Case C-464/23 P: Appeal brought on 21 July 2023 by EVH GmbH against the judgment of the General Court (Fourth Chamber, Extended Composition) delivered on 17 May 2023 in Case T-312/20, EVH GmbH v European Commission
Date: 2023-07-21
Institutions: Court of Justice
Subjects: economic concentration, electrical energy, electricity supply, energy distribution, energy industry, energy production, energy transport, merger control, renewable energy, retail selling








C_2023321EN.01003401.xml










11.9.2023   


EN


Official Journal of the European Union


C 321/34






Appeal brought on 21 July 2023 by EVH GmbH against the judgment of the General Court (Fourth Chamber, Extended Composition) delivered on 17 May 2023 in Case T-312/20, EVH GmbH v European Commission
(Case C-464/23 P)
(2023/C 321/40)
Language of the case: German

Parties


Appellant: EVH GmbH (represented by: I. Zenke, Rechtsanwältin, and T. Heymann, Rechtsanwalt)

Other parties to the proceedings: European Commission, Federal Republic of Germany, E.ON SE, RWE AG

Form of order sought

The appellant claims that the Court should:






1.


set aside the judgment of the General Court of the European Union of 17 May 2023, EVH v Commission (T-312/20), and annul the decision of the European Commission of 26 February 2019 on the merger of ‘RWE/E.ON Assets’ (Case M.8871, OJ 2000 C 111, p. 1);
1a. in the alternative, and in any event, refer Case T-312/20 back to the General Court for it to make all necessary decisions;










2.


order the Commission to pay the costs, including lawyers’ fees and travel expenses incurred by the appellant in proceedings T-312/20.





Grounds of appeal and main arguments

By its first ground of appeal, the appellant complains that, in the judgment under appeal, the General Court misinterpreted EU law — namely Article 101 TFEU and Article 21(1) of Regulation (EC) 139/2004. (1)

First, EU law was infringed on account of the failure to apply Article 101 TFEU because of an alleged blocking effect of Article 21 of the EC Merger Regulation (paragraphs 392 et seq. of the judgment under appeal).
Secondly, account was not taken of the evidence submitted by the appellant of a cartel agreement between RWE and E.ON for the purposes of Article 101 TFEU (paragraphs 392 et seq. of the judgment under appeal).
Thirdly, the failure to take account of the facts submitted by the appellant on formal grounds is regarded as an infringement of procedural rights (paragraphs 393, 394 and 406 et seq. of the judgment under appeal).
By its second ground of appeal, the appellant submits that the General Court erred in not regarding the merger control proceedings of the Commission in Cases M.8871 and M.8870 and the merger control proceedings of the Bundeskartellamt (Federal Cartel Office) in Case B8-28/19 as integral parts of a single concentration, which were to be examined in merger proceedings.
In that context, first, the General Court is criticised for having excluded RWE’s investment in E.ON of 16,67 % in Case B8-28/19 (paragraphs 65 et seq. of the judgment under appeal).
Secondly, the interpretation of the definition of a ‘single concentration’ under Article 3, read in conjunction with recital 20, of the EC Merger Regulation is criticised (paragraphs 74 et seq. of the judgment under appeal).
The third ground of appeal maintains that the General Court also infringed and incorrectly applied Article 2 of the EC Merger Regulation on account of an erroneous assessment of the market in Case M.8871.
First, the General Court erred in approving the fact that the Commission left open the definition of the market (paragraphs 220 et seq. of the judgment under appeal).
Secondly, the General Court failed to challenge the Commission’s inadequate forecast of market developments (paragraphs 229 et seq. of the judgment under appeal).
Thirdly, the appellant challenges the allegedly inadequate assessment of RWE’s increasing market power (paragraphs 260 et seq. of the judgment under appeal).
Fourthly, the General Court is alleged to have inadequately assessed the competitive relationship between RWE and E.ON and the elimination of E.ON (paragraphs 337 et seq. of the judgment under appeal).
Lastly, in the fourth ground of appeal, the appellant alleges that the General Court infringed the principles of the allocation of the burden of proof by imposing an excessive standard of proof on the appellant in the judgment under appeal (paragraphs 273, 278 et seq., 328, 341, 344 and 382).


(1)  Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) (OJ 2004 L 24, p. 1).