CELEX: 62004TJ0279
Language: en
Date: 2010-09-13
Title: Judgment of the General Court (Sixth Chamber) of 13 September 2010.#Éditions Odile Jacob SAS v European Commission.#Competition - Concentrations - French-language publishing - Decision declaring the concentration compatible with the common market subject to sale of assets - Action for annulment brought by an unsuccessful prospective purchaser - Obligation to state reasons - Fraud - Error of law - Manifest error of assessment - Regulation (EEC) No 4064/89.#Case T-279/04.

Judgment of the General Court (Sixth Chamber) of 13 September 2010 – Éditions Jacob v Commission
      (Case T-279/04)
      Competition – Concentrations – French-language publishing – Decision declaring the concentration compatible with the common market subject to sale of assets – Action for annulment brought by an unsuccessful prospective purchaser – Duty to state reasons – Fraud – Error of law – Manifest error of assessment – Regulation (EEC) No 4064/89
      1.                     Actions for annulment – Actionable measures – Concept – Measures producing binding legal effects – Preparatory measures –
            Not included – Commission decision to initiate in-depth examination of a concentration operation (Art. 230 EC; Council Regulation
            No 4064/89, Art. 6(1)(c)) (see para. 89)
      2.                     Competition – Concentrations – Assessment of compatibility with the common market – Nature of control, single or joint, exercised
            over an undertaking to be taken into account – Criteria for assessment – Holding of assets operation prior to authorisation
            of the concentration by the Commission – Possibility of exercising a determinant influence over the business connected with
            the assets – None – Acquisition of assets with a view to their resale (Council Regulation No 4064/89, Arts 3 and 4) (see paras
            116-118, 125, 132, 138-140, 142, 144, 150, 153)
      3.                     Competition – Concentrations – Examination by the Commission – Operation carried out before being notified – Consequences
            – Possibility of the Commission declaring the operation incompatible with the common market – Possibility of the Commission
            revoking a decision declaring the concentration compatible – None – Failure to notify capable of being penalised by the imposition
            of a fine (Council Regulation No 4064/89, Arts 6 to 8 and 14) (see paras 156-161, 201-202)
      4.                     Competition – Concentrations – Notification – Obligation – Scope – Holding of assets operation not constituting a concentration
            – Not included (Council Regulation No 4064/89, Arts. 1(1), 4(1) and (7)(1)) (see paras 171, 231-232)
      5.                     Competition – Concentrations – Examination by the Commission – Revocation of a decision authorising a concentration operation
            – Criteria – Decision fraudulently obtained – Concentration operation classified as acquisition of shareholdings on a temporary
            basis – Requirement for demonstration that control acquired (Council Regulation No 4064/89, Arts 3(1)(b) and (5)(a) and 8(5)(a))
            (see paras 191-194)
      6.                     Acts of the institutions – Statement of reasons – Obligation – Scope – Decision to apply rules on concentrations between undertakings
            – Decision authorising a concentration operation – Scope (Council Regulation No 4064/89, Art. 8(2)) (see paras 226-228, 233-234)
      7.                     Competition – Concentrations – Examination by the Commission – Economic assessments – Discretion – Judicial review – Limits
            (Council Regulation No 4064/89, Art. 2) (see paras 248-249)
      8.                     Competition – Concentrations – Assessment of compatibility with the common market – Creation or strengthening of a dominant
            position – Evidence – Modification of the initial position of the parties on the affected markets – Consequences of a sale
            of assets – Overall turnover figures of the parties to the operation – Not included (Council Regulation No 4064/89, Arts 2(3)
            and 8(3)) (see paras 284-286, 288)
      9.                     Competition – Concentrations – Examination by the Commission – Definition of the market in question – Criteria – Substitutability
            of products – Structure of supply and demand – Transversal effect of a concentration taken into account (Council Regulation
            No 4064/89) (see paras 302-306)
      10.                     Competition – Concentrations – Assessment of compatibility with the common market – Point in time to be taken into consideration
            – Point at which the operation notified – No obligation to take into consideration the risk of agreements restricting competition
            being concluded following the concentration (Council Regulation No 4064/89, Art. 2) (see paras 326-327, 338)
      11.                     Competition – Concentrations – Examination by the Commission – Commitments by the undertakings concerned to render the notified
            transaction compatible with the common market – Undertaking to sell assets – Selection criteria of the buyer – Current or
            potential competitor – Independence, financial resources and competences confirmed – Sale of assets to a financial buyer –
            Lawfulness (Council Regulation No 4064/89; Commission Communication on corrective measures admissible in accordance with Regulations
            Nos 4064/89 and 447/98, para. 49) (see paras 340-346)
      Re:
      
         
               APPLICATION for the annulment of Commission Decision 2004/422/EC of 7 January 2004 declaring a concentration to be incompatible
                  with the common market and the functioning of the EEA Agreement (Case COMP/M.2978 – Lagardère/Natexis/VUP) (OJ 2004 L 125,
                  p. 54).
               
            Operative part 
      The Court:
      
         
                  1.
               
               
                  
               
               
                  	Dismisses the action;
               
            
         
                  2.
               
               
                  
               
               
                  	Orders Éditions Odile Jacob SAS to bear its own costs and to pay the costs of the European Commission and Lagardère SCA.