1 By its appeal, enercity AG seeks to have set aside the judgment of the General Court of the European Union of 17 May 2023, enercity v Commission (T‑321/20, ‘the judgment under appeal’, EU:T:2023:253), 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 14 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 regional energy supply and generation undertaking 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 On 24 July 2018, the appellant sent a letter to the European Commission, in which it expressed its wish to participate in the procedure relating to the first and second concentration operations and, consequently, to receive the related documents.
8 On 3 October 2018, a meeting was held between the appellant and the Commission.
9 The second concentration operation (‘operation M.8870’) was notified to the 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).
10 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).
11 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.
12 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.
13 In the context of its examination of operation M.8871, the Commission conducted a market test and therefore sent to certain undertakings, including the appellant, a questionnaire to which the appellant responded on 4 February 2019.
14 By letter of 28 January 2019, the appellant requested that the hearing officer recognise it as being an interested third party for the purpose of being heard in the procedure relating to operation M.8871. The hearing officer granted that request by letter of 7 February 2019.
15 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).
16 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.
17 The appellant put forward six pleas for annulment, alleging (i) breach of its right to effective judicial protection, (ii) breach of its right to be heard, (iii) erroneous division of the analysis of the overall transaction into separate parts, (iv) manifest errors of assessment, (v) breach of the duty of care, and (vi) misuse of powers.
18 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.
19 In that regard, in paragraphs 28 to 58 of the judgment under appeal, the General Court examined the extent and significance of the appellant’s participation in the administrative phase relating to operation M.8871 and noted, in essence, that the observations made by the appellant, although they bore some relevance and were dealt with by the Commission, were not conclusive with respect to assessing the effects of that operation on the relevant market. Thus, after rejecting certain arguments put forward by the appellant seeking to call that assessment into question, the General Court came to the conclusion that the appellant had not actively participated in the administrative phase relating to operation M.8871. In view, moreover, of the absence of specific circumstances relating to effects, by that operation, on the appellant’s market position, the General Court held that the appellant was not individually concerned by the decision at issue, within the meaning of the fourth paragraph of Article 263 TFEU.
20 By application lodged at the Registry of the Court of Justice on 27 July 2023, the appellant brought the present appeal.
21 On the same day, the appellant, which, moreover, had brought, during 2021, an action for annulment of Decision C(2019) 6530 final (Case T‑65/21), which was still pending before the General Court on 27 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.
22 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 four other appeals, including the present appeal, brought against judgments delivered by the General Court declaring the actions inadmissible, be joined.
23 The appellant claims that the Court should: - set aside the judgment under appeal and annul the decision at issue; - in the alternative, set aside the judgment under appeal and refer the case back to the General Court; and - order the Commission to pay the costs at first instance and on appeal.
24 The Commission and the other parties contend that the Court of Justice should: - dismiss the appeal; and - order the appellant to pay the costs.
25 In support of its appeal, the appellant relies on four grounds of appeal, alleging misinterpretation of the fourth paragraph of Article 263 TFEU (first ground of appeal), breach of the principle and rules of the rule of law (second ground), erroneous division of the administrative procedures (third ground) and errors in taking into consideration the Investor Relationship Agreement concluded between RWE and E.ON (fourth ground).
26 It is appropriate to examine, first of all, the first and third parts of the first ground of appeal, then the second ground of appeal and, lastly, the second part of the first ground of appeal.
27 By the first part of the first ground of appeal, the appellant submits that the General Court erred in law by referring only to the degree of its participation in the procedure and in finding, subsequently, that its participation in the administrative procedure had been insignificant and that its contribution was not such as to influence the outcome of that procedure. The erroneous nature of such an assessment is demonstrated by the fact that, on the basis of the Commission’s assessment of the actual influence on the outcome of the procedure, the Commission is in a position to decide on locus standi. In reality, it is sufficient that the contribution of the applicant concerned is only capable of influencing the outcome of the procedure. In addition, the appellant submits that, as shown in recitals 68 and 69 of the decision at issue, the Commission took account of the observations that it had expressed, so that it influenced the outcome of the procedure. Consequently, the General Court’s position concerning the inadequacy of the appellant’s contribution has no basis in law or in fact.
28 In addition, the General Court overlooked the fact that the appellant’s participation in the procedure relating to operation M.8871 had to be examined in conjunction with its participation in the procedure relating to operation M.8870.
29 The Commission, supported by E.ON and RWE, contests the appellant’s arguments.
30 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.
31 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 the decision is addressed (judgment of 14 September 2023, Land Rheinland-Pfalz v Deutsche Lufthansa, C‑466/21 P, EU:C:2023:666, paragraph 77 and the case-law cited).
32 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. As the General Court correctly observed in paragraph 29 of the judgment under appeal, whilst mere participation in the administrative 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).
33 As regards the complaint concerning the General Court’s assessment that the appellant’s participation in the administrative procedure was too weak to be classified as active, that assessment is not vitiated by any error of law.
34 The General Court correctly recalled, in paragraphs 28 and 29 of the judgment under appeal, the applicable case-law, namely the case-law referred to in paragraphs 31 and 32 of the present judgment.
35 Moreover, in paragraph 32 of that judgment, it noted, without being contradicted, that, at the meeting of 3 October 2018 with the Commission, which was to relate to operations M.8870 and M.8871, the presentation prepared by the appellant related only marginally to operation M.8871 and, more specifically, to the competitive advantage obtained by RWE in the allocation of subsidies for the development and construction of new renewable energy generation assets. In addition, the General Court went onto note in paragraph 32 that the minutes of that meeting also showed that the discussions had related essentially to operation M.8870.
36 After describing, in paragraphs 31 to 34 of that judgment, the various ways in which the appellant had participated in the administrative procedure, the General Court found, in paragraph 35 of that judgment, without proof to the contrary having been adduced, that, as regards operation M.8871, the only operation at issue in the present case, the appellant’s observations had been limited to one page out of twenty of the presentation prepared by the appellant, the content of which was reproduced exhaustively in the three paragraphs of the minutes of the meeting of 3 October 2018 relating to that operation. As regards the observations made by the appellant in its letter of 24 July 2018, the General Court observed that they were of a general nature and were intended primarily to demonstrate the appellant’s interest in the procedure, so that it would, subsequently, be permitted to set out, at greater length and in greater detail, its views to the Commission, and those observations are therefore not decisive.
37 The General Court also noted, in paragraphs 37 and 38 of the judgment under appeal, as regards the only considerations expressed by the appellant concerning concentration M.8871, set out on that page of its presentation, that they had not been decisive, since they had been examined by the Commission for the sake of completeness, after the Commission had already concluded that there were no serious doubts as to the compatibility of operation M.8871 with the internal market.
38 Lastly, the General Court concluded, in paragraphs 41 to 48 of the judgment under appeal, without being contradicted, that the appellant had indeed received the market test questionnaire but had not responded to it and it correctly observed, in paragraph 50 of that judgment, that the response to such a questionnaire could not, in any event, be regarded, as such, as sufficient to distinguish an operator individually.
39 In so far as the appellant claims that the General Court did not take account of the fact that it is apparent from recitals 68 and 69 of the decision at issue that the Commission took its observations into consideration during the administrative procedure, it must be stated that, in those recitals, the Commission addresses concerns of certain third parties to the concentration without it being established that the appellant was one of those third parties.
40 Furthermore, it is to no avail that the appellant relies on the judgments of 3 April 2003, BaByliss v Commission (T‑114/02, EU:T:2003:100), and of 4 July 2006, easyJet v Commission (T‑177/04, EU:T:2006:187), in order to infer that it participated in the administrative procedure beyond what is required by the case-law. It must be observed that, in the cases which gave rise to those judgments, the parties had, unlike what was the situation in the present case, submitted detailed observations on the procedure in question, replied to questions put by the Commission and participated in discussions in that regard.
41 It is also to no avail that the appellant submits, referring to the judgment of the Court of Justice of 28 January 1986, Cofaz and Others v Commission (169/84, EU:C:1986:42), and to the judgment of the General Court of 21 October 2004, Lenzing v Commission (T‑36/99, EU:T:2004:312), that it is sufficient, in order to establish the existence of active participation in the administrative procedure, that the contribution of an interested party is only capable of influencing the outcome of that procedure. Irrespective of the fact that participation is capable of influencing the outcome of the administrative procedure only if it introduces into that procedure information which is sufficiently relevant and significant for that purpose, which, as is apparent from paragraph 35 of the present judgment, was not the situation in the present case, it should be noted that, in each of the cases giving rise to the judgments relied on by the appellant, the participation of the interested party had determined the conduct and outcome of the administrative procedure.
42 As regards the argument that the assessment of the appellant’s participation in the procedure relating to operation M.8871 should have been carried out in conjunction with the assessment of its participation in the procedure relating to operation M.8870, the General Court was right to take into consideration only the appellant’s participation relating to the first of those procedures, which was the only relevant procedure for the purposes of determining whether it had standing to bring an action for annulment of the decision at issue adopted at the end of that first procedure.
43 It follows from the foregoing considerations that, contrary to what the appellant claims, the General Court adequately and thoroughly examined the question of its participation in the administrative procedure and did not err in law in concluding that that participation did not constitute ‘active’ participation within the meaning of the case-law referred to in paragraph 32 of the present judgment.
44 In those circumstances, the first part of the first ground of appeal must be rejected.
45 By the third part of the first ground of appeal, the appellant submits that its standing to bring proceedings stemmed already from an infringement of Article 47 of the Charter of Fundamental Rights of the European Union. The division of the administrative procedures and the parallel examination of the various parts of the overall transaction by the Commission and the Federal Competition Authority have led to a weakening of the judicial protection of the undertakings concerned.
46 The General Court did not address that issue and did not take account of the considerable influence exercised by the parties to the concentration and by the Commission on that judicial protection. It was precisely as a result of the intentional division of the overall transaction into several transactions which, considered individually, clearly give rise to no or little doubt concerning competition law that it was possible to approve the overall transaction.
47 The Commission, supported by E.ON and RWE, contests the appellant’s arguments.
48 According to settled case-law, although the conditions of admissibility laid down in the fourth paragraph of Article 263 TFEU must be interpreted in the light of the fundamental right to effective judicial protection, the fact remains that such an interpretation cannot have the effect of setting aside the conditions expressly laid down in that Treaty (see, to that effect, judgments of 25 July 2002, Unión de Pequeños Agricultores v Council, C‑50/00 P, EU:C:2002:462, paragraph 44, and of 1 April 2004, Commission v Jégo-Quéré, C‑263/02 P, EU:C:2004:210, paragraph 36).
49 The appellant is therefore wrong to rely on an alleged infringement of Article 47 of the Charter of Fundamental Rights in order to claim the existence of standing to bring proceedings which the General Court should have found.
50 In addition, in so far as the appellant claims that, if its participation in the procedures relating to operations M.8870 and M.8871 had been considered as a whole, it would have been considered sufficient to confer on it standing to bring proceedings under the fourth paragraph of Article 263 TFEU, 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 that provision. 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.
51 Accordingly, the third part of the first ground of appeal must be rejected.
52 By the first part of the second ground of appeal, the appellant submits that the General Court failed to take account of the fact that, having relied on the hearing officer’s letter of 7 February 2019 informing it, inter alia, that it would be granted a period within which to submit its written observations, it had not taken any other measures of active participation within the 19 days preceding the adoption of the decision at issue. Without that letter, it would have continued to submit arguments, as it had already announced in its email of 28 January 2019.
53 It is true that the General Court found that, despite that information, the Commission had not set a time limit for the submission of written observations on operation M.8871. However, the General Court did not take that factor into account and preferred to refer to an alleged contradiction in the appellant’s conduct, stating that the appellant, on the one hand, claimed to have actively participated and, on the other, explained that it had not put forward any further arguments, relying on the hearing officer’s letter of 7 February 2019. That view disregards the principle of the protection of legitimate expectations. Given that only that legitimate expectation in relation to the hearing officer meant that its participation did not reach a level which was deemed sufficient by the General Court, it must be accepted that it had standing to bring proceedings for that reason alone, particularly since the hearing officer had recognised the appellant’s status as an interested third party and the grant of that status had thus created a situation of legitimate expectations.
54 The Commission, supported by E.ON and RWE, contests the appellant’s arguments.
55 The appellant complains that the General Court did not find that the Commission had breached its legitimate expectations as a result of the hearing officer’s letter of 7 February 2019, in the fact that it would subsequently be given time to submit observations.
56 In that regard, in paragraph 53 of the judgment under appeal, the General Court observed that, at the hearing before it, the appellant had stated that, contrary to what had been stated in the hearing officer’s decision of 7 February 2019, the Commission had not set a time limit for the appellant to submit its written observations on operation M.8871. In paragraph 54 of that judgment, the General Court examined that argument and, after finding, inter alia, that it had been put forward for the first time at the hearing, rejected it as manifestly inadmissible.
57 However, before the Court of Justice, although the appellant complains that the General Court did not examine the substance of its arguments in that regard, it confines itself, in actual fact, to repeating the essence of those arguments, without demonstrating how the General Court erred in law in finding that those arguments, as put forward before it, were manifestly inadmissible.
58 According to the case-law of the Court of Justice, an appeal cannot merely repeat the pleas in law and arguments already submitted to the General Court without putting forward arguments to establish that it erred in law (judgment of 2 April 2009, France Télécom v Commission, C‑202/07 P, EU:C:2009:214, paragraph 69 and the case-law cited).
59 The first part of the second ground of appeal must therefore be rejected as inadmissible.
60 By the second part of the second ground of appeal, the appellant submits that the question arises as to whether locus standi should not be based on objective criteria that can be verified. In that regard, it submits that it is appropriate to examine the legal situation in the Member State specifically concerned, namely the Federal Republic of Germany, where the Bundesgerichtshof (Federal Court of Justice, Germany) held, in a decision of 7 November 2006, that standing to bring proceedings exists where the person concerned satisfies the subjective conditions for intervention in the administrative procedure, irrespective of whether he or she was actually involved or whether his or her application to intervene was rejected for simple reasons of procedural economy. That national court specified that, if the competent authority chose an undertaking from among those seeking leave to intervene and whose interests are similar and rejected the applications of other undertakings which could also claim that their economic interests are significantly affected by the expected decision, there would be unequal treatment in terms of judicial protection.
61 According to the appellant, that is no different in the present case. If the judgment under appeal were upheld, the Commission could in future, depending on the opportunities it grants for participation in the administrative procedure, authorise or refuse for the persons concerned the exercise of a legal remedy.
62 The Commission, supported by E.ON and RWE, contests the appellant’s arguments.
63 It must be stated that, by this part of the second ground of appeal, the appellant merely puts forward general considerations which do not refer to any paragraph of the judgment under appeal. That part is therefore inadmissible in the light of the requirements of Article 169(2) of the Rules of Procedure of the Court of Justice.
64 The second part of the second ground of appeal and, accordingly, the second ground in its entirety must therefore be rejected.
65 By the second part of the first ground of appeal, the appellant submits that the General Court ignored the existence of specific circumstances, other than participation in the procedure, which it had put forward before the General Court, with the result that the judgment under appeal is vitiated by an error of law.
66 It states that one of those specific circumstances is the effect on its market position, since it is one of RWE’s and E.ON’s main competitors in its market segment. Moreover, it is precisely because of such a situation of competition and the resulting effect on the market position that, in the case which gave rise to the judgment of 4 July 2006, easyJet v Commission (T‑177/04, EU:T:2006:187), the General Court accepted the existence of individual concern. In the present case, the appellant is the main energy supplier in the Hannover region (Germany) and its surrounding area, and is one of the leading suppliers of green electricity in Germany. In addition, its electricity generation is almost 10 times greater than that of the undertaking which brought an action against the decision at issue in Case T‑312/20 and in respect of which the General Court accepted the existence of individual concern in relation to its market position. Those factors show that the mere fact of adversely affecting the appellant’s position on the market is sufficient to establish that it is individually concerned.
67 Lastly, the Court has accepted that there are circumstances which make it possible to establish differentiation, in particular where the group of persons concerned is, on the date of the decision in question, known in terms of its number and the persons of which it is composed. In the present case, the appellant satisfies that condition. As it has already argued before the General Court, many circumstances distinguish it from the rest of the persons and distinguish its situation individually just as in the case of the person addressed. Those circumstances include the fact that it was recognised as an interested third party in the procedure relating to operation M.8871. The General Court did not take account of the fact that, to the appellant’s knowledge, only 18 undertakings had obtained such status in that context.
68 The Commission, supported by E.ON and RWE, contests the appellant’s arguments.
69 By the arguments which it puts forward in respect of the present part of the first ground of appeal, the appellant is in fact alleging breach by the General Court of the obligation to state reasons in relation to its standing to bring proceedings.
70 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, C‑100/14 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).
71 It is also 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).
72 In the present case, first of all, in paragraph 29 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 29, 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 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.
73 Next, the General Court examined, in paragraphs 30 to 56 of the judgment under appeal, whether it could be considered that the appellant had actively participated in the procedure relating to operation M.8871 and concluded that it had not actively participated in that procedure.
74 Lastly, in paragraph 57 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.
75 However, as the appellant states in support of its appeal, it had relied, in its application, 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.
76 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 in support of its 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 70 of the present judgment.
77 In those circumstances, the General Court breached 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.
78 The second part of the first ground of appeal must therefore be upheld.
79 Consequently, the judgment under appeal must be set aside in so far as the General Court found, in paragraph 45 of that judgment, that there were no specific circumstances relating to effects on the appellant’s market position and concluded, in paragraph 46 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.
80 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.
81 That is the case here.
82 In that context, it must be borne in mind, as is apparent from paragraph 32 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, C‑525/04 P, EU:C:2007:698, paragraph 32).
83 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 position on the market, consist, in essence, in referring to its turnover in relation to that of other energy producers in Germany, its quantitative importance as a regional electricity supplier, the number of employees that it employs and certain activities which it carries out as a competitor of the parties to operation M.8871, 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.
84 The same finding must be made in the light of the other arguments put forward by the appellant in its action, relating to the strengthening of RWE’s role, it being noted that the considerations put forward concerning E.ON are irrelevant, since the operation at issue in the present case is operation M.8871 and not operation M.8870 which is referred to in paragraph 9 of the present judgment.
85 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 32 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 paragraph 41 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.
86 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 30 of the present judgment, its action for annulment must be dismissed as inadmissible.
87 In those circumstances, there is no need to rule on the third and fourth grounds of appeal, which contain substantive arguments based on the incorrect premiss that the action at first instance was admissible.
88 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.
89 In the present case, since the second part of the appellant’s first ground of appeal has been upheld and its action for annulment has been dismissed, each party must be ordered to bear its own costs.
90 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.