1 By its appeal, eins energie in sachsen GmbH & Co. KG seeks to have set aside the judgment of the General Court of the European Union of 17 May 2023, eins energie in sachsen v Commission (T‑318/20, EU:T:2023:262; ‘the judgment under appeal’), by which the General Court dismissed as inadmissible its action for annulment of Commission Decision C(2019) 1711 final of 26 February 2019, declaring a concentration compatible with the internal market and the EEA agreement (Case M.8871 - RWE/E.ON Assets) (OJ 2020 C 111, p. 1; ‘the decision at issue’).
2 The background to the dispute is set out in paragraphs 2 to 11 of the judgment under appeal and may be summarised as follows.
3 RWE AG is a company incorporated under German law which, when the proposed concentration was notified, was active across the whole supply chain of energy provision, including in the areas of energy generation, wholesale supply, transmission, distribution and retail supply, as well as the area of energy services to customers. RWE and its subsidiaries, including innogy SE, operate in several Member States.
4 E.ON SE is a company incorporated under German law which, when the proposed concentration was notified, operated across the whole electricity supply chain, whether that involved the generation, wholesale, distribution or retail of electricity. E.ON owns and operates electricity generation assets in several Member States.
5 The appellant is a municipal undertaking incorporated under German law which generates electricity both from conventional energy sources, by means of its cogeneration plant, and from renewable energy sources, through its wind farms and its photovoltaic plants. Its generation assets are located in Germany.
6 The concentration at issue in the present case is part of a complex asset swap between RWE and E.ON, which was announced on 11 and 12 March 2018 by the two undertakings concerned (‘the overall transaction’). Accordingly, by the first concentration operation, that is to say the concentration at issue in the present case, RWE wishes to acquire sole or joint control over certain generation assets of E.ON. The second concentration operation consists in the acquisition by E.ON of the sole control over the distribution and retail business as well as some production assets of innogy, which is controlled by RWE. As for the third concentration operation, it concerns the acquisition of 16.67% of E.ON’s shares by RWE.
7 The second concentration operation (‘operation M.8870’) was notified to the European Commission on 31 January 2019. The Commission adopted Decision C(2019) 6530 final of 17 September 2019 declaring a concentration compatible with the internal market and the functioning of the EEA agreement (Case M.8870 - E.ON/Innogy (OJ 2020 C 379, p. 16).
8 The third concentration operation was notified to the Bundeskartellamt (Federal Competition Authority, Germany), which authorised it by decision of 26 February 2019 (Case B8-28/19).
9 On 22 January 2019, the Commission received notification of a proposed concentration pursuant to Article 4 of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) (OJ 2004 L 24, p. 1), by which RWE sought to acquire sole or joint control of certain generation assets of E.ON, within the meaning of Article 3(1)(b) thereof.
10 On 31 January 2019, the Commission published in the Official Journal of the European Union the prior notification of that concentration (Case M.8871 - RWE/E.ON Assets) (OJ 2019 C 38, p. 22;‘operation M.8871’), in accordance with Article 4(3) of Regulation No 139/2004.
11 In the context of its examination of operation M.8871, the Commission conducted a market test and therefore sent a questionnaire to certain undertakings, although the appellant did not participate in that test.
12 On 26 February 2019, the Commission adopted the decision at issue by which operation M.8871 was declared compatible with the internal market during the examination phase provided for by Article 6(1)(b) of Regulation No 139/2004 and by Article 57 of the Agreement on the European Economic Area (EEA) of 2 May 1992 (OJ 1994 L 1, p. 3).
13 By application lodged at the Registry of the General Court on 27 May 2020, the appellant brought an action for annulment of the decision at issue.
14 The appellant put forward, in essence, six pleas for annulment, alleging (i) erroneous division of the analysis of the overall transaction into separate parts, (ii) breach of the duty to state reasons, (iii) breach of the right to be heard, (iv) breach of the right to effective judicial protection, (v) manifest errors of assessment and, (vi) breach of the duty of care.
15 By the judgment under appeal, the General Court dismissed the action as inadmissible, on the ground that the appellant was not individually concerned by the decision at issue, within the meaning of the fourth paragraph of Article 263 TFEU, and, consequently, did not have standing to bring proceedings.
16 In that regard, the General Court found as follows in paragraphs 24 to 31 of the judgment under appeal: ‘24 … according to well-established case-law, persons other than those to whom a decision is addressed may claim to be individually concerned only if that decision affects them by virtue of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and thus distinguishes them individually just as in the case of the person to whom the decision is addressed (see judgment of 4 July 2006, easyJet v Commission, T‑177/04, EU:T:2006:187, paragraph 34 and the case-law cited). 25 Whether a third party is individually concerned by a decision finding a concentration to be compatible with the internal market depends, on the one hand, on that third party’s participation in the administrative procedure and, on the other, on the effect on its market position. Whilst mere participation in the procedure is not sufficient to establish that the decision is of individual concern to the applicant, particularly in the field of merger control, the careful examination of which requires regular contact with numerous undertakings, active participation in the administrative procedure is a factor regularly taken into account in the case-law on competition, including in the more specific area of merger control, to establish, in conjunction with other specific circumstances, the admissibility of the action (see judgment of 4 July 2006, easyJet v Commission, T‑177/04, EU:T:2006:187, paragraph 35 and the case-law cited). 26 It is in the light of the case-law referred to in paragraph 25 above that the [General] Court adopted a measure of organisation of procedure inviting the parties to submit, at the hearing, their observations on the absolute bar to proceeding which it was considering raising of its own motion. 27 It should be noted that the [appellant] sent a letter to the Commission on 18 February 2019, but that that letter contained, contrary to the [appellant]’s claims, only observations on [operation] M.8870. Moreover, it did not participate in the market test carried out in the context of the procedure relating to [operation] M.8871, but in the procedure relating to [operation] M.8870. As regards the individual meeting held with the Commission on 15 April 2019, it must be stated that that meeting took place after the adoption of the [decision at issue] and concerned, in any event, [operation] M.8870. On the other hand, it is not apparent from the documents before the Court that the [appellant] sent a letter to the Commission in order to submit observations on [operation] M.8871 or in order to notify it of its intention to participate in the relevant procedure before the adoption of the [decision at issue]. 28 In that regard, it is true that, in its response to the third plea, alleging infringement of the [appellant’s] right to be heard, the Commission submits, in the defence, that the [appellant] was given the opportunity to participate fully in the procedure, in particular by means of the market test to which it responded, and that the [appellant] was heard by the Commission. However, the Commission stated at the hearing that this was a clerical error and that the [appellant] had neither participated in the market test nor been heard by the Commission following a request to that effect made by the [appellant]. 29 It follows from the foregoing that the [appellant] did not participate in the administrative procedure. 30 Moreover, at the hearing, the [appellant] did not put forward any other argument to show that it had approached the Commission in order to participate in the administrative phase. 31 Since the [appellant] did not actively participate in the procedure relating to [operation] M.8871, it must be held, having regard, moreover, to the absence of specific circumstances relating to effects on its market position, that the [appellant] is not individually concerned by the [decision at issue], within the meaning of the case-law recalled in paragraph 25 above.’
17 By application lodged at the Registry of the Court of Justice on 21 July 2023 the appellant brought the present appeal.
18 On the same day, the appellant, which, moreover, had brought, during 2021, an action for annulment of Decision C(2019) 6530 final (Case T‑59/21), still pending before the General Court on 21 July 2023, requested that the examination of the present appeal be stayed pending delivery of the judgment of the General Court in that action for annulment.
19 By decision of 19 September 2023, the President of the Court of Justice, after hearing the parties on that request for a stay of proceedings and on a possible joinder of nine appeals - including the present appeal - in Cases C‑464/23 P, C‑465/23 P, C‑466/23 P, C‑467/23 P, C‑468/23 P, C‑469/23 P, C‑470/23 P, C‑484/23 P and C‑485/23 P brought against the judgments of the General Court in Cases T‑312/20, T‑313/20, T‑314/20, T‑315/20, T‑317/20, T‑318/20, T‑319/20, T‑320/20 and T‑321/20, dismissed that request for a stay of proceedings and ordered that only the appeals in Cases C‑464/23 P, C‑465/23 P, C‑467/23 P, C‑468/23 P and C‑470/23 P concerning judgments of the General Court delivered on the substance, to the exclusion of the other four appeals, including the present appeal, brought against judgments delivered by the General Court declaring the actions inadmissible, be joined.
20 The appellant claims that the Court of Justice should: - set aside the judgment under appeal and annul the decision at issue; - in the alternative and in any event, refer the case back to the General Court for it to make all necessary decisions; and - order the Commission to pay the costs, including lawyers’ fees and travel expenses incurred by the appellant in the proceedings before the General Court.
21 The Commission and the other parties contend that the Court of Justice should: - dismiss the appeal and - order the appellant to pay the costs.
22 In support of its appeal, the appellant relies on six grounds of appeal, alleging breach of the obligation to state reasons, distortion of the facts and breach of its procedural rights (first ground of appeal), misapplication of the fourth paragraph of Article 263 TFEU (second ground), misapplication of Article 101 TFEU (third ground), misapplication of Article 3 of Regulation No 139/2004 (fourth ground), misapplication of Article 2 of that regulation (fifth ground) and breach of the principles governing the allocation of the burden of proof (sixth ground).
23 It is appropriate to begin by examining the second ground of appeal and then to examine the first ground of appeal.
24 By the first part of the second ground of appeal, the appellant submits that, in the case of a decision finding a concentration to be compatible with the internal market, it is not necessary, in order for a third-party undertaking to be regarded as individually concerned by that decision, within the meaning of the fourth paragraph of Article 263 TFEU, that it should have formally participated in the administrative procedure. It is sufficient, from a procedural point of view, for that person to have been granted rights of participation, information and consultation in the event of potential harm to its material interests.
25 However, the General Court relied solely, in paragraphs 27 to 31 of the judgment under appeal, on the appellant’s lack of formal participation in the procedure relating to operation M.8871. Although participation in a procedure may be taken as an indication for the purpose of determining whether a person is individually concerned by an act, within the meaning of the fourth paragraph of Article 263 TFEU, that participation cannot constitute a mandatory condition in the case of a complex transaction carried out in several stages, such as the overall transaction. What is decisive is that, by means of a study prepared by an economic consultancy firm on the Residual Supply Index, which it co-financed, the appellant influenced the content of the decision at issue, as evidenced by the wording of that decision. Moreover, the procedure relating to operation M.8871 was artificially disjoined by the Commission from the procedure relating to operation M.8870.
26 The Commission, supported by E.ON and RWE, contests the appellant’s arguments.
27 As a preliminary point, it must be noted that, in accordance with the fourth paragraph of Article 263 TFEU, a natural or legal person may institute proceedings against a decision addressed to another person only if that decision is of direct and individual concern to the former.
28 In that regard, it is settled case-law of the Court that persons other than those to whom a decision is addressed may claim to be individually concerned only if that decision affects them by virtue of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and thus distinguishes them individually just as in the case of the person to whom such a decision is addressed (judgment of 14 September 2023, Land Rheinland-Pfalz v Deutsche Lufthansa, C466/21 P, EU:C:2023:666, paragraph 77 and the case-law cited).
29 Whether a third party is individually concerned by a decision finding a concentration to be compatible with the internal market depends on a body of consistent evidence or on facts which may relate both to that undertaking’s participation in the administrative procedure and to the effect on its market position. Whilst mere participation in the procedure is not sufficient to establish that the decision is of individual concern to the applicant, particularly in the field of merger control, the careful examination of which requires regular contact with numerous undertakings, active participation in the administrative procedure is a factor regularly taken into account in the case-law on competition, including in the more specific area of merger control, to establish, in conjunction with other specific circumstances, the admissibility of the action. In addition, the current and future position of an undertaking not party to a concentration on a market which may be influenced by that concentration must be substantially affected if that undertaking is to be individually concerned by the decision finding that the concentration is compatible with the internal market (see, to that effect, judgment of 31 March 1998, France and Others v Commission, C‑68/94 and C‑30/95, EU:C:1998:148, paragraphs 54 to 56 and the case-law cited).
30 It follows that, in the assessments set out in paragraphs 24 and 25 of the judgment under appeal and essentially reproducing that case-law - from which it follows that mere participation in the administrative procedure is not sufficient for a third-party undertaking to be regarded as individually concerned within the meaning of the fourth paragraph of Article 263 TFEU - the General Court did not err in law.
31 Next, the General Court found, in paragraph 29 of the judgment under appeal, that the appellant had not participated in the procedure relating to operation M.8871 and added, in paragraph 30 of that judgment, that it had not put forward, at the hearing, any argument to show that it had approached the Commission in order to participate in that procedure. The appellant does not dispute those findings of the General Court.
32 As regards the appellant’s argument that what is decisive is not the issue of its formal participation in the procedure relating to operation M.8871, but rather its actual influence, by means of the study referred to in paragraph 25 of the present judgment, on the content of the decision at issue, it should be observed that, in recitals 59 to 65 of that decision, the Commission did indeed examine several studies relating to the Residual Supply Index which were submitted to it both by the parties to the concentration and by third parties. However, the mere fact that the appellant co-financed one of those studies is not sufficient for it to be considered that it actively participated in the administrative procedure, within the meaning of the case-law referred to in paragraph 29 of the present judgment.
33 Moreover, as regards the argument that the procedure relating to operation M.8871 was artificially separated from the procedure relating to operation M.8870, it should be noted that the appellant does not put forward in that regard any evidence capable of demonstrating that the General Court erred in law in its interpretation of the conditions of admissibility laid down in the fourth paragraph of Article 263 TFEU. By that argument, the appellant is in fact seeking to criticise not specific paragraphs of the judgment under appeal but the Commission’s substantive decision to approve each of those two operations individually. That argument must therefore be rejected as inadmissible.
34 In those circumstances, the first part of the second ground of appeal must be rejected.
35 By the second part of the second ground of appeal, the appellant submits, first, that the General Court failed to have regard to the fact that the condition that a person must be individually concerned by the act which he or she seeks to have annulled may be established by ‘other specific circumstances’. In particular, the General Court failed to examine the evidence put forward in its application, such as the specific features of the market, the considerable amount of the investments which it had made, its position as a direct competitor of RWE or the consequences of the concentration on its competitive position.
36 Second, the appellant submits that, where there are several applicants, an action as a whole is admissible where only one of the applicants is individually concerned and it adds that the same applies in the case of actions brought separately by several applicants. Thus, according to the appellant, the General Court erred in the light of the fourth paragraph of Article 263 TFEU by not joining its action with other parallel actions which have been declared admissible.
37 The Commission, supported by E.ON and RWE, contests the appellant’s arguments.
38 As regards the appellant’s first argument, it should be noted that, by that argument, it criticises the General Court, in essence, for failing to examine the evidence which it put forward in its application in order to demonstrate the existence, in the present case, of specific circumstances making it possible to establish that it was individually concerned by the decision at issue.
39 In that regard, it is apparent from the case-law of the Court of Justice, first, that, in the context of an appeal, the purpose of review by the Court of Justice is inter alia to ascertain whether the General Court addressed, to the requisite legal standard, all the arguments put forward by the appellant; and, second, that a plea alleging that the General Court failed to address arguments relied on at first instance amounts essentially to alleging a failure to comply with the obligation to state reasons (judgment of 14 September 2023, Land Rheinland-Pfalz v Deutsche Lufthansa, C‑466/21 P, EU:C:2023:666, paragraph 93 and the case-law cited).
40 That first argument thus concerns the General Court’s obligation to state reasons, which is the subject of the first ground of appeal, and will therefore be examined in the context of that ground.
41 As regards the second argument, according to which the decision of the General Court not to join its action with other actions also directed against the decision at issue but declared admissible constituted an error in the light of the fourth paragraph of Article 263 TFEU, thereby frustrating the grant of admissibility which economy of procedure nevertheless required, it should be noted that a decision on the joinder or disjoinder of cases constitutes a measure of internal organisation of the General Court, which is not subject to review by the Court of Justice (see, to that effect, order of 14 December 1995, Hogan v Court of Justice, C‑173/95 P, EU:C:1995:461, paragraph 15).
42 Moreover, since an order for joinder does not affect the independence and autonomy of the cases which it covers (judgment of 21 June 2001, Moccia Irme and Others v Commission, C‑280/99 P to C‑282/99 P, EU:C:2001:348, paragraph 66), an action brought by an applicant which does not satisfy the conditions governing admissibility laid down in the fourth paragraph of Article 263 TFEU is inadmissible irrespective of any joinder, pursuant to Article 68 of the Rules of Procedure of the General Court, with another action which the General Court has held to be admissible.
43 In those circumstances, and subject to the reservation expressed in paragraph 40 of the present judgment, the second part of the second ground of appeal and, consequently, the second ground of appeal in its entirety, must be rejected.
44 By the first part of the first ground of appeal, the appellant submits that the General Court dismissed its action on the ground that it did not participate in the administrative procedure relating to operation M.8871. The judgment under appeal does not specify whether the material prejudice to its position on the market, relied on by the appellant, is irrelevant or why it is, but merely refers, in paragraph 31, to an ‘absence of specific circumstances relating to effects on its market position’. It is not apparent from that paragraph that the General Court examined whether, under the fourth paragraph of Article 263 TFEU, a party may be individually concerned even in the absence of formal participation in the procedure. The appellant argued that it was a direct competitor of RWE and that its interests were specifically adversely affected. A statement of reasons which fails to respond to arguments of that nature is vitiated by error.
45 By the second part of the first ground of appeal, the appellant submits that the application at first instance, supplemented inter alia by its written observations of 7 July 2021 on RWE’s statement in intervention and its oral observations at the hearing, contained a full account of its investments and their scale, its activities in competition with RWE in the generation of electricity, the way in which it is specifically concerned and the adverse effect on its position on the market. However, by its finding in paragraph 31 of the judgment under appeal, the General Court suggested that the appellant had not relied on any specific circumstances, thereby distorting the appellant’s arguments.
46 By the third part of the first ground of appeal, the appellant submits that the right to an effective remedy and to impartiality in the context of a fair trial, enshrined in Article 47 of the Charter of Fundamental Rights of the European Union, means that the General Court must acquaint itself with the observations of the parties and take them into account in reaching its decision, even if it is not bound by the content of those observations. It also follows from that right that the General Court must state the relevant reasons for its decision and respond to the objections. The more significant a fact or a legal argument is, the more important it is for the reasoning to respond to the arguments of the parties. The substantive effect is a central aspect of admissibility, on which the General Court should have ruled in its examination of its own motion.
47 The Commission, supported by E.ON and RWE, contends that the General Court gave sufficient reasons as to why the appellant’s position on the market was not affected, by satisfying the requirements laid down by the Court of Justice with regard to the statement of reasons for judgments. The General Court specified that it had not identified specific circumstance relating to effects on that position and, in so doing, found that there was nothing to differentiate the appellant from other competitors.
48 By the three parts of the first ground of appeal and by the argument referred to in paragraph 38 of the present judgment, formulated in the context of the second part of the second ground of appeal, which it is appropriate to examine together, the appellant is in fact alleging infringement by the General Court of the obligation to state reasons in relation to its standing to bring proceedings.
49 It should be recalled that, according to settled case-law, the statement of the reasons on which a judgment is based must clearly and unequivocally disclose the General Court’s reasoning (judgment of 11 June 2015, EMA v Commission, C100/14 P, EU:C:2015:382, paragraph 67 and the case-law cited), since the General Court’s obligation to state reasons under Article 36 and the first paragraph of Article 53 of the Statute of the Court of Justice of the European Union does not require the General Court to provide an account that follows exhaustively and one by one all the arguments articulated by the parties to the case. Although the reasoning may therefore be implicit, it must nonetheless enable the persons concerned to know why the General Court has not upheld their arguments and provide the Court of Justice with sufficient material for it to exercise its power of review on appeal (judgment of 18 June 2020, Primart v EUIPO, C‑702/18 P, EU:C:2020:489, paragraph 61 and the case-law cited).
50 In the present case, after recalling, in paragraph 21 of the judgment under appeal, that, in accordance with the fourth paragraph of Article 263 TFEU, a natural or legal person may institute proceedings against a decision addressed to another person only if that decision is of direct and individual concern to the former, the General Court set out, in paragraphs 24 to 31 of that judgment, the grounds on which it based its conclusion that the appellant was not individually concerned within the meaning of that provision by the decision at issue.
51 In particular, in paragraph 24 of that judgment, the General Court recalled the settled case-law referred to in paragraph 28 of the present judgment.
52 In paragraph 25 of the judgment under appeal, the General Court stated that whether a third party is individually concerned by a decision finding a concentration to be compatible with the internal market depends, on the one hand, on that third party’s participation in the administrative procedure and, on the other, on the effect on its market position. In paragraph 25, the General Court also stated that whilst mere participation in the procedure is not sufficient to establish that the decision is of individual concern to an applicant, particularly in the field of merger control, the careful examination of which requires regular contact with numerous undertakings, active participation in the administrative procedure is a factor regularly taken into account in the case-law on competition, including in the more specific area of merger control, to establish, in conjunction with other specific circumstances, the admissibility of the action.
53 Next, the General Court examined, in paragraphs 27 to 30 of the judgment under appeal, whether it could be considered that the appellant had participated in the procedure relating to operation M.8871 and concluded that it had not actively participated in that procedure.
54 Lastly, in paragraph 31 of that judgment, the General Court stated that, since the appellant had not actively participated in that procedure, it had to be held, having regard, moreover, to the absence of specific circumstances relating to effects on its market position, that the appellant was not individually concerned by the decision at issue.
55 However, as the appellant states in support of its appeal, it had relied, both in the application and in RWE’s observations on RWE’s statement in intervention, on a number of factors relating to the allegedly substantial effect on its market position following operation M.8871, which, in its view, were capable of establishing that the decision at issue was of individual concern to it, within the meaning of the fourth paragraph of Article 263 TFEU.
56 It must be held that, by merely finding that there were no specific circumstances relating to effects on the appellant’s market position, the General Court did not provide any statement of reasons - not even a brief one - enabling (i) the appellant to understand whether the arguments that it put forward to claim that its market position was substantially affected were examined and, if so, why they were considered to be incapable of establishing such effects and (ii) the Court of Justice to have sufficient material for it to exercise its power of review, as required by the case-law referred to in paragraph 49 of the present judgment.
57 In those circumstances, the General Court infringed its obligation to state reasons under Article 36 and the first paragraph of Article 53 of the Statute of the Court of Justice of the European Union.
58 It follows that the first ground of appeal and the argument referred to in paragraph 38 of the present judgment, formulated in the context of the second part of the second ground of appeal, must be upheld.
59 Consequently, the judgment under appeal must be set aside in so far as the General Court found, in paragraph 31 of that judgment, that there were no specific circumstances relating to effects on the appellant’s market position and concluded, in paragraph 32 of that judgment, by relying, inter alia, on that ground, that the appellant is not individually concerned by the decision at issue, with the result that its action had to be dismissed as inadmissible.
60 In accordance with the second sentence of the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, if the decision of the General Court is set aside, the Court of Justice may itself give final judgment in the matter, where the state of the proceedings so permits.
61 That is the case here.
62 It must be borne in mind, as is apparent from paragraph 29 of the present judgment, that, for the purpose of assessing the appellant’s standing to bring proceedings, the current and future position of an undertaking not party to a concentration on a market which may be influenced by that concentration must be substantially affected if that undertaking is to be individually concerned by the decision finding that the concentration is compatible with the internal market. In the latter regard, the mere fact that a measure such as the decision at issue may exercise an influence on the competitive relationships existing on the relevant market and that the undertaking concerned was in a competitive relationship with the addressee of that measure cannot in any event suffice for that undertaking to be regarded as individually concerned by that measure (see, by analogy, judgment of 22 November 2007, Spain v Lenzing, C525/04 P, EU:C:2007:698, paragraph 32).
63 It must be stated that the considerations put forward by the appellant in its action before the General Court, in so far as they concern its own market position, consist, in essence, in referring to its shareholding, the number of employees that it employs, its activities on the market or indeed the specific features of the market, without, however, showing how those circumstances and activities, whether as a competitor or investor, are such as to distinguish it individually just as in the case of the addressees of the decision at issue. Those circumstances and activities are capable of characterising any other energy producer and do not make it possible to distinguish the appellant in a singular manner from its other competitors on the market.
64 The same finding must be made in the light of the other arguments put forward by the appellant in its action relating, first, to the fact that it must purchase electricity from the upstream network in order to ensure security of supply for its customers, who must bear the increase in the related charges observed in recent years and, second, to the strengthening of RWE’s role as a partner of energy suppliers, and of its argument, submitted in the context of its observations of 7 July 2021 on RWE’s statement in intervention and based on the creation of a ‘production giant which is detrimental to competition’.
65 It follows that the appellant has not established that its market position is substantially affected by the operation concerned. Furthermore, as is apparent from paragraph 29 of the present judgment, even active participation in the administrative procedure relating to a concentration, which, moreover, has not been established in the present case, as is apparent from paragraphs 31 and 32 of the present judgment, cannot be regarded as sufficient to establish that a decision declaring that concentration compatible with the internal market is of individual concern to an undertaking, within the meaning of the fourth paragraph of Article 263 TFEU.
66 Consequently, the appellant has not established that it is individually concerned by the decision at issue, within the meaning of the fourth paragraph of Article 263 TFEU. Since the conditions of direct and individual concern laid down in that provision are cumulative, as is apparent from paragraph 27 of the present judgment, its action for annulment must be dismissed as inadmissible.
67 In those circumstances, there is no need to rule on the third to sixth grounds of appeal, which contain substantive arguments based on the incorrect premiss that the action at first instance was admissible.
68 Under Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is well founded and the Court itself gives final judgment in the case, the Court is to make a decision as to the costs. Under Article 138(3) of the Rules of Procedure, applicable to appeal proceedings by virtue of Article 184(1) of those rules, where each party succeeds on some heads and fails on others, the parties are to bear their own costs.
69 In the present case, since the appellant’s first ground of appeal and the argument referred to in paragraph 38 of the present judgment have been upheld and its action for annulment has been dismissed, each party must be ordered to bear its own costs.
70 Article 140(1) of the Rules of Procedure, which is also applicable to appeal proceedings, provides that the Member States which have intervened in the proceedings are to bear their own costs. The Federal Republic of Germany is therefore to bear its own costs.