Portuguese Republic v Commission of the European Communities.
Date: 2004-06-22
50. It should be recalled that the Merger Regulation is based on the principle of a precise allocation of competences between the national and Community control authorities. The 29th recital in its preamble provides that ‘concentrations not referred to in this Regulation come, in principle, within the jurisdiction of the Member States’. By contrast, the Commission alone has competence to take all decisions relating to mergers with a Community dimension (Case C‑170/02 P Schlüsselverlag J.S. Moser and Others  v Commission  [2003] ECR I-0000, paragraph 32).
51. At the same time, the Merger Regulation contains provisions which, for reasons of legal certainty and in the interests of the undertakings concerned, are designed to limit the duration of the controls which the Commission must carry out. Thus, under Article 4 of that regulation, notification to the Commission of a concentration operation with a Community dimension must take place within a week. Articles 6 and 10(1) of the Regulation provide that the Commission must begin its examination immediately and that it has a period of, normally, one month within which to decide whether or not to initiate the formal procedure for examining the compatibility of the operation with the common market. Under Article 10(3) of the regulation, the Commission must in principle rule on the matter within a period of four months, which runs from the decision to initiate the proceeding. Article 10(6) provides that ‘[w]here the Commission has not taken a decision … within the deadlines …, the concentration shall be deemed declared compatible with the common market’ ( Schlüsselverlag J.S. Moser , paragraph 33).
53. That demonstrates that the Community legislature intended to make a clear allocation between the interventions to be made by the national and by the Community authorities, and that it wished to ensure a control of mergers within deadlines compatible with both the requirements of sound administration and the requirements of the business world (see, to that effect, Schlüsselverlag J.S. Moser , paragraph 34).
58. Whilst it is true that non-communication by the Member State concerned may make the Commission’s task more uncertain and complex, in that the Commission might have difficulty identifying the interests protected by the national measures, the fact remains that, as the Advocate General has pointed out in paragraph 55 of his Opinion, the Commission always has the possibility of asking the Member State concerned for information. If, notwithstanding that request, the Member State does not provide the information requested, the Commission may take a decision on the basis of the information which it has at its disposal (see by analogy, in relation to State aid, Case C-301/87 France v Commission ( Boussac St Frères ) [1990] ECR I-307, paragraph 22).
59. Moreover, in a situation such as that in this case, where the Member State has not communicated the interests protected by the national measures in question, it is inevitable that the Commission will first examine whether those measures are justified by one of the interests specified in the second subparagraph of Article 21(3) of the Merger Regulation. If, in so doing, it finds that the Member State adopted the measures in question in order to ensure the protection of one of the legitimate interests enumerated in that subparagraph, it does not have to take its examination further and verify whether those measures are justified by any other public interest envisaged in the third subparagraph.
66. The Court has consistently held that the statement of reasons required by Article 253 EC must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent Community court to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in ob taining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 253 EC must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see, in particular, Joined Cases 296/82 and 318/82 Netherlands and Leeuwarder Papierwarenfabriek  v Commission  [1985] ECR 809, paragraph 19; Case C-367/95 P Commission  v Sytraval and Brink’s France  [1998] ECR I-1719, paragraph 63; and Case C-301/96 Germany  v Commission  [2003] ECR I-0000, paragraph 87).
69. Moreover, as the Advocate General emphasises in paragraph 68 of his Opinion, the contested decision was adopted in a context that was well known to the Portuguese Government, namely in the context of the proceeding for failure to fulfil obligations which led to the judgment in Commission  v Portugal  cited above, and the Portuguese Government has not supplied the least indication to the Commission as to the compatibility of the public interests protected by the measures concerned with Community law, even in reply to the Commission’s letter of 21 September 2000.
70. Having regard to that context, the Court finds that the contested decision could be reasoned in a summary manner (Case 73/74 Groupement des fabricants de papiers peints de Belgique  v Commission  [1975] ECR 1491, paragraph 31; Case C-156/98 Germany  v Commission  [2000] ECR I-6857, paragraph 105), and that therefore sufficient grounds were stated for the contested decision (C-301/96 Germany  v Commission , paragraphs 92 and 93).