Ernst & Young P/S v Konkurrencerådet.
Date: 2018-05-31
29


In that regard, it must be recalled that, in accordance with Article 267 TFEU, the Court has jurisdiction to give preliminary rulings concerning the interpretation of the Treaties and acts of the EU institutions. In the context of cooperation between the Court and the national courts, established by Article 267 TFEU, it is for the national courts alone to assess, in view of the special features of each case, both the need for a preliminary ruling in order to enable them to give their judgment and the relevance of the questions which they put to the Court. Consequently, where questions submitted by national courts concern the interpretation of a provision of EU law, the Court is, in principle, obliged to give a ruling (judgment of 14 March 2013, Allianz Hungária Biztosító and Others, C‑32/11, EU:C:2013:160, paragraph 19 and the case-law cited).
30


Applying that case-law, the Court has held many times that it has jurisdiction to give preliminary rulings on questions concerning EU law in situations where the facts of the cases being considered by the national courts were outside the direct scope of EU law but where those provisions had been rendered applicable by domestic law, which adopted, for internal situations, the same approach as that provided for under EU law. In those cases, it is clearly in the interest of the European Union that, in order to forestall future differences of interpretation, provisions or concepts taken from EU law should be interpreted uniformly, irrespective of the circumstances in which they are to apply (judgment of 14 March 2013, Allianz Hungária Biztosító and Others, C‑32/11, EU:C:2013:160, paragraph 20 and the case-law cited).
31


As regards the present reference for a preliminary ruling, it must be noted that, contrary to the Italian Law on competition at issue in the case which gave rise to the judgment of 11 December 2007, ETI and Others (C‑280/06, EU:C:2007:775, paragraphs 23 and 24), the Danish Law on competition contains no direct reference to the provisions of EU law whose interpretation is sought.
32


Similarly, contrary to the provisions of the Hungarian Law on competition at issue in the case giving rise to the judgment of 14 March 2013, Allianz Hungária Biztosító and Others (C‑32/11, EU:C:2013:160, paragraph 21), the Danish Law on competition does not exactly reproduce the provisions corresponding to Regulation No 139/2004.
40


When a textual interpretation of a provision of EU law does not permit its precise scope to be assessed, the provision in question must be interpreted by reference to its purpose and general scheme (judgment of 7 September 2017, Austria Asphalt, C‑248/16, EU:C:2017:643, paragraph 20 and the case-law cited).
41


As regards the objectives pursued by Regulation No 139/2004, it appears particularly from recital 5 thereof that the regulation seeks to ensure that the reorganisation of undertakings does not result in lasting damage to competition. Accordingly, EU law must therefore include provisions governing concentrations that may significantly impede effective competition in the internal market or in a substantial part of it. For that purpose, according to recital 6 of that regulation, it must permit effective control of all concentrations in terms of their effect on the structure of competition in the European Union (see, to that effect, judgment of 7 September 2017, Austria Asphalt, C‑248/16, EU:C:2017:643, paragraph 21).
42


It is precisely in order to ensure effective control that, as is apparent from recital 34 of Regulation No 139/2004, undertakings are obliged to give prior notification of concentrations and that their implementation should be suspended until a final decision has been taken.
43


It should be noted that, for those purposes, Article 7(1) of that regulation, which prohibits the implementation of a concentration, limits that prohibition only to concentrations as defined in Article 3 of that regulation, and thus excludes prohibition of any transaction which cannot be regarded as contributing to the implementation of a concentration.
44


It follows that, in order to define the scope of Article 7 of Regulation No 139/2004, account must be taken of the definition of the concept of concentration set out in Article 3.
45


Under that provision, a concentration is deemed to arise where a change of control on a lasting basis results from the merger of two or more previously independent undertakings or parts of undertakings, or the acquisition, by one or more persons already controlling at least one undertaking, or by one or more undertakings of direct or indirect control of the whole or parts of one or more other undertakings, that control being constituted by the possibility, conferred by rights, contracts or any other means, of exercising decisive influence on an undertaking.
46


It follows that a concentration within the meaning of Article 7 arises as soon as the merging parties implement operations contributing to a lasting change in the control of the target undertaking.
48


It is in the same vein that recital 20 of that regulation states that it is appropriate to treat as a single concentration transactions that are closely connected in that they are linked by condition or take the form of a series of transactions in securities taking place within a reasonably short period of time.
49


However, where such transactions, despite having been carried out in the context of a concentration, are not necessary to achieve a change of control of an undertaking concerned by that concentration, they do not fall within the scope of Article 7 of Regulation No 139/2004. Those transactions, although they may be ancillary or preparatory to the concentration, do not present a direct functional link with its implementation, so that their implementation is not, in principle, likely to undermine the efficiency of the control of concentrations.
54


Although it is true that, according to recital 6 of the regulation, the preventative control of all concentrations established under that regulation concerns concentrations having an effect on the structure of competition in the European Union, it does not follow that any action of undertakings not producing such effects escapes the control of the Commission or that of the competent national competition authorities (judgment of 7 September 2017, Austria Asphalt, C‑248/16, EU:C:2017:643, paragraph 30).
55


That regulation, like, in particular, Regulation No 1/2003, forms part of a legislative whole intended to implement Articles 101 and 102 TFEU and to establish a system of control ensuring that competition is not distorted in the internal market of the European Union (judgment of 7 September 2017, Austria Asphalt, C‑248/16, EU:C:2017:643, paragraph 31).
56


As follows from Article 21(1) of Regulation No 139/2004, that regulation alone is to apply to concentrations as defined in Article 3 of the regulation, to which Regulation No 1/2003 is not, in principle, applicable (judgment of 7 September 2017, Austria Asphalt, C‑248/16, EU:C:2017:643, paragraph 32).
57


By contrast, Regulation No 1/2003 continues to apply to the actions of undertakings which, without constituting a concentration within the meaning of Regulation No 139/2004, are nevertheless capable of leading to coordination between undertakings in breach of Article 101 TFEU and which, for that reason, are subject to the control of the Commission or of the national competition authorities (judgment of 7 September 2017, Austria Asphalt, C‑248/16, EU:C:2017:643, paragraph 33).