European Commission v United Parcel Service, Inc.
Date: 2019-01-16
11


In that regard, it should be borne in mind that, in accordance with Article 256 TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, an appeal lies on points of law only. The General Court thus has exclusive jurisdiction to find and appraise the relevant facts and to assess the evidence. The appraisal of those facts and the assessment of that evidence thus do not, save where the facts and evidence have been distorted, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal (judgment of 26 January 2017, Masco and Others v Commission, C‑614/13 P, EU:C:2017:63, paragraph 35 and the case-law cited).
14


It is indeed the case that an appeal is inadmissible in so far as it merely repeats the pleas in law and arguments previously submitted to the General Court, including those based on facts expressly rejected by it. Such an appeal amounts in reality to no more than a request for re-examination of the application submitted to the General Court, which the Court of Justice does not have jurisdiction to undertake on appeal (judgment of 10 November 2016, DTS Distribuidora de Televisión Digital v Commission, C‑449/14 P, EU:C:2016:848, paragraph 28).
15


On the other hand, provided that the appellant challenges the interpretation or application of EU law by the General Court, the points of law examined at first instance may be discussed again in the course of an appeal. If an appellant could not thus base his appeal on pleas in law and arguments already relied on before the General Court, an appeal would be deprived of part of its purpose (judgment of 10 November 2016, DTS Distribuidora de Televisión Digital v Commission, C‑449/14 P, EU:C:2016:848, paragraph 29).
24


In the second place, the Commission disputes the reasoning in paragraphs 199 and 200 of the judgment under appeal, which the General Court relied on when it found, in paragraph 209 of that judgment, that the Commission was required to disclose to UPS the final version of the model before adopting the decision at issue. It submits that the reference to the judgment of 10 July 2008, Bertelsmann and Sony Corporation of America v Impala (C‑413/06 P, EU:C:2008:392, paragraph 61), in paragraph 200 of the judgment under appeal, is irrelevant. It is apparent from that judgment that, although the Commission cannot, in its final decision, rely on objections other than those communicated to the undertakings, such communication is nonetheless provisional and subject to amendments, as the only requirement in that regard is that reasons be given in support of the final decision.
28


As a preliminary point, it should be noted that observance of the rights of the defence is a general principle of EU law which applies where the authorities are minded to adopt a measure which will adversely affect an individual (judgment of 18 December 2008, Sopropé, C‑349/07, EU:C:2008:746, paragraph 36).
29


For merger control procedures, that principle is laid down in Article 18(3) of Regulation No 139/2004 and, in more detail, in Article 13(2) of Regulation No 802/2004. Those provisions require, among other things, that written notice be given to the notifying parties of the Commission’s objections, with an indication to those parties of the period within which they may inform the Commission of their views in writing (judgment of 10 July 2008, Bertelsmann and Sony Corporation of America v Impala, C‑413/06 P, EU:C:2008:392, paragraph 62).
30


Those provisions are supplemented by those relating to access to the file, which is a corollary of the principle of respect for the rights of the defence (judgment of 7 January 2004, Aalborg Portland and Others v Commission, C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6, paragraph 68). Accordingly, it is apparent from Article 18(3) of Regulation No 139/2004 and from Article 17 of Regulation No 802/2004 that, after the statement of objections has been disclosed, access to the file is open to the parties directly involved, subject, inter alia, to the legitimate interest of undertakings in ensuring that their commercial secrets are not disclosed, such access to documents not extending to confidential information or to the internal documents of the Commission or the competent authorities of Member States.
31


Observance of the rights of the defence before the adoption of a decision relating to merger control therefore requires the notifying parties to be put in a position in which they can make known effectively their views on the accuracy and relevance of all the factors that the Commission intends to base its decision on (see, by analogy, judgment of 22 October 2013, Sabou, C‑276/12, EU:C:2013:678, paragraph 38 and the case-law cited).
32


As regards the econometric models used in merger control procedures, it should be recalled that the necessary prospective analysis consists of an examination of how a concentration might alter the factors determining the state of competition on the markets affected. Such an analysis makes it necessary to envisage various chains of cause and effect with a view to ascertaining which of them are the most likely (judgment of 15 February 2005, Commission v Tetra Laval, C‑12/03 P, EU:C:2005:87, paragraphs 42 and 43).
33


To that end, the use of econometric models allows better understanding of the planned operation by identifying and, where relevant, quantifying some of its effects, and thus contributes to the quality of the Commission’s decisions. It is therefore necessary that, where the Commission intends to base its decision on such models, the notifying parties are able to submit their observations in that regard.
34


The disclosure of such models and methodological choices underlying their development is all the more necessary as it contributes, as the Advocate General observed in point 43 of her Opinion, to ensuring that the procedure is fair, in accordance with the principle of good administration enshrined in Article 41 of the Charter of Fundamental Rights of the European Union.
36


Admittedly, the statement of objections is inherently provisional and subject to amendments to be made by the Commission in its further assessment on the basis of the observations submitted to it by the parties and subsequent findings of fact (judgment of 10 July 2008, Bertelsmann and Sony Corporation of America v Impala, C‑413/06 P, EU:C:2008:392, paragraph 63). Because it is provisional, the statement of objections does not prevent the Commission from altering its standpoint in favour of the undertakings concerned and it is not obliged, in doing so, to explain any differences with respect to its provisional assessments as set out in that statement (judgment of 10 July 2008, Bertelsmann and Sony Corporation of America v Impala, C‑413/06 P, EU:C:2008:392, paragraphs 63 to 65).
38


Moreover, it must be noted that the need for speed, which characterises the general scheme of Regulation No 139/2004, requires the Commission to comply with strict time limits for the adoption of the final decision (judgment of 10 July 2008, Bertelsmann and Sony Corporation of America v Impala, C‑413/06 P, EU:C:2008:392, paragraph 49). The Commission is required to reconcile this need for speed with observance of the rights of the defence.
45


In the first and second parts of the second ground of appeal and the first and second parts of the fourth ground, the Commission challenges the General Court’s assessment, in paragraph 210 of the judgment under appeal, by which it held that ‘the applicant’s rights of defence were infringed, with the result that the [decision at issue] should be annulled, provided that it has been sufficiently demonstrated by the applicant not that, in the absence of that procedural irregularity, the [decision at issue] would have been different in content, but that there was even a slight chance that it would have been better able to defend itself (see, to that effect, judgment of 25 October 2011, Solvay v Commission, C‑109/10 P, EU:C:2011:686, paragraph 57)’.
48


The Commission infers from this that the General Court should have applied the rule on the infringement of the rights of the defence resulting from the failure to disclose incriminating evidence established in the judgment of 7 January 2004, Aalborg Portland and Others v Commission (C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6, paragraphs 72 and 73), according to which the removal as evidence of an incriminating document not disclosed can lead to the annulment of the contested decision only in the absence of any other documentary evidence of which the parties were aware during the administrative procedure.
53


As stated in paragraphs 32 to 34 above, econometric models are, by their nature and purpose, quantitative tools appropriate for the purpose of carrying out the prospective analysis that the Commission undertakes in merger control proceedings. The methodological basis underpinning those models must be as objective as possible in order not to prejudge the outcome of that analysis one way or another. Accordingly, those factors contribute to the impartiality and quality of the Commission’s decisions which, ultimately, is the basis of the trust that the public and businesses place in the legitimacy of the Union’s merger control procedure.
56


It follows from the above that the General Court did not err in law when it held, in paragraph 210 of the judgment under appeal that ‘the applicant’s rights of defence were infringed, with the result that the [decision at issue] should be annulled, provided that it has been sufficiently demonstrated by the applicant not that, in the absence of that procedural irregularity, the [decision at issue] would have been different in content, but that there was even a slight chance that it would have been better able to defend itself (see, to that effect, judgment of 25 October 2011, Solvay v Commission, C‑109/10 P, EU:C:2011:686, paragraph 57).’
60


Accordingly, the Commission argues that the General Court failed to adjudicate on the Commission’s arguments, summarised in paragraph 181 of the judgment under appeal, in which it submitted that, as the statement of objections is only provisional, it was entitled to revise or add elements subsequently, provided that the decision contained the same objections as those already disclosed to the parties. However, the failure to take into consideration, in a legally correct manner, any argument on which a party relied at first instance is an error of law (judgment of 2 April 2009, France Télécom v Commission, C‑202/07 P, EU:C:2009:214, paragraph 41). Given the absence of any explanation as to why it considered that it was not necessary to address the Commission’s principal argument, the General Court infringed its obligation to state reasons (judgment of 19 December 2012, Mitteldeutsche Flughafen and Flughafen Leipzig-Halle v Commission, C‑288/11 P, EU:C:2012:821, paragraph 83).