Case C-177/24 P: Appeal brought on 1 March 2024 by GGEW, Gruppen-Gas- und Elektrizitätswerk Bergstraße AG against the judgment of the General Court (Fifth Chamber, Extended Composition) delivered on 20 December 2023 in Case T-62/21, GGEW, Gruppen-Gas- und Elektrizitätswerk Bergstraße AG v European Commission
Date: 2024-03-01
Institutions: Court of Justice
Subjects: EU competition policy, Germany, cartel, economic concentration, energy production, energy supply, gas industry, merger control, restriction on competition








C_202402748EN.000101.fmx.xml












Official Journal of the European Union


EN
C series













C/2024/2748


29.4.2024






Appeal brought on 1 March 2024 by GGEW, Gruppen-Gas- und Elektrizitätswerk Bergstraße AG against the judgment of the General Court (Fifth Chamber, Extended Composition) delivered on 20 December 2023 in Case T-62/21, GGEW, Gruppen-Gas- und Elektrizitätswerk Bergstraße AG v European Commission


(Case C-177/24 P)

(C/2024/2748)
Language of the case: German

Parties


Appellant: GGEW, Gruppen-Gas- und Elektrizitätswerk Bergstraße AG (represented by: I. Zenke, Rechtsanwältin, and T. Heymann, Rechtsanwalt)

Other parties to the proceedings: European Commission, E.ON SE, RWE AG

Form of order sought

The appellant claims that the Court should:






—


set aside the judgment of the General Court of 20 December 2023 in Gruppen-Gas- und Elektrizitätswerk Bergstraße AG v Commission (T-62/21) and annul the European Commission’s decision of 17 September 2019 concerning the ‘E.ON/innogy’ concentration (Case M.8870, OJ 2020 C 379, p. 16);










—


in the alternative and in any event, refer Case T-62/21 back to the General Court for it to make all necessary decisions;










—


order the Commission to pay the costs including the applicant’s lawyers’ and travel costs incurred as a result of the proceedings in Case T-62/21.





Grounds of appeal and main arguments

In support of the appeal, the appellant relies on five grounds of appeal.
First, the General Court misinterpreted EU law, in particular Article 101 TFEU and Article 21(1) of the Merger Regulation. (1) It wrongly failed to apply Article 101 TFEU because of an alleged blocking effect of Article 21 of the Merger Regulation, disregarded the documents provided by the appellant in relation to a cartel agreement between E.ON and RWE, and infringed procedural laws by not taking into account the factual assertions of the appellant.
Secondly, the General Court failed to view the subject matter of the administrative proceedings M.8870, M.8871 and B8-28/19 as an integral part of a single concentration which mandatorily needed to be examined in a merger control procedure and thereby incorrectly applied Article 3 of the Merger Regulation. The General Court (i) excluded the acquisition of 16.67% of E.ON by RWE and, (ii) disregarded the concept of concentration referred to in Article 3 of the Merger Regulation in conjunction with recital 20 of the Merger Regulation.
Thirdly, the General Court also infringed Article 2 of the Merger Regulation by an incorrect market definition, an incorrect assessment of the consequences of the concentration and an incorrect forecast horizon and an incorrect categorisation of the commitment.
Fourthly, manifest errors and distortions of facts are alleged in the judgment under appeal, which formed the basis for a claim for the rectification of that judgment being brought.
Fifthly and finally, the General Court imposed excessive evidentiary requirements, by repeatedly requiring the appellant, in relation to proof of the manifest errors of assessment, to explain the result of investigations which the Commission did not carry out and to provide arithmetic evidence, the actual results which the Commission would have arrived at had it carried out a correct analysis. In addition, the General Court infringed the principles relating to the apportionment of the burden of proof, in which it rejected the appellant’s request for the production of procedural documents.


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


ELI: http://data.europa.eu/eli/C/2024/2748/oj
ISSN 1977-091X (electronic edition)