example of a precedent showing that a law prohibiting an operator from holding an absolute majority of the voting rights is not incompatible with the acquisition of de facto control of that company is relevant. In any event, the applicant’s argument alleging, in essence, that that reference was ‘superfluous’ is not such as to call into question the Commission’s analysis in relation to the consequences to be drawn from the Murcef Law.

126. The complaint relating to the impact of the Murcef Law must therefore be rejected as well.

The other complaints in the third part of the second plea, relating to errors affecting the other factors identified in the contested decision

127. The applicant raises errors concerning, first, the respective industrial and commercial roles of it and EDF within CNR during the period 2004 to 2006; second, the statements of the managers of CNR, the applicant and Suez; and, third, the existence of a preferential right in the applicant’s favour.

– The complaint alleging an error of assessment with respect to the factor based on the respective industrial and commercial roles of the applicant and EDF within CNR during the period 2004 to 2006

128. This complaint concerns the fourth factor identified by the Commission in order to establish that there was a lasting change of control over CNR in favour of the applicant on 23 December 2003 (paragraph 26 above).

129. At recitals 94 to 126 to the contested decision the Commission considered that, in assuming the industrial role played by EDF within CNR, the applicant had become CNR’s sole industrial shareholder since 2003 and had a central role in its operational management. That analysis consists of two parts, which relate, first, to EDF’s withdrawal from CNR’s operational management and, second, to the applicant’s assumption of EDF’s industrial role and operational management.

130. As regards the first part, relating to EDF’s withdrawal (recitals 95 to 102 to the contested decision), the Commission refers in particular to EDF’s withdrawal from CNR’s operational management following the commitments given in 2001 in the context of the EDF/EnBW Decision, cited at paragraph 4 above. By those commitments, EDF undertook, first, not to exercise its voting rights in CNR’s general meetings or to have a representative on CNR’s management board in the future and, second, to purchase between April 2001 and April 2006 part of CNR’s electricity production at the latter’s request in order to enable it gradually to enter the electricity market.

131. Against that analysis, the applicant maintains that EDF retained, after 2003 and until 2006, a significant operational and commercial role in CNR. In the applicant’s submission, the height of EDF’s powers was achieved during the period 2004 to 2006.

132. The Commission disputes the applicant’s arguments and claims that the fact that the applicant became CNR’s sole industrial shareholder in 2003 is a relevant factor.

133. In the first place, as regards the global exploitation agreement and the agreement guaranteeing that CNR’s electricity would be purchased by EDF, both of which were concluded in 2001 for a period of five years, the applicant claims, in particular, that EDF played a sufficiently significant role in the events for the Commission to be unable to conclude that the applicant had wholly assumed on 23 December 2003 the operational and commercial role historically assigned to EDF. The fact that the Commission may have considered in the EDF/EnBW Decision that those agreements guaranteeing the purchase of electricity constituted a commitment necessary in order to ‘enable CNR to enter the electricity markets’ shows that EDF played a role of essential business partner in order to enable that entry into the market.

134. That argument cannot succeed. As the Commission states at recital 100 to the contested decision, the existence of agreements between EDF and CNR is not in contradiction to the fact that CNR is able to define its industrial and commercial policy independently of EDF. In that regard, the Commission was entitled to rely on the positions taken by the applicant during the procedure for the notification of the concentration at issue in the present case. Recital 100 to the contested decision refers on that point to the applicant’s reply of 7 April 2008 to the request for information of 26 March 2008, in which it asserted that ‘EDF [had lost] control over CNR in 2001, when the Gentot Committee … [had] laid down the conditions for the review of the protocols governing industrial and commercial relations between the two companies, so that CNR could gradually become an independent producer of electricity in its own right’. That reply shows that the applicant itself considered that CNR had been freed of EDF’s decisive influence in 2001.

135. Contrary to the applicant’s contention, that analysis at recital 100 to the contested decision does not mean that the Commission incorrectly considered the question whether EDF had control over CNR between 2001 and 2006 instead of ascertaining whether the applicant could be regarded as having assumed the operational role historically assigned to EDF. That argument is the consequence of a misreading of the contested decision, in which the Commission identified as one of the relevant factors for the purpose of establishing that the applicant had taken control of CNR at the end of 2003 only the fact that it was at that time the only industrial shareholder of CNR.

136. Furthermore, in support of its argument, the Commission also correctly relies on paragraph 90 of Form CO, cited in footnote 51 to the contested decision. That paragraph contains a reference to a joint declaration by CNR and EDF in 2001 in which it was stated that CNR had responsibility for making major choices on its industrial management.

137. In the second place, as regards purchases of CNR’s electricity by EDF, the Commission correctly refers to the commitments given in the context of the EDF/EnBW Decision. Indeed, as stated at recital 102 to the contested decision, this was a guarantee that EDF would purchase a certain amount of electricity produced by CNR in order to enable the latter to enter the electricity market as an independent supplier. Nor does the applicant supply any detailed figures to support its argument relating to the importance of that ongoing commercial partnership with EDF, or indeed of a certain degree of dependency resulting therefrom. Last, if the applicant maintains that the Commission did not deal in the same way with the commercial contract between the applicant and CNR, which also concerned voluntary sales, but which was none the less taken into account as a factor indicating the applicant’s predominant role, that argument cannot succeed, as it does not call into question the Commission’s analysis that the existence of a possibility, and not an obligation, for CNR to have a proportion of its electricity purchased by EDF was not in contradiction to the finding that CNR already determined its industrial and commercial policy independently of EDF in 2003.

138. In the third place, as the Commission observes, the applicant does not challenge the fact that the Suez group’s annual report for 2003, the relevance of which it does not dispute, mentioned that it had taken over operational control of CNR and included CNR’s power stations in the applicant’s electricity generating capacities, as stated at recital 101 to the contested decision.

139. It follows from paragraphs 134 to 138 above that it has not been established that the Commission erred in taking EDF’s withdrawal from the operational management of CNR as a factual element in support of the fourth factor mentioned in the contested decision in order to establish that the applicant acquired control of CNR on 23 December 2003.

140. As regards the second part, relating to the applicant’s assumption of EDF’s industrial role and the applicant’s central role in the operational management of CNR, the Commission states at recitals 103 to 126 to the contested decision that the acquisition of EDF’s shareholding on 23 December 2003 and the factors relating to EDF’s withdrawal examined in the context of the first part were part of a cooperation between the applicant and CNR initiated in 2000.

141. In that regard, the Commission refers to a framework agreement concluded between CNR and the applicant at that time, the purpose of which was, in particular, to set up a joint subsidiary, Énergie du Rhône (EDR). At recitals 106 to 110 to the contested decision the Commission describes the essential role played by EDR in CNR’s commercial activity and also the procedures for the management of that joint subsidiary. In spite of the fact that CNR held 51% of the capital and an absolute majority in meetings of EDR’s management board, decisive influence is attributed to the applicant on the ground that certain types of decisions required a unanimous vote. At recital 111 to the contested decision the Commission states that, apart from the agreement on the setting-up of EDR, the applicant and CNR signed a series of technical and commercial partnership agreements between 2001 and 2004. At recital 112 the Commission refers to a statement made by CNR’s chairman at an ordinary general meeting held on 25 June 2003, according to which ‘CNR started to give consideration to bringing together a commercial and an industrial partnership once it knew that [the applicant] would acquire a shareholding. [The applicant] thus became our main commercial partner with close on 35% of sales and the rapid expansion of [EDR]’.

142. The applicant raises against that analysis the objection that the Commission relied on agreements between CNR and the applicant, half of which were concluded after 2003. Nor does the Commission explain how the setting-up of EDR could have conferred greater influence on CNR. The setting-up of EDR was notified to the Commission and approved as the establishment of a ‘cooperative’ and not as a ‘concentrative’ joint venture in 2002. The Commission granted an individual exemption under Article 81(3) EC ‘for a duration equal to the period of gradual withdrawal of EDF from CNR, that is to say, until 2006’. In the applicant’s submission, the Commission ought therefore to have concluded that the applicant’s role as the reference industrial shareholder had not commenced until during 2006.

143. The Commission disputes the applicant’s arguments and maintains that the factors identified in the contested decision as indicating that the applicant had assumed a leading industrial and operational role before 23 December 2003 are not called into question.

144. In the first place, as regards the applicant’s argument that the contracts between CNR and the applicant referred to, in particular, at recital 111 and in footnote 55 to the contested decision concern in part agreements concluded after 2003, although that is indeed the case for three of the six agreements mentioned, the fact none the less remains that three agreements date from 2001, namely a framework contract for purchasing options on forward contracts for buying electricity, a supply and guarantee contract and an off-take contract, and that they can serve to demonstrate the strengthening of the partnership between CNR and the applicant at technical and commercial levels well before December 2003.

145. In the second place, concerning the scope of the exemption granted by the Commission in an administrative letter of 29 November 2002 closing the notification procedure in EDR’s case, the Commission correctly claims that the fact that it had considered that the joint venture EDR could be exempted until during 2006 did not prevent the applicant from exercising de facto control of CNR from December 2003. Although the Commission might have stated in that letter that it granted an individual exemption to EDR under Article 81(3) EC ‘for a duration equal to the period of gradual withdrawal of EDF from CNR, that is to say, until 2006’, the transfer of EDF’s shares to the applicant had not yet taken place. It is when those elements are read together that it is possible to determine the existence of de facto sole control at the end of 2003.

146. In the third place, it should be noted that the applicant does not call into question the Commission’s reference at recital 112 to the contested decision to a statement made by CNR’s chairman on 25 June 2003, and therefore well before December 2003, referring to the applicant’s role as ‘main commercial partner with close on 35% of sales’. Furthermore, that same statement refers to a rapid expansion of EDR connected with the applicant’s strengthened role within CNR. Although some of the figures given at recital 112 relate to data after 2003 and cannot therefore serve to establish how the applicant must have envisaged its position in CNR on 23 December 2003, the statement in question was made before that date.

147. In the fourth place, it is appropriate to examine the applicant’s argument that the Commission unlawfully reversed the burden of proof in finding in the contested decision, without having demonstrated it in the authorisation decision, that the concentration took place during December 2003. The applicant maintains that it is thus required to prove that the concentration did not take place until sometime during 2007. The applicant relies, in particular, on the fact that the Commission rejected its argument relating to the fact that the applicant and CNR had created a common brand during 2007, being of the view that that element did not suffice to demonstrate that de facto sole control had been acquired in 2007 and not during 2003, without stating its reasons for adopting that position.

148. That argument cannot succeed. Although the Commission refers at recital 121 et seq. to the contested decision to arguments which the applicant put forward at the hearing with the aim of showing that it did not acquire control of CNR until sometime during 2007, and then rejected them on the ground that the applicant had not proved that the acquisition of control had taken place in 2007, that circumstance does not constitute an unlawful reversal of the burden of proof. On the contrary, the Commission, aware that it bore the burden of proof, put forward a number of substantial and detailed factors in the contested decision in order to establish that the infringement existed and the date on which it began.

149. Last, in order to reject the argument put forward by the applicant during the administrative stage concerning the setting-up of a common brand during 2007, the Commission asserted at recital 126 to the contested decision that the applicant had not explained why the launch of that brand should constitute an event triggering the acquisition of control in 2007 and added that it might even be argued that that launch might have been made possible by the applicant’s prior control of CNR. The elements thus put forward by the Commission, in a relatively summary manner, but sufficiently in the light of the other factors taken into account, cannot in themselves be regarded as constituting a reversal of the burden of proof.

150. It follows from the foregoing that the applicant has also failed to establish that the Commission had erred in taking into account the applicant’s acquisition of EDF’s industrial role and its central role in the operational management of CNR.

151. The complaint alleging an error of assessment with respect to the factor based on the respective industrial and commercial roles of the applicant and EDF in CNR during the period 2004 to 2006 must therefore be rejected in its entirety.

– The complaint alleging an error of assessment with respect to the factor based on the statements of the managers of CNR, the applicant and Suez

152. This complaint concerns the fifth factor identified by the Commission in order to establish that there was a lasting change of control over CNR in favour of the applicant in December 2003 (paragraph 26 above).

153. At recitals 127 to 158 to the contested decision, the Commission mentions, under the heading ‘[s]ince 2004 CNR has been regarded de facto as forming part of the Suez group both by the managers of CNR and by the managers of Suez’, several internal CNR and Suez group documents, including minutes of the management board and the supervisory board, which reveal that as early as 2004 CNR was part of the group so far as Suez was concerned. Also mentioned are certain references to CNR in the Suez group’s annual reports, beginning in 2003.

154. The applicant disputes the value of those statements as factors establishing that it acquired de facto control of CNR on 23 December 2003, claiming, in particular, that most of the statements in question were made after 2003.

155. The Commission contends, first, that while most of the statements cited date from 2006 and 2007, the first statement dates from the beginning of 2004 and, second, that those statements reflect the fact that the applicant had already held de facto control of CNR since the end of 2003.

156. It should be made clear, first of all, that, in so far as examination of the other complaints raised in the context of the second plea confirms to the requisite legal standard the Commission’s finding that the applicant acquired de facto sole control of CNR on 23 December 2003 (paragraphs 22 to 151 above), this complaint is ineffective.

157. Next, the fact that the Commission relies in the contested decision on statements made after 23 December 2003 is not in itself problematic. The Commission correctly observes, moreover, that the applicant does not call into question as such the statements on which the Commission relies in the contested decision. While such statements do not suffice to establish that it was highly likely at the end of 2003 that the applicant would be in a situation of de facto control, they are none the less capable of confirming the date of the beginning of the infringement as revealed by matters pre-dating or contemporaneous with the infringement. Furthermore, subsequent events may be indicative of the continuous nature of the infringement. In that regard, it is because the applicant notified the concentration to it only during 2007 that the Commission was in a position to mention events after the end of 2003.

158. It is true that the applicant is correct to observe that none of the statements on which the Commission relies in the contested decision mentions, even implicitly, an acquisition of de facto control between 2003 and 2007.

159. However,