1 By their appeals, EVH GmbH (C‑464/23 P), Stadtwerke Leipzig GmbH (C‑465/23 P), TEAG Thüringer Energie AG (C‑467/23 P), EnergieVerbund Dresden GmbH (C‑468/23 P) and GGEW, Gruppen-Gas- und Elektrizitätswerk Bergstraße AG (C‑470/23 P) seek to have set aside, respectively, the judgment of the General Court of the European Union of 17 May 2023, EVH v Commission (T‑312/20, ‘the judgment in Case T‑312/20’, EU:T:2023:252), the judgment of the General Court of 17 May 2023, Stadtwerke Leipzig v Commission (T‑313/20, ‘the judgment in Case T‑313/20’, EU:T:2023:257), the judgment of the General Court of 17 May 2023, TEAG v Commission (T‑315/20, ‘the judgment in Case T‑315/20’, EU:T:2023:259), the judgment of the General Court of 17 May 2023, EnergieVerbund Dresden v Commission (T‑317/20, ‘the judgment in Case T‑317/20’, EU:T:2023:261), and the judgment of the General Court of 17 May 2023, GGEW v Commission (T‑319/20, ‘the judgment in Case T‑319/20’, EU:T:2023:263) (together, ‘the judgments under appeal’), by which the General Court dismissed their actions 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 Recitals 20 and 21 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), state:
3 Article 2 of that regulation, entitled ‘Appraisal of concentrations’, provides: ‘1. Concentrations within the scope of this Regulation shall be appraised in accordance with the objectives of this Regulation and the following provisions with a view to establishing whether or not they are compatible with the common market. In making this appraisal, the Commission shall take into account: 2. A concentration which would not significantly impede effective competition in the common market or in a substantial part of it, in particular as a result of the creation or strengthening of a dominant position, shall be declared compatible with the common market. 3. A concentration which would significantly impede effective competition, in the common market or in a substantial part of it, in particular as a result of the creation or strengthening of a dominant position, shall be declared incompatible with the common market. 4. To the extent that the creation of a joint venture constituting a concentration pursuant to Article 3 has as its object or effect the coordination of the competitive behaviour of undertakings that remain independent, such coordination shall be appraised in accordance with the criteria of Article [101](1) and (3) [TFEU], with a view to establishing whether or not the operation is compatible with the common market. 5. In making this appraisal, the Commission shall take into account in particular: - whether two or more parent companies retain, to a significant extent, activities in the same market as the joint venture or in a market which is downstream or upstream from that of the joint venture or in a neighbouring market closely related to this market, - whether the coordination which is the direct consequence of the creation of the joint venture affords the undertakings concerned the possibility of eliminating competition in respect of a substantial part of the products or services in question.’
4 Article 3 of Regulation No 139/2004, entitled ‘Definition of concentration’, provides: ‘1. A concentration shall be deemed to arise where a change of control on a lasting basis results from: 2. Control shall be constituted by rights, contracts or any other means which, either separately or in combination and having regard to the considerations of fact or law involved, confer the possibility of exercising decisive influence on an undertaking, in particular by: 3. Control is acquired by persons or undertakings which: 4. The creation of a joint venture performing on a lasting basis all the functions of an autonomous economic entity shall constitute a concentration within the meaning of paragraph 1(b). …’
5 The first subparagraph of Article 4(1) of that regulation provides: ‘Concentrations with a Community dimension defined in this Regulation shall be notified to the Commission prior to their implementation and following the conclusion of the agreement, the announcement of the public bid, or the acquisition of a controlling interest.’
6 Article 5 of Regulation No 139/2004, entitled ‘Calculation of turnover’, reads as follows: ‘1. Aggregate turnover within the meaning of this Regulation shall comprise the amounts derived by the undertakings concerned in the preceding financial year from the sale of products and the provision of services falling within the undertakings’ ordinary activities after deduction of sales rebates and of value added tax and other taxes directly related to turnover. The aggregate turnover of an undertaking concerned shall not include the sale of products or the provision of services between any of the undertakings referred to in paragraph 4. Turnover, in the Community or in a Member State, shall comprise products sold and services provided to undertakings or consumers, in the Community or in that Member State as the case may be. 2. By way of derogation from paragraph 1, where the concentration consists of the acquisition of parts, whether or not constituted as legal entities, of one or more undertakings, only the turnover relating to the parts which are the subject of the concentration shall be taken into account with regard to the seller or sellers. However, two or more transactions within the meaning of the first subparagraph which take place within a two-year period between the same persons or undertakings shall be treated as one and the same concentration arising on the date of the last transaction. …’
7 Article 6 of that regulation, entitled ‘Examination of the notification and initiation of proceedings’, provides: ‘1. The Commission shall examine the notification as soon as it is received. 2. Where the Commission finds that, following modification by the undertakings concerned, a notified concentration no longer raises serious doubts within the meaning of paragraph 1(c), it shall declare the concentration compatible with the common market pursuant to paragraph 1(b). The Commission may attach to its decision under paragraph 1(b) conditions and obligations intended to ensure that the undertakings concerned comply with the commitments they have entered into vis-à-vis the Commission with a view to rendering the concentration compatible with the common market. …’
8 Article 8 of Regulation No 139/2004, entitled ‘Powers of decision of the Commission’, provides: ‘1. Where the Commission finds that a notified concentration fulfils the criterion laid down in Article 2(2) and, in the cases referred to in Article 2(4), the criteria laid down in Article [101](3) [TFEU], it shall issue a decision declaring the concentration compatible with the common market. A decision declaring a concentration compatible shall be deemed to cover restrictions directly related and necessary to the implementation of the concentration. 2. Where the Commission finds that, following modification by the undertakings concerned, a notified concentration fulfils the criterion laid down in Article 2(2) and, in the cases referred to in Article 2(4), the criteria laid down in Article [101](3) [TFEU], it shall issue a decision declaring the concentration compatible with the common market. The Commission may attach to its decision conditions and obligations intended to ensure that the undertakings concerned comply with the commitments they have entered into vis-à-vis the Commission with a view to rendering the concentration compatible with the common market. A decision declaring a concentration compatible shall be deemed to cover restrictions directly related and necessary to the implementation of the concentration. 3. Where the Commission finds that a concentration fulfils the criterion defined in Article 2(3) or, in the cases referred to in Article 2(4), does not fulfil the criteria laid down in Article [101](3) [TFEU], it shall issue a decision declaring that the concentration is incompatible with the common market. 4. Where the Commission finds that a concentration: the Commission may: - require the undertakings concerned to dissolve the concentration, in particular through the dissolution of the merger or the disposal of all the shares or assets acquired, so as to restore the situation prevailing prior to the implementation of the concentration; in circumstances where restoration of the situation prevailing before the implementation of the concentration is not possible through dissolution of the concentration, the Commission may take any other measure appropriate to achieve such restoration as far as possible, - order any other appropriate measure to ensure that the undertakings concerned dissolve the concentration or take other restorative measures as required in its decision. …’
9 Article 21 of that regulation, entitled ‘Application of the Regulation and jurisdiction’, reads as follows in paragraph 1 thereof: ‘This Regulation alone shall apply to concentrations as defined in Article 3, and Council Regulations [(EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 and 102 TFEU] (OJ 2003 L 1, p. 1)], (EEC) No 1017/68 [of 19 July 1968 applying rules of competition to transport by rail, road and inland waterway (OJ 1968 L 175, p. 1)], (EEC) No 4056/86 [of 22 December 1986 laying down detailed rules for the application of Articles 85 and 86 of the [EEC] Treaty to maritime transport (OJ 1986 L 378, p. 4)] and (EEC) No 3975/87 [of 14 December 1987 laying down the procedure for the application of the rules on competition to undertakings in the air transport sector (OJ 1987 L 374, p. 1),] shall not apply, except in relation to joint ventures that do not have a Community dimension and which have as their object or effect the coordination of the competitive behaviour of undertakings that remain independent.’
10 The Guidelines on the assessment of horizontal mergers under the Council Regulation on the control of concentrations between undertakings (OJ 2004 C 31, p. 5; ‘the Horizontal Merger Guidelines’) state: ‘… … Merging firms have large market shares Merging firms are close competitors … Merged entity able to hinder expansion by competitors Merger eliminates an important competitive force
11 The Commission Consolidated Jurisdictional Notice under Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings (OJ 2008 C 95, p. 1; ‘the Consolidated Jurisdictional Notice’) provides: ‘… … …
12 Articles 91 and 92 of the Rules of Procedure of the General Court lay down, respectively, the purpose of measures of inquiry and the procedure relating to them.
13 Articles 93 to 95 of those rules of procedure lay down the procedural arrangements governing witness evidence.
14 Article 96 of those rules concerns the expert’s report.
15 The background to the dispute was set out in paragraphs 2 to 18 of the judgments in Cases T‑312/20, T‑313/20, T‑315/20 and T‑319/20 and in paragraphs 2 to 16 of the judgment in Case T‑317/20. For the purposes of the present proceedings, it may be summarised as follows.
16 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 (such as metering and e-mobility, and so forth) (‘the electricity market’). RWE and its subsidiaries, including innogy SE (‘Innogy’), operate in several Member States.
17 E.ON SE is a company incorporated under German law, which, at the same time, operated across the whole electricity supply chain, whether this involved the generation, wholesale, distribution or retail of electricity. E.ON owns and operates electricity generation assets in several Member States.
18 The appellants are public sector undertakings governed by German law which generate electricity both from conventional energy sources (‘conventional electricity’) and from renewable energy sources and whose generation assets are located in Germany.
19 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’). That swap took the form of a first operation, which is the concentration at issue in the present case, by which RWE wishes to acquire sole or joint control over certain generation assets of E.ON. A second concentration operation consists in the acquisition by E.ON of the sole control over the distribution and retail business as well as some generation assets of Innogy, a company which is controlled by RWE. Lastly, a third concentration operation concerns the acquisition of 16.67% of E.ON’s shares by RWE.
20 By letters sent on 17 April, 24 April, 25 April, 16 July and 13 November 2018 respectively, the appellants informed the Commission of their wish to participate in the procedure relating to the first and second concentration operations.
21 On 26 June 2018, a meeting was held between the representatives of the appellants in Cases C‑464/23 P, C‑465/23 P, C‑467/23 P and C‑470/23 P and the Commission, at which they expressed to the Commission their clients’ concerns regarding the first and second concentration operations and their wish to participate in the related procedures. On 28 August 2018, individual meetings were held between the Commission and each of those four appellants, at which they submitted their comments on those concentrations.
22 The second concentration operation (‘concentration M.8870’) was notified to the Commission on 31 January 2019. As regards that concentration, the Commission adopted Decision C(2019) 6530 final of 17 September 2019 declaring a concentration to be compatible with the internal market and the EEA Agreement (Case M.8870 - E.ON/Innogy (OJ 2020 C 379, p. 16).
23 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, ‘concentration B8-28/19’).
24 On 22 January 2019, the Commission received notification of a proposed concentration pursuant to Article 4 of Regulation No 139/2004, by which RWE wished to acquire, within the meaning of Article 3(1)(b) of that regulation, sole control or joint control of certain generation assets of E.ON.
25 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; ‘concentration M.8871’), in accordance with Article 4(3) of Regulation No 139/2004.
26 E.ON’s generation assets that RWE is to acquire under concentration M.8871 include, first, the entities and shares in the following entities, operating in the renewable energy sector: - E.ON Climate & Renewables GmbH (Germany); - Amrum Offshore West GmbH (Germany); - E.ON Climate & Renewables UK Limited (United Kingdom); - E.ON Climate & Renewables North America LLC (United States); - E.ON Wind Sweden AB (Sweden); - E.ON Climate & Renewables Italia Srl (Italy); - Arkona (Germany), and - Delta Nordsee (Germany).
27 In addition, RWE will acquire 60.08% of the shares in Rampion NewCo (United Kingdom), which holds 50% of the shares in Rampion Offshore Wind Limited (United Kingdom), thereby acquiring an indirect stake of 30.1% in Rampion Offshore Wind.
28 The E.ON generation assets which form part of concentration M.8871 include, second, interests and associated drawing rights in nuclear assets, namely: - a 12.5% minority shareholding in Kernkraftwerke Lippe-Ems GmbH (Germany); - a 25% minority shareholding in Kernkraftwerk Gundremmingen GmbH (Germany), together with a 25% share in the nuclear fuel and waste, as well as real estate assets related to that nuclear power plant.
29 In the context of its examination of concentration M.8871, the Commission conducted a market test and therefore sent to certain undertakings, including the appellants, a questionnaire to which the appellants responded on 30 January 2019.
30 By letters of 31 January 2019, the appellants reiterated their wish to participate in the procedure conducted by the Commission and, on that occasion, to be heard by the Commission if it decided to initiate the detailed examination phase, in accordance with Article 6(1)(c) of Regulation No 139/2004.
31 On 26 February 2019, the Commission adopted the decision at issue, by which concentration 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).
32 By five applications lodged at the Registry of the General Court on 27 May 2020, the appellants brought actions seeking the annulment of the decision at issue.
33 In their actions, the appellants relied on, in essentially identical terms, 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) infringement of the right to be heard, (iv) infringement of the right to effective judicial protection, (v) manifest errors of assessment and (vi) breach of the duty of care.
34 By the judgments under appeal, the General Court dismissed those actions.
35 By five applications lodged at the Registry of the Court of Justice on 21 July 2023, the appellants brought the present appeals.
36 On the same date, those appellants, who had also brought, during 2021, five actions for annulment of the decision referred to in paragraph 22 above (Cases T‑53/21, T‑55/21, T‑56/21, T‑61/21 and T‑62/21), which were still pending before the General Court on 21 July 2023, requested that the examination of the present appeals be stayed pending delivery of the judgments of the General Court in those cases.
37 By decision of 19 September 2023, the President of the Court of Justice, after hearing the parties on those requests for a stay of proceedings and on a possible joinder of the present appeals, dismissed those requests and ordered that joinder.
38 By their appeals, the appellants claim, in identical terms, each in so far as it is concerned, that the Court of Justice should: - set aside the judgments under appeal and annul the decision at issue; - in the alternative and in any event, refer the case back to the General Court, and - order the Commission to pay the costs, including the lawyers’ costs and travel expenses incurred in the proceedings before the General Court.
39 The Commission and the other parties contend that the Court should: - dismiss the appeals and - order the appellants to pay the costs.
40 In support of their appeals, the appellants rely, in identical terms, on four grounds of appeal, alleging infringement of Article 101 TFEU and infringement of the appellants’ procedural rights (first ground), misapplication of Article 3 of Regulation No 139/2004 (second ground), misapplication of Article 2 of that regulation (third ground) and breach of the principles relating to the allocation of the burden of proof (fourth ground).
41 The Commission submits that the appeals do not identify the paragraphs of the judgments under appeal which may be vitiated by errors of law, with the result that those appeals do not satisfy the requirements laid down in Article 169(2) of the Rules of Procedure of the Court of Justice.
42 In accordance with settled case-law, it is apparent from the second subparagraph of Article 256(1) TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and Article 168(1)(d) of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the judgment under appeal and the legal arguments specifically advanced in support of the appeal, failing which the appeal or the ground of appeal in question will be dismissed as inadmissible (judgment of 4 October 2024, thyssenkrupp v Commission, C‑581/22 P, EU:C:2024:821, paragraph 57 and the case-law cited).
43 A ground of appeal supported by an argument that is not sufficiently clear and precise to enable the Court to exercise its powers of judicial review, in particular because essential elements on which the ground of appeal is based are not indicated sufficiently coherently and intelligibly in the text of the appeal, which is worded in a vague and ambiguous manner in that regard, does not satisfy those requirements and must be dismissed as inadmissible. The Court has also held that an appeal lacking any coherent structure which simply makes general statements and contains no specific indications as to the points of the decision under appeal which may be vitiated by an error of law must be dismissed as clearly inadmissible (judgment of 4 October 2024, thyssenkrupp v Commission, C‑581/22 P, EU:C:2024:821, paragraph 58 and the case-law cited).
44 In the present case, it must be stated that the appellants have identified precisely the paragraphs of the judgments under appeal which they seek to challenge by their first ground of appeal and have set out precisely and specifically the errors of law allegedly committed by the General Court in those paragraphs.
45 It follows that the first ground of appeal is admissible.
46 The appellants dispute the General Court’s exclusion, in paragraphs 393 and 394 of the judgments in Cases T‑312/20, T‑313/20 and T‑315/20 and in paragraphs 392 and 393 of the judgments in Cases T‑317/20 and T‑319/20, of the applicability of Article 101 TFEU. That exclusion ‘en bloc’ lacks any precise statement of reasons and is incorrect. First of all, the effectiveness of the prohibition of agreements, decisions and concerted practices laid down in Article 101 TFEU cannot be compromised by the procedural requirements in Regulation No 139/2004, with the result that the General Court could not refer to that regulation in order to refrain from applying that provision. Furthermore, it does not follow from the judgment of 7 September 2017, Austria Asphalt (C‑248/16, ‘the judgment in Austria Asphalt’, EU:C:2017:643, paragraphs 33 and 34), relied on by the General Court, that a concentration cannot materially infringe Article 101 TFEU by virtue of Regulation No 139/2004. That judgment concerns, in actual fact, the distinction between the procedural requirements provided by that regulation, on the one hand, and by Regulation No 1/2003, on the other. Thus, primary law applies to concentrations where the parties to the concentration reach agreement - as in the present case - in order to restrict competition, which is apparent from the history of Regulation No 139/2004, as well as from its wording and from case-law.
47 Also in accordance with the case-law, the application of Regulation No 139/2004 does not preclude the application of substantive primary law. In the judgment of 16 March 2023, Towercast (C‑449/21 P, EU:C:2023:207, paragraph 33 et seq.), the Court of Justice held that although Article 21 of Regulation No 139/2004 excludes the applicability of Regulation No 1/2003 to concentrations defined in Article 3 of Regulation No 139/2004, that blocking effect concerns, by its very wording, only acts of secondary legislation. In short, those principles are necessary in order to avoid divergences of assessment in the control of concentrations.
48 The Commission, RWE and E.ON dispute the appellants’ arguments.
49 As regards the appellants’ complaint regarding the statement of reasons for the judgment of the General Court, it should be noted at the outset that, according to settled case-law, the statement of reasons required by the second paragraph of Article 296 TFEU must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for it and to enable the court having jurisdiction to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to specify all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of the second paragraph of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (judgment of 29 July 2024, Ryanair and Laudamotion v Commission, C‑591/21 P, EU:C:2024:635, paragraph 166 and the case-law cited).
50 In the present case, the General Court, after stating - in paragraph 392 of the judgments in Cases T‑312/20, T‑313/20 and T‑315/20 and in paragraph 391 of the judgments in Cases T‑317/20 and T‑319/20 - that the appellants maintain that, by means of the overall transaction, RWE and E.ON shared the value-added stages in the German electricity market, which would constitute a restriction of competition contrary to Article 101 TFEU, noted - in paragraph 393 of the judgments in Cases T‑312/20, T‑313/20 and T‑315/20 and in paragraph 392 of the judgments in Cases T‑317/20 and T‑319/20 - that it follows from Article 21(1) of Regulation No 139/2004 that that regulation alone is applicable to concentrations as defined in Article 3 thereof, to which Regulation No 1/2003 does not, in principle, apply. Referring to the judgment in Austria Asphalt, the General Court added that, 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 a 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.
51 In paragraph 394 of the judgments in Cases T‑312/20, T‑313/20 and T‑315/20 and in paragraph 393 of the judgments in Cases T‑317/20 and T‑319/20, the General Court added that the fact that the subject matter of the decision at issue concerned a concentration was not disputed. It also concluded, at that point, that, in the light of its assessment in paragraph 393 of the judgments in Cases T‑312/20, T‑313/20 and T‑315/20 and in paragraph 392 of the judgments in Cases T‑317/20 and T‑319/20, the appellants’ argument alleging infringement of Article 101 TFEU was ineffective.
52 In so doing, the General Court, contrary to what the appellants claim, complied with its obligation to state reasons under Article 296 TFEU. In that regard, as is apparent from the appellants’ appeals, they were able to put forward substantive complaints against the assessments contained in those paragraphs of the judgments under appeal and the findings of the Court of Justice set out in paragraphs 54 to 58 of the present judgment demonstrate that the Court of Justice was able to exercise its power of review over the General Court’s assessment.
53 As regards the appellants’ substantive criticisms of that assessment by the General Court, it should be noted that they are based on a misreading of the judgments under appeal.
54 In paragraph 394 of the judgments in Cases T‑312/20, T‑313/20 and T‑315/20 and in paragraph 393 of the judgments in Cases T‑317/20 and T‑319/20, the General Court did not rule out the applicability of Article 101 TFEU to the agreements between RWE and E.ON for the purposes of concentration M.8871.
55 In those paragraphs, the General Court found, in essence, that, since the subject matter of the decision at issue was the examination of a concentration notified to the Commission, it was through Regulation No 139/2004, the purpose of which is the preventive control of concentrations in the light of Articles 101 and 102 TFEU (see, to that effect, the judgment in Austria Asphalt, paragraphs 30 and 31), and not by means of Regulation No 1/2003, the purpose of which is to review agreements, decisions, concerted practices and situations of dominant position referred to in the same provisions of the Treaty, that compliance with Article 101 TFEU ought to have been, and had rightly been, reviewed by the Commission.
56 In so doing, the General Court did not fail to have regard to the applicable legislation and correctly referred, in paragraph 393 of the judgments in Cases T‑312/20, T‑313/20 and T‑315/20 and in paragraph 392 of the judgments in Cases T‑317/20 and T‑319/20, to the case-law relating to that legislation set out in paragraphs 32 and 33 of the judgment in Austria Asphalt.
57 Nor is that assessment by the General Court called into question by the judgment of 16 March 2023, Towercast (C‑449/21 P, EU:C:2023:207), cited by the appellants. In that case, the concentration concerned, which did not exceed the thresholds defined in Article 1 of Regulation No 139/2004, had not been notified, with the result that Regulation No 139/2004, unlike in the case of the concentration at issue in the present case, had not been engaged and the blocking effect provided for in Article 21(1) thereof could not apply.
58 In so far as the appellants claim that RWE and E.ON agreed to restrict competition by means of a complex transaction which allegedly established a ‘cease-fire’ between ‘former fierce competitors’, and that the Commission and the General Court could not disregard those circumstances, it should be noted that although such circumstances could have been or could be, where appropriate, following a complaint, the subject of an investigation by the Commission under Regulation No 1/2003, they were not capable of falling within the scope of the structural examination of the concentration carried out by the Commission in the decision at issue under Regulation No 139/2004 and, consequently, of the General Court’s review of the lawfulness of that decision.
59 It follows from the foregoing considerations that the first part of the first ground of appeal is unfounded.
60 The appellants state that the General Court, on account of its position in relation to Article 101 TFEU, did not verify whether the evidence which they submitted characterised a restriction of competition prohibited by that Article 101. However, it is apparent from the file that RWE and E.ON agreed to share the electricity market. The General Court could have, and ought to have, classified that market sharing as prohibited under Article 101(1) TFEU. Furthermore, it is not disputed that the Commission did not carry out any review of concentration M.8871 in the light of Article 101 TFEU and that the parties to that concentration also failed to provide the slightest evidence that that concentration would produce favourable effects under Article 101(3) TFEU.
61 The Commission, RWE and E.ON dispute the appellants’ arguments.
62 By the present part of the first ground of appeal, the appellants complain, in essence, that the General Court failed to verify whether the evidence which they produced during the proceedings at first instance characterised the existence of an agreement, decision or concerted practice contrary to Article 101 TFEU.
63 It follows from the examination of the first part of the present ground of appeal that the General Court did not err in law in finding that the Commission had rightly examined the concentration at issue in the context of the preventive control provided for by Regulation No 139/2004 and, subsequently, that any evidence relating to the existence of an anti-competitive agreement, decision or concerted practice within the meaning of Article 101 TFEU could have been, or could be, as appropriate, the subject of a complaint under Regulation No 1/2003.
64 It is not, however, for the General Court to carry out assessments unrelated to the review of the legality of the decision which is the subject of the action for annulment brought before it.
65 In those circumstances, the second part of the first ground of appeal must be rejected as ineffective.
66 The appellants submit, in essence, that the General Court infringed their right to be heard in that, first, by holding that the argument alleging infringement of Article 101 TFEU was ineffective, all the facts set out by them in order to establish the infringement of that provision were disregarded on purely formal grounds. Second, the General Court’s rejection, in paragraphs 406 to 411 of the judgments in Cases T‑312/20, T‑313/20 and T‑315/20 and in paragraphs 405 to 410 of the judgments in Cases T‑317/20 and T‑319/20, of the appellants’ request for appearance in person or for examination of witnesses, infringed the appellants’ right to be heard.
67 The Commission, RWE and E.ON dispute the appellants’ arguments.
68 By the present part of the first ground of appeal, the appellants complain that the General Court infringed their right to be heard by disregarding the facts which they put forward and by failing to arrange for appearance in person or for the examination of certain witnesses, as regards conduct on the part of RWE and E.ON which might be contrary to Article 101 TFEU.
69 According to settled case-law, the principle of effective judicial protection is a general principle of EU law to which expression is now given by Article 47 of the Charter of Fundamental Rights of the European Union (judgment of 10 July 2014, Telefónica and Telefónica de España v Commission, C‑295/12 P, EU:C:2014:2062, paragraph 40 and the case-law cited). That principle includes the right to be heard (see, to that effect, judgment of 26 September 2024, Energotehnica, C‑792/22, EU:C:2024:788, paragraph 54).
70 The right to be heard requires that the person concerned be placed in a position in which he or she may effectively make known his or her views as regards the information on which the competent authority intends to base its decision affecting him or her. Furthermore, observance of the right to be heard in the context of judicial proceedings does not mean that the court has to incorporate in full in its decision all the submissions put forward by each party, but rather that, after listening to the submissions of the parties and assessing the evidence, it must decide whether or not to grant the relief sought in the application and give reasons for its decision (see, to that effect, judgment of 9 November 2023, Global Silicones Council and Others v ECHA, C‑559/21 P, EU:C:2023:842, paragraph 76 and the case-law cited).
71 On the other hand, that right does not include the obligation for the General Court to order measures of inquiry. In accordance with the settled case-law of the Court of Justice, as regards the assessment by the court at first instance of requests for measures of organisation of procedure or of inquiry made by a party to a dispute, the General Court is the sole judge of whether the information available to it concerning the cases before it needs to be supplemented. It therefore falls to the General Court alone to assess the relevance of a request for a measure of organisation of procedure to the subject matter of the dispute and the need to adopt such a measure (judgment of 12 November 2020, Fleig v EEAS, C‑446/19 P, EU:C:2020:918, paragraph 53 and the case-law cited).
72 It follows that, during the review carried out by the Court of Justice in the context of an appeal, it is necessary to ascertain whether the parties were in fact able to submit, in the course of the written procedure, their claims and the grounds on which they were based, as well as, where appropriate, during the oral procedure, details of their claims and their replies to the claims made by the other parties to the proceedings. However, the General Court is not required to reproduce, in its decision at first instance, all the written or oral claims made by the parties, nor is it required to adopt a position with regard to each of them (judgment of 14 March 2013, Viega v Commission, C‑276/11 P, EU:C:2013:163, paragraphs 35 and 36).
73 In the present case, first, it is apparent from the file submitted to the Court of Justice that the appellants had the opportunity to put forward, in the course of the proceedings before the General Court, all of their arguments relating to the existence of an agreement, decision or concerted practice between RWE and E.ON, which would be contrary to Article 101 TFEU. In that regard, the fact that a complaint is regarded as ineffective in no way implies that the appellants were not heard.
74 Second, the General Court was not required to incorporate those arguments into its reasoning or to grant the request for appearance in person or for the examination of witnesses, even if that request were admissible ratione temporis, since those arguments and that request related to a complaint, namely that alleging the existence of an agreement, decision or concerted practice contrary to Article 101 TFEU, correctly held by the General Court as being ineffective in paragraphs 392 to 394 of the judgments in Cases T‑312/20, T‑313/20 and T‑315/20 and in paragraphs 391 to 393 of the judgments in Cases T‑317/20 and T‑319/20.
75 The third part of the first ground of appeal must, therefore, be rejected.
76 In those circumstances, the first ground of appeal is rejected.
77 By that ground of appeal, the appellants submit that concentrations M.8871, M.8870 and B8-28/19 form an integral part of a single concentration and that, therefore, contrary to what the General Court held, they ought to have been examined in the context of a single procedure for the control of concentrations provided for by Regulation No 139/2004.
78 The appellants submit, first, that the General Court wrongly refrained from ruling on its own jurisdiction as to concentration B8-28/19 and wrongly relied on the premiss that the Commission was not required formally to include RWE’s 16.67% acquisition of E.ON’s capital in the procedure relating to concentration M.8871 (paragraphs 61 to 72 of the judgments in Cases T‑312/20, T‑313/20, T‑315/20 and T‑319/20 and paragraphs 60 to 71 of the judgment in Case T‑317/20), in order to conclude that, if the appellants were of the opinion that concentration B8-28/19 may have a Community-level dimension, it was for them to complain to the Commission in order to ask it to determine the case.
79 Neither the judgment of 25 September 2003, Schlüsselverlag J.S. Moser and Others v Commission (C‑170/02 P, EU:C:2003:501, paragraphs 27 to 30), cited in paragraph 68 of the judgments in Cases T‑312/20, T‑313/20, T‑315/20 and T‑319/20 and paragraph 67 of the judgment in Case T‑317/20, nor any other ground requires the appellants to lodge separate complaints and, where appropriate, to bring separate actions. It is the Commission’s duty to verify the existence and scope of a concentration.
80 Second, by relying on a lack of evidence of an acquisition of control (paragraph 70 of the judgments in Cases T‑312/20, T‑313/20, T‑315/20 and T‑319/20 and paragraph 69 of the judgment in Case T‑317/20), the General Court distorted the facts. The appellants provided full explanations concerning RWE’s influence and control within E.ON. Furthermore, the Investor Relationship Agreement (‘the investor agreement’), which the General Court relies on to counter those arguments, was never communicated to the appellants. Lastly, the investor agreement did not prevent RWE from derogating from that agreement in the exercise of its right to vote. That agreement is in any event null and void, since it infringes the second sentence of Article 134(1) of the Aktiengesetz (German Law on limited companies), which was explained in detail at the hearing, but is not mentioned in the judgments under appeal.
81 Third, and irrespective of the foregoing, it was for the Commission and the General Court to examine RWE’s 16.67% acquisition of capital in E.ON even if that acquisition, taken in isolation, did not constitute a concentration within the meaning of Regulation No 139/2004 since, under recital 21 of that regulation, the Commission was able to examine the agreements relating to the implementation of the concentration.
82 The Commission, RWE and E.ON dispute the appellants’ arguments.
83 By the present part of the second ground of appeal, which relates to paragraphs 61 to 72 of the judgments in Cases T‑312/20, T‑313/20, T‑315/20 and T‑319/20 and paragraphs 60 to 71 of the judgment in Case T‑317/20, the appellants complain, in essence, that the General Court failed to hold that the Commission ought to have determined, in the decision at issue, its competence and, consequently, formally included RWE’s acquisition of a minority shareholding in E.ON, that is to say, concentration B8-28/19, in the procedure relating to concentration M.8871. They also complain that the General Court distorted certain facts in the file.
84 In paragraph 61 of the judgments in Cases T‑312/20, T‑313/20, T‑315/20 and T‑319/20 and paragraph 60 of the judgment in Case T‑317/20, the General Court noted that the Commission had recalled in the decision at issue its obligation, in assessing the competitive effects of any acquisition of control, also to take into account minority interests held by the acquirer in any related companies, and that the Commission had therefore examined whether RWE’s acquisition of the shareholding in E.ON, the subject matter of concentration B8-28/19, was likely to weaken the incentives of those parties to compete with each other or to give them the ability and incentive to foreclose competitors.
85 In paragraphs 62 and 63 of the judgments in Cases T‑312/20, T‑313/20, T‑315/20 and T‑319/20 and in paragraphs 61 and 62 of the judgment in Case T‑317/20, the General Court concluded that the Commission had taken account of the shareholding in E.ON acquired by RWE, when assessing of the effects of concentration M.8871, but had not examined the compatibility of concentration B8-28/19 with the internal market in the light of Regulation No 139/2004, the General Court observing that it was the competent German authority which examined the compatibility of that concentration in the light of German law.
86 In paragraphs 64 to 66 of the judgments in Cases T‑312/20, T‑313/20, T‑315/20 and T‑319/20 and in paragraphs 63 to 65 of the judgment in Case T‑317/20, in response to the appellants’ arguments that the Commission ought to have examined concentration B8-28/19, since the minority shareholding in E.ON acquired by RWE enabled RWE to exercise decisive influence over E.ON, the General Court recalled the definition of the concept of ‘concentration’, within the meaning of Article 3 of Regulation No 139/2004, and noted that the appellants considered that concentration B8-28/19 constituted a concentration of that type and therefore criticised the Commission for not having examined it.
87 In paragraph 67 of the judgments in Cases T‑312/20, T‑313/20, T‑315/20 and T‑319/20 and in paragraph 66 of the judgment in Case T‑317/20, the General Court stated that the subject matter of the action brought before it concerned formally the decision at issue declaring concentration M.8871 compatible with the internal market and that, even though that decision contained matters relating to the shareholding acquired by RWE in E.ON which are capable of showing why the Commission did not regard concentration B8-28/19 as a concentration within the meaning of Article 3 of Regulation No 139/2004, that decision did not expressly determine that issue or, by extension, whether the Commission had competence to determine the compatibility of that concentration with the internal market. Therefore, according to the General Court, the appellants could not rely on a plea alleging erroneous division of the overall transaction into separate parts in order to ask it to rule on a question of competence which had not been considered by the Commission in the decision which was actually challenged before that court.
88 The General Court also pointed out that if the appellants had taken the view that concentration B8-28/19 may have a Community-level dimension, it would have been for them to complain to the Commission, in which case the Commission would have been required to take a decision on the very principle of its competence as supervising authority (paragraph 68 of the judgments in Cases T‑312/20, T‑313/20, T‑315/20 and T‑319/20 and paragraph 67 of the judgment in Case T‑317/20).
89 The General Court observed that, in any event, the acquisition of a minority shareholding may give rise to an acquisition of control only where specific rights are attached to that shareholding, conferring de jure sole control, or where a minority shareholder obtains, due to extraordinary circumstances, sole control on a de facto basis (paragraph 69 of the judgments in Cases T‑312/20, T‑313/20, T‑315/20 and T‑319/20 and paragraph 68 of the judgment in Case T‑317/20). First, the appellants had not claimed that such rights were attached to the shareholding acquired by RWE (paragraph 70 of the judgments in Cases T‑312/20, T‑313/20, T‑315/20 and T‑319/20 and paragraph 69 of the judgment in Case T‑317/20) and, second, RWE cannot, in the light of the investor agreement, obtain a majority at E.ON general meetings, even when a small number of shareholders attend. The General Court observed that, moreover, the appellants had not put forward any evidence to support the plausibility of any coordination between [confidential] (1) and RWE at E.ON general meetings which might provide RWE with a stable majority at those meetings. Therefore, according to the General Court, it could not be considered that RWE had acquired sole control on a de facto basis over E.ON (paragraph 71 of the judgments in Cases T‑312/20, T‑313/20, T‑315/20 and T‑319/20 and paragraph 70 of the judgment in Case T‑317/20), and the appellants were not justified in maintaining that concentration B8-28/19 was a concentration within the meaning of Article 3 of Regulation No 139/2004 (paragraph 72 of the judgments in Cases T‑312/20, T‑313/20, T‑315/20 and T‑319/20 and paragraph 71 of the judgment in Case T‑317/20).
90 In the first place, as regards the complaint that the General Court erred in law by not holding that the Commission ought to have determined, in the decision at issue, its competence to review concentration B8-28/19, it should be borne in mind that the system for the control of concentrations established by Regulation No 139/2004 includes the obligation for economic operators to notify their concentrations to the Commission and the prohibition on implementing those transactions before the Commission has found them to be compatible with the common market. In that context, the Commission examines the notification as soon as it is received, with a view to adopting a decision that the notified concentration does not fall within the scope of that regulation, or that it does not raise serious doubts as to its compatibility with the common market, or that it raises such doubts (Article 6(1) of that regulation), with the consequence, in the latter case, of the initiation of a formal investigation procedure leading to a decision of the compatibility (Article 8(1) and (2) of that regulation) or the incompatibility of the notified concentration (Article 8(3) of Regulation No 139/2004), or, in the case of a concentration which has already been implemented is incompatible or in breach of a condition, to a decision ordering the dissolution of that concentration (Article 8(4) of that regulation).
91 It follows from the provisions referred to in the preceding paragraph that the Commission cannot examine, for the purpose of declaring it compatible with the common market, a concentration which has not been notified to it in breach of the obligation laid down in Article 4 of that regulation. However, where a complaint is addressed to Commission alleging such facts as constituting a concentration with a Community dimension referred to in Regulation No 139/2004, the Commission is required to determine its competence to review with regard to those facts, in order, as the case may be, to decide whether they constitute a concentration of that type, which is unlawful in the absence of notification, and whether, in such a case, it is appropriate to impose fines pursuant to Article 14(2)(a) of Regulation No 139/2004.
92 In the present case, the General Court established that concentration B8-28/19, which was subject to review by the German Federal Competition Authority, had not been notified to the Commission. Accordingly, although the Commission took due account of RWE’s acquisition of a minority shareholding in E.ON in order to assess the competitive interactions that might result from that acquisition between the parties to concentration M.8871, which had been notified to it, it was not required, in the absence of a complaint, to determine of its own motion its own competence with regard to concentration B8-28/19.
93 It follows that, without there being any need to examine the General Court’s interpretation of the judgment of 25 September 2003, Schlüsselverlag J.S. Moser and Others v Commission (C‑170/02 P, EU:C:2003:501, paragraphs 27 to 30), the General Court did not err in law in rejecting the appellants’ complaint that the Commission ought to have made a determination, in the decision at issue, on concentration B8-28/19.
94 In addition, it should be noted that, contrary to what the appellants suggest in their appeals, the General Court referred to and verified the Commission’s assessments concerning RWE’s acquisition of a minority shareholding in E.ON (see paragraphs 61 to 71 of the judgments in Cases T‑312/20, T‑313/20, T‑315/20 and T‑319/20 and paragraphs 60 to 70 of the judgment in Case T‑317/20; see, also, paragraphs 269, 308 and 364, final sentences, and 370 et seq. of the judgments in Cases T‑312/20, T‑313/20, T‑315/20, and paragraphs 268, 307 and 363, final sentences, and 369 et seq. of the judgments in Cases T‑317/20 and T‑319/20).
95 In the second place, as regards the complaint alleging distortion of the facts by the General Court, in that - contrary to the General Court’s statements in paragraphs 70 and 71 of the judgments in Cases T‑312/20, T‑313/20, T‑315/20 and T‑319/20 and in paragraphs 69 and 70 of the judgment in T‑317/20 - first of all, the appellants had indeed provided explanations in support of their claims relating to RWE’s influence and control over E.ON, next, the investor agreement was never communicated to them and, lastly, that agreement did not prevent RWE from derogating from it when exercising its right to vote, it is apparent from the settled case-law of the Court of Justice that complaints directed against a ground included in a decision of the General Court purely for the sake of completeness cannot provide any basis for annulment of that decision and are, therefore, ineffective (judgment of 28 October 2021, Vialto Consulting v Commission, C‑650/19 P, EU:C:2021:879, paragraph 86).
96 The grounds set out by the General Court in paragraphs 65 to 68 of the judgments in Cases T‑312/20, T‑313/20, T‑315/20 and T‑319/20 respectively, and in paragraphs 64 to 67 of the judgment in Case T‑317/20, are sufficient to justify the General Court’s rejection, in those judgments, of the first part of the first plea by which the appellants complained that the Commission had not controlled concentration B8-28/19. The fact that both paragraph 69 of the judgments in Cases T‑312/20, T‑313/20, T‑315/20 and T‑319/20 and paragraph 68 of the judgment in Case T‑317/20 begin with ‘In any event’ confirms that assessment.
97 Given that, at the appeal stage, the appellants have failed to establish, in the context of the complaint which they raised in support of the present part of the second ground of appeal, that those paragraphs of the judgments under appeal are vitiated by an error of law, the present complaint must be rejected.
98 In the third place, as regards the appellants’ argument that it was for the Commission and the General Court to examine RWE’s 16.67% acquisition in the capital of E.ON even if that acquisition, taken in isolation, did not constitute a concentration within the meaning of Regulation No 139/2004, it has already been pointed out, in paragraph 94 above, that the Commission assessed that acquisition of a minority shareholding, which the General Court duly referred to and verified in the judgments under appeal.
99 In those circumstances, the first part of the second ground of appeal must be rejected as unfounded.
100 The appellants state that, in paragraphs 74 to 119 of the judgments in Cases T‑312/20, T‑313/20, T‑315/20 and T‑319/20 and in paragraphs 73 to 118 of the judgment in Case T‑317/20, the General Court rejected their arguments that concentrations M.8871, M.8870 and B8-28/19 form a single concentration. That interpretation by the General Court of the concept of ‘concentration’, within the meaning of Regulation No 139/2004, disregards the objectives of the FEU Treaty and the importance of recital 20 of that regulation, as well as the terms of the Consolidated Jurisdictional Notice. Even though recital 20 is not reproduced in the body of that regulation, the EU legislature confirms therein that it adopts a broad definition of the concept of ‘concentration’, without excluding the possibility that closely connected ‘swap’ transactions may also constitute a single concentration. Moreover, the equally broad wording of Article 3 of Regulation No 139/2004 makes it possible to regard as a single concentration several transactions by which different undertakings acquire control of ‘other’ different undertakings, which, ultimately, is not called into question by the second subparagraph of Article 5(2) of Regulation No 139/2004. That was confirmed by the General Court in its judgment of 23 February 2009, Cementbouw Handel & Industrie v Commission (T‑282/02, EU:T:2006:64, paragraph 111 et seq.).
101 Contrary to what the General Court held in paragraphs 84 and 85 of the judgments in Cases T‑312/20, T‑313/20, T‑315/20 and T‑319/20 and in paragraphs 83 and 84 of the judgment in Case T‑317/20, the joint examination of the swaps was not ruled out by a deliberate choice on the part of the legislature, nor did the latter decide that only the Consolidated Jurisdictional Notice was decisive. In the Green Paper on the review of Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings (COM(2001) 745 final) (‘the Green Paper’), the Commission argued that swaps should be treated as one and the same concentration. During the legislative procedure, however, the discussion of the proposed review led to the application of the concept of ‘concentration’, in the event of multiple acquisitions, being ensured by means of recital 20.
102 Moreover, the Consolidated Jurisdictional Notice is merely an internal administrative measure which does not bind the General Court. In her Opinion in Austria Asphalt (C‑248/16, EU:C:2017:322), Advocate General Kokott also stated that that notice did not form part of the relevant legal framework. The General Court therefore erred in law by basing its assessment of the swaps on paragraphs 41 and 44 of that notice in order to refuse to consider concentrations M.8871, M.8870 and B8-28/19 as constituting a single concentration.
103 The Commission, RWE, E.ON and the German Government dispute the appellants’ arguments.
104 By the second part of the second ground of appeal, which concerns, in essence, the General Court’s reasoning in paragraphs 74 to 86 of the judgments in Cases T‑312/20, T‑313/20, T‑315/20 and T‑319/20 and in paragraphs 73 to 85 of the judgment in Case T‑317/20, the appellants criticise the General Court for its interpretation of the concept of a ‘single concentration’. In their view, a single concentration may bring together several transactions by which different undertakings acquire control of other different undertakings. The General Court’s interpretation of the concept of ‘concentration’, within the meaning of Regulation No 139/2004, disregards the objectives of the FEU Treaty and the importance of recital 20 of that regulation, as well as the terms of the Consolidated Jurisdictional Notice.
105 In paragraphs 74 to 77 of the judgments in Cases T‑312/20, T‑313/20, T‑315/20 and T‑319/20 and in paragraphs 73 to 76 of the judgment in Case T‑317/20, the General Court, after noting that the concept of a ‘single concentration’ appears only in recital 20 of Regulation No 139/2004, on the one hand, observed that that recital does not contain an exhaustive definition of the circumstances in which two or more transactions constitute a single concentration and, on the other hand, recalled that a recital of a regulation, although it may cast light on the interpretation to be given to a legal rule, cannot constitute such a rule or lead to a definition which is inconsistent with the provisions of the regulation in whose preamble the recital is contained.
106 In paragraph 78 of the judgments in Cases T‑312/20, T‑313/20, T‑315/20 and T‑319/20 and in paragraph 77 of the judgment in Case T‑317/20, the General Court inferred from this that the concept of ‘single concentration’ had to be interpreted in a manner which was compatible with the concept of ‘concentration’, defined in Article 3(1) of Regulation No 139/2004, without extending the scope of that provision.
107 In paragraphs 79 and 80 of the judgments in Cases T‑312/20, T‑313/20, T‑315/20 and T‑319/20 and in paragraphs 78 and 79 of the judgment in Case T‑317/20, the General Court inferred from Article 3(1) of Regulation No 139/2004 that, in order to regard two or more transactions as constituting a single concentration within the meaning of that regulation, in addition to the interdependence of those transactions in the sense that none of them would be carried out without the others, the result of those transactions must consist in conferring on one or more undertakings economic control over the activities of one or more other undertakings.
108 In paragraphs 81 to 86 of the judgments in Cases T‑312/20, T‑313/20, T‑315/20 and T‑319/20 and in paragraphs 80 to 85 of the judgment in Case T‑317/20, the General Court responded to the appellants’ argument that recital 20 of Regulation No 139/2004 gave practical effect to the Commission’s intention, expressed in the Green Paper, to treat, in a very general way, asset swaps as a single concentration in order to ensure a coherent assessment of the entire transaction, by observing that that intention had not been followed by the EU legislature in Regulation No 139/2004 and concluding that - in view of the conditions set out in paragraph 80 of the judgments in Cases T‑312/20, T‑313/20, T‑315/20 and T‑319/20 and in paragraph 79 of the judgment in Case T‑317/20 - the concept of a ‘single concentration’ is not intended to apply where independent undertakings gain control of different targets, as in the case of an asset swap.
109 Contrary to the arguments put forward by the appellants, those findings of the General Court do not disregard the objectives of the FEU Treaty, the importance of recital 20 of Regulation No 139/2004 or the terms of the Consolidated Jurisdictional Notice.
110 First of all, the General Court correctly found that recital 20 of Regulation No 139/2004 was not binding and could not lead to a definition of the concept of a ‘single concentration’ which does not comply with Article 3 of that regulation.
111 Next, the General Court also rightly pointed out, in essence, that it follows from Article 3(1)(b) of Regulation No 139/2004 that two or more transactions may constitute a single concentration for the purposes of merger control only if, in addition to their necessary interdependence, they lead to conferring sole control on an undertaking, or joint control on two or more undertakings, over one or more other undertakings.
112 Nor did the General Court err in finding that the Green Paper was intended to start a consultation process, that it did not create an obligation on the part of the Commission and, lastly, had not been given specific expression by the EU legislature in Regulation No 139/2004, as regards the proposals in that green paper relating to asset swaps.
113 As regards the appellants’ reference to the second subparagraph of Article 5(2) of Regulation No 139/2004, it should be noted that that provision merely determines the time from which several acquisitions must be regarded as a single concentration for the purposes of the calculation of turnover. By contrast, that provision does not define the concept of ‘concentration’ itself.
114 As regards, lastly, the Consolidated Jurisdictional Notice, it should be noted that, contrary to what the appellants claim, the General Court did not hold, in paragraphs 84 and 85 of the judgments in Cases T‑312/20, T‑313/20, T‑315/20 and T‑319/20 and in paragraphs 83 and 84 of the judgment in Case T‑317/20, that only that notice was decisive for the purposes of defining the concept of a ‘single concentration’. It stated that, since the proposals in the Green Paper relating to asset swaps had not been incorporated by the EU legislature in the final version of Regulation No 139/2004, those proposals had no bearing in the present case, with the result that only that regulation and that notice were relevant in that regard. Moreover, the mere fact that the Consolidated Jurisdictional Notice is not binding cannot, in itself, mean that the General Court’s reliance on it amounts to vitiating the judgments under appeal by an error of law, all the more so since the appellants have not established that the interpretation adopted by the Commission in that notice is not capable of having a basis in Regulation No 139/2004.
115 It follows from the foregoing considerations that the General Court was right to conclude, in paragraph 86 of the judgments in Cases T‑312/20, T‑313/20, T‑315/20 and T‑319/20 and in paragraph 85 of the judgment in Case T‑317/20, that the concept of a ‘single concentration’ cannot apply where independent undertakings gain control of different targets, as is the case, like here, in an asset swap.
116 The second part of the second ground of appeal must, therefore, be rejected.
117 It follows that the second ground of appeal is rejected.
118 The appellants submit that paragraphs 205 to 228 of the judgments in Cases T‑312/20, T‑313/20 and T‑315/20 and paragraphs 204 to 227 of the judgments in Cases T‑317/20 and T‑319/20 are vitiated by an error of law in that they confirm the Commission’s manifest error of assessment of the relevant market.
119 In paragraphs 220 and 221 of the judgments in Cases T‑312/20, T‑313/20 and T‑315/20 and in paragraphs 219 and 220 of the judgments in Cases T‑317/20 and T‑319/20, the General Court held that ‘whatever the definitions of the market … finally adopted, the concentration did not raise any competition concerns’ and that the appellants did not put forward ‘any specific argument’ or ‘[explain clearly] why the Commission should have adopted a different definition of the … markets’. That presentation distorts the facts and disregards the standards of proof that may be imposed on the appellants. In their applications and in a study prepared at their request by an economic consultancy firm and forwarded to the Commission (‘the Oxera study’), the appellants set out in detail their own definition of the market and the conclusions which they drew from that definition in order to criticise the Commission for an insufficient market test and/or a manifest error of assessment in that it left open the definition of the market. The General Court therefore had all the evidence available to it in order to be in a position to give judgment.
120 The General Court and the Commission could not have been unaware of the definition of the market. The decision at issue does not state why the Commission considered that, despite the abovementioned evidence, RWE’s growing market power on the market for the first sale of electricity did not pose any problems, irrespective of the possible market definitions.
121 The Commission, RWE, E.ON and the German Government dispute the appellants’ arguments.
122 By the first part of the third ground of appeal, the appellants submit that paragraphs 205 to 228 of the judgments in Cases T‑312/20, T‑313/20 and T‑315/20 and paragraphs 204 to 227 of the judgments in Cases T‑317/20 and T‑319/20 are vitiated by an error of law, in that the General Court did not criticise the Commission’s manifest error of assessment of the relevant market in the decision at issue.
123 As regards the review carried out by the Court of Justice on appeal, 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, therefore, 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 16 January 2019, Commission v United Parcel Service, C‑265/17 P, EU:C:2019:23, paragraph 11 and the case-law cited).
124 Furthermore, an appellant who alleges distortion of the facts and evidence by the General Court must indicate precisely the evidence alleged to have been distorted and show the errors of appraisal which, in that person’s view, led to such distortion (judgment of 4 October 2024, thyssenkrupp v Commission, C‑581/22 P, EU:C:2024:821, paragraph 102 and the case-law cited). The latter presupposes that the General Court has manifestly exceeded the limits of a reasonable assessment of the evidence (judgment of 4 July 2024, Portugal v Commission (Madeira Free Zone), C‑736/22 P, EU:C:2024:579, paragraph 56 and the case-law cited). It is not sufficient to show that a document could be interpreted differently from the interpretation adopted by the General Court. Lastly, the distortion must be obvious from the documents in the Court’s file, without there being any need for a new assessment of the facts and the evidence (judgment of 13 July 2023, Commission v CK Telecoms UK Investments, C‑376/20 P, EU:C:2023:561, paragraph 142 and the case-law cited).
125 Nor does the Court of Justice have jurisdiction to examine the evidence which the General Court accepts as establishing the facts found by it, since it is for the General Court alone to assess the weight that should be attached to the evidence adduced before it (see, to that effect, judgment of 24 January 2002, Conserve Italia v Commission, C‑500/99 P, EU:C:2002:45, paragraph 59 and the case-law cited). It is for the General Court alone to decide whether that evidence is sufficient or must be supplemented (see, to that effect, judgment of 22 November 2007, Sniace v Commission, C‑260/05 P, EU:C:2007:700, paragraph 77 and the case-law cited).
126 As regards the standard of review of the General Court of the decision at issue, it should be borne in mind that, as the Court of Justice has held in the context of Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings (OJ 1989 L 395, p. 1) (judgment of 15 February 2005, Commission v Tetra Laval, C‑12/03 P, EU:C:2005:87, paragraph 38), the basic provisions of Regulation No 139/2004 confer on the Commission a certain discretion, especially with respect to complex economic assessments. Consequently, review by the EU judicature of the exercise of that discretion, which is essential for defining the rules on concentrations, must take account of the margin of discretion implicit in the provisions of an economic nature which form part of the rules on concentrations.
127 It should be added that, when such a review is conducted by the General Court on the complex economic assessments made by the Commission, it must not substitute its own economic assessment for that of the Commission (see, to that effect, judgments of 2 September 2010, Commission v Scott, C‑290/07 P, EU:C:2010:480, paragraphs 64 and 66, and of 24 January 2013, Frucona Košice v Commission, C‑73/11 P, EU:C:2013:32, paragraph 75). It follows that the General Court’s review of the complex economic assessments made by the Commission in the exercise of the discretion conferred on it by Regulation No 139/2004 concerns ensuring that the rules on procedure and on the statement of reasons have been complied with, that the facts have been accurately stated and that there has been no manifest error of assessment or misuse of powers (judgment of 13 July 2023, Commission v CK Telecoms UK Investments, C‑376/20 P, EU:C:2023:561, paragraph 84).
128 In the present case and in the light of the foregoing, it must be held that the General Court did not err in law in pointing out, in paragraph 210 of the judgments in Cases T‑312/20, T‑313/20 and T‑315/20 and in paragraph 209 of the judgments in Cases T‑317/20 and T‑319/20, that in so far as the definition of the relevant market involves complex economic assessments on the part of the Commission, it is subject only to limited review by the General Court.
129 In paragraphs 219 to 228 of the judgments in Cases T‑312/20, T‑313/20 and T‑315/20 and in paragraphs 218 to 227 of the judgments in Cases T‑317/20 and T‑319/20, the General Court examined the reasoning of the decision at issue and the appellants’ arguments and found that the appellants had not established that the Commission had committed a manifest error of assessment in defining the relevant market.
130 As regards the appellants’ complaint that, in so far as the General Court found that they did not put forward any specific argument to call into question the Commission’s assessment that the concentration did not raise competition concerns irrespective of the market definitions ultimately adopted, that court distorted the facts and disregarded the standard of proof that may be imposed, that complaint must be rejected. It is apparent from an overall reading of those paragraphs, in the light of the limits within which the General Court’s review of the Commission’s complex economic assessments falls, that the General Court did not state in those paragraphs that there were no arguments, in the actions brought before it, challenging the Commission’s assessment relating to the definition of the relevant market. In that regard, the General Court specifically referred to the appellants’ argument that the market for electricity produced from renewable energy sources benefiting from the Gesetz für den Ausbau erneuerbarer Energien (Erneuerbare-Energien-Gesetz) - EEG 2017) (German Law on renewable energy) of 21 July 2014 (BGBl. 2014 I, p. 1066, ‘the EEG’), is an autonomous market. However, the General Court found, in essence, that there was no information concerning the specific characteristics of the various energy sources, their lack of interchangeability, the conditions of competition and the structure of supply and demand, which would justify, in the context of its limited review, a finding that the Commission had committed a manifest error in its assessment of the relevant market. Contrary to what the appellants claim, the General Court does not alter the evidential requirements incumbent on any party relying on a fact, but merely states, in those paragraphs of the judgments under appeal, that the information put forward by those appellants is not such as to call into question the Commission’s assessments relating to the relevant product market.
131 In those circumstances, it must be held that, by their complaint, the appellants in fact seek to challenge before the Court of Justice the General Court’s assessment of the evidence available to it and to obtain from the Court of Justice a fresh examination of the facts. However, as is apparent from paragraph 123 above, the appraisal of those facts and the assessment of that evidence do not, except in the case of distortion, which has not been established in the present case, constitute a point of law which is subject as such to review by the Court of Justice.
132 The first part of the third ground of appeal must, therefore, be rejected.
133 The appellants submit that the General Court, in paragraphs 229 to 259 of the judgments in Cases T‑312/20, T‑313/20 and T‑315/20 and in paragraphs 228 to 258 of the judgments in Cases T‑317/20 and T‑319/20, erred in law by approving the insufficient prospective analysis of the effects of the concentration, that analysis being insufficient because the period of analysis was too short.
134 In the first place, the General Court wrongly suggested, in paragraphs 233 and 234 of the judgments in Cases T‑312/20, T‑313/20 and T‑315/20 and in paragraphs 232 and 233 of the judgments in Cases T‑317/20 and T‑319/20, that an examination of market shares would be sufficient, whereas the evidence submitted by the appellants constitutes ‘hypothetical factors the economic implications of which cannot be assessed’ ‘within a reasonable margin of error’.
135 In the second place, the General Court was wrong, in paragraphs 235 to 239 of the judgments in T‑312/20, T‑313/20 and T‑315/20 and in paragraphs 234 to 238 of the judgments in T‑317/20 and T‑319/20, in failing to criticise the Commission for having taken insufficient account of the evolution of the energy transition and the phasing out of nuclear energy by 31 December 2022, by making an overall distinction between the period before 2022 and the period thereafter, as regards the effects of the concentration on RWE’s market shares. First, the General Court itself found that those considerations were limited to RWE’s market shares, which did not take account of the particularities of the market for the first sale of electricity. Second, in recitals 30, 35, 62 and 65 of the decision at issue, the Commission did not sufficiently examine the effects of the concentration beyond 2022, but merely found that the nuclear capacity transferred by E.ON would disappear with the phasing out of nuclear energy during 2022 and that such effects would, therefore, be limited. That is not, however, consistent with Article 2 of Regulation No 139/2004, which requires that the prospective analysis is carried out with great care, since the overall transaction, and the lasting disappearance of E.ON’s potential competition, would affect competition on the market for the first sale of electricity, even beyond the cessation of the use of the production capacity of nuclear power plants in 2022. Third, there can be no question of diligence in establishing the prospective analysis, since the Commission itself admits, in recital 62 of the decision at issue, referred to in the judgments under appeal (paragraph 236 of the judgments in Cases T‑312/20, T‑313/20 and T‑315/20 and paragraph 235 of the judgments in Cases T‑317/20 and T‑319/20) that it did not carry out a full investigation in that regard. The presentation of the facts in the judgments under appeal, in so far as it contradicts the content of the decision at issue, distorts that decision to the detriment of the appellants.
136 In the third place, by stating, in paragraph 240 of the judgments in T‑312/20, T‑313/20 and T‑315/20 and in paragraph 239 of the judgments in T‑317/20 and T‑319/20, that ‘it [would be] reasonable to conclude that [the Commission] relied on a period of three to five years from the notification of the concentration, given in 2019, in carrying out its analysis’, the General Court attributes to the Commission, by distorting the facts, predictions which are not apparent in any way from the decision at issue.
137 That said, that supposed prospect of a duration of three to five years also cannot constitute a prudent prognosis, since that time period is clearly too short to examine the effects of the concentration on the market for the first sale of electricity. In addition, the General Court took the view that the periods of 10 to 15 years used by the Commission in other proceedings were irrelevant, whereas those cases concerned, as in the present case, forecasts on the electricity generation markets. Similarly, it is not true that the Commission did not have evidence which would have enabled it to ‘carry out a prospective analysis extending further into the future’ (paragraph 246 et seq. of the judgments in Cases T‑312/20, T‑313/20 and T‑315/20 and paragraph 245 et seq. of the judgments in Cases T‑317/20 and T‑319/20). Lastly, the General Court’s rejection, in paragraph 257 of the judgments in Cases T‑312/20, T‑313/20 and T‑315/20 and in paragraph 256 of the judgments in Cases T‑317/20 and T‑319/20, of the distortion of competition complained of by the appellants as a result of the financing by the German Government of RWE’s phasing out of coal, on the ground that that financing was declared to be consistent with the provisions governing State aid in Case SA.58181, is also incorrect.
138 The Commission, RWE, E.ON and the German Government dispute the appellants’ arguments.
139 By the second part of the third ground of appeal, which concerns paragraphs 229 to 259 of the judgments in Cases T‑312/20, T‑313/20 and T‑315/20 and paragraphs 228 to 258 of the judgments in Cases T‑317/20 and T‑319/20, the appellants submit that the General Court erred in law by approving the prospective analysis of the effects of the concentration, which in their view was insufficient, because the period of analysis was too short.
140 In paragraphs 231 to 235 of the judgments in Cases T‑312/20, T‑313/20 and T‑315/20 and in paragraphs 230 to 234 of the judgments in Cases T‑317/20 and T‑319/20, the General Court recalled, referring to Article 2(2) and (3) of Regulation No 139/2004, that, in the control of concentrations, the Commission is required to give a prognosis as to the market’s future developments. The General Court observed that that prospective analysis must be carried out with great care since it does not entail the examination of past events - for which many items of evidence are often available to enable their causes to be understood - but rather a prediction of events which are more or less likely to occur in the future if a decision prohibiting the planned concentration or laying down the conditions for it is not adopted. The General Court stated that a prospective analysis consisting in an examination of how a concentration might alter the factors determining the state of competition on a given market makes it necessary to envisage various chains of cause and effect with a view to ascertaining which of them are the most likely. Lastly, the General Court recalled that the assessment of a concentration is carried out solely on the basis of the matters of fact and law existing at the time of notification of that concentration and not on the basis of hypothetical factors the economic implications of which cannot be assessed at the time when the decision is adopted. The General Court concluded from this that the Commission is expected to carry out an assessment of the effects of the concentration over a period the maximum duration of which cannot exceed - with a sufficient degree of certainty - the time frame within which certain events may occur. The Commission cannot, therefore, be required to carry out a prospective analysis on the basis of elements of which it is not able to envisage, within a reasonable margin of error, the long-term effects.
141 The General Court observed that, in the decision at issue, the Commission had distinguished two periods, the first starting from the completion of the concentration until 31 December 2022, the date decided by the German legislature for the phasing out of nuclear power, and the second after that date; the General Court further noted that the Commission had not, however, specified the maximum cut-off date for that second period and considered it reasonable to conclude that the Commission had relied, in conducting its analysis, on a period of three to five years from the notification, made in 2019, of that concentration (paragraphs 236 to 240 of the judgments in Cases T‑312/20, T‑313/20 and T‑315/20 and paragraphs 235 to 239 of the judgments in Cases T‑317/20 and T‑319/20).
142 In response to the appellants’ complaint that, in accordance with its previous decision-making practice, the Commission should instead have envisaged a period of prospective analysis of 15 to 20 years, taking into account, in their view, the length of the investment cycles appropriate to the electricity market and the upheavals in that market as a result of the energy transition and the phasing out of nuclear energy, the General Court responded that, in those earlier cases, the Commission had information which permitted it to take into consideration, with reasonable certainty, the development of the market during such a period (paragraph 245 of the judgments in Cases T‑312/20, T‑313/20 and T‑315/20 and paragraph 244 of the judgments in Cases T‑317/20 and T‑319/20).
143 The General Court examined whether, in the present case, the Commission had information which would have allowed it to carry out a prospective analysis extending further into the future than that carried out in the decision at issue (paragraphs 246 to 258 of the judgments in Cases T‑312/20, T‑313/20 and T‑315/20 and paragraphs 245 to 257 of the judgments in Cases T‑317/20 and T‑319/20). It observed, in that regard, that the appellants referred only to their own investment plans, without referring to any plans that RWE might make following the concentration and that, to the contrary, the appellants had pointed out that RWE and E.ON could be deterred from making massive investments after the concentration. The General Court inferred therefrom that, even assuming that the investment cycles in that sector were indeed extended over periods of 15 to 20 years, as the appellants maintained, the Commission could not base its prospective analysis on such a period of time for that reason alone (paragraph 249 of the judgments in Cases T‑312/20, T‑313/20 and T‑315/20 and paragraph 248 of the judgments in Cases T‑317/20 and T‑319/20). As regards the potential impact of the phasing out of coal, the General Court noted that the Gesetz zur Reduzierung und zur Beendigung der Kohleverstromung (Law on the reduction and cessation of coal-fired power generation) of 8 August 2020 (BGBl. 2020 I, p. 1818; ‘the Law on the phasing out of coal’) was subsequent to the adoption of the decision at issue, although it had been enacted following a report prior to that adoption which envisaged a phasing out of coal towards 2038 (paragraphs 250 and 251 of the judgments in Cases T‑312/20, T‑313/20 and T‑315/20 and paragraphs 249 and 250 of the judgments in Cases T‑317/20 and T‑319/20). The General Court noted that that report did not determine a specific date for the closure of Uniper SE’s coal-fired power plants - a company the disappearance of which the appellants referred to, in order to argue that the structure of the market would change to the benefit of RWE - but stated that the coal mine operator supplying Uniper planned to operate until the mid-2030s (paragraphs 252 and 253 of the judgments in Cases T‑312/20, T‑313/20 and T‑315/20 and paragraphs 251 and 252 of the judgments in Cases T‑317/20 and T‑319/20). The General Court, after referring to a press release of the German Government of 15 January 2020 mentioning an agreement with the Länder for the phasing out of coal, and a press release from Uniper dated 30 January 2020 stating its intention to phase out coal and certain prospects relating to the failure to bring the Datteln 4 coal-fired power plant online, observed that it was in that context that the Law on the phasing out of coal had been enacted; the General Court added that Article 4 of that law which, although providing for a timetable for the reduction and cessation of emissions from coal-fired power stations, does not name the coal-fired power stations concerned, unlike the Law on the phasing out of nuclear energy (paragraphs 253 and 254 of the judgments in Cases T‑312/20, T‑313/20 and T‑315/20 and paragraphs 252 and 253 of the judgments in Cases T‑317/20 and T‑319/20).
144 The General Court inferred from that that even if the Commission was aware that a law on the phasing out of coal was in preparation and that Uniper would stop operating its coal-fired power stations, it was not in a position to ascertain, at the time of the adoption of the decision at issue, the precise arrangements of that law, which were not specified until January 2020. The General Court also noted that the appellants were concerned only with Uniper without taking into account the likely effects of that law on RWE, which also owned coal-fired power stations. Lastly, it found that, since the conventional electricity generation assets of E.ON affected by the concentration were nuclear assets and not coal-fired power plants, the Commission was not required to take into account the changes brought about by that same law in the market for the generation and wholesale supply of electricity in order reasonably to anticipate the effects of the concentration on a market thus redefined. The General Court added that that was all the more justified because, as the phasing out of coal had to extend to 2038, such an exercise would have required the Commission to make a projection into a very distant future that could be affected by changes which were not yet foreseeable but could further alter the structure of the market (paragraph 255 of the judgments in Cases T‑312/20, T‑313/20 and T‑315/20 and paragraph 254 of the judgments in Cases T‑317/20 and T‑319/20).
145 As regards the appellants’ argument that the Law on the phasing out of coal distorts competition in so far as the German Government provides RWE with considerable financial resources, the General Court found that the Commission had not characterised the tendering procedure of the Federal Republic of Germany as a distortion of competition, but had concluded that those financial resources constituted aid compatible with the internal market (paragraph 257 of the judgments in Cases T‑312/20, T‑313/20 and T‑315/20 and paragraph 256 of the judgments in Cases T‑317/20 and T‑319/20).
146 The General Court concluded that the Commission did not have information allowing it to carry out a prospective analysis based on a period longer than the one which it had chosen (paragraph 258 of the judgments in Cases T‑312/20, T‑313/20 and T‑315/20 and paragraph 257 of the judgments in Cases T‑317/20 and T‑319/20).
147 At the outset, it should be observed that the reiteration of the Commission’s obligations - set out in paragraphs 231 to 233 of the judgments in Cases T‑312/20, T‑313/20 and T‑315/20 and in paragraphs 230 to 232 of the judgments in Cases T‑317/20 and T‑319/20 - as regards the prospective analysis of the future development of the market concerned to be carried out by that institution overlaps with the findings of the Court of Justice set out in paragraphs 80 to 85 of the judgment of 13 July 2023, Commission v CK Telecoms UK Investments (C‑376/20 P, EU:C:2023:561), and that the appellants do not claim, let alone establish, that the General Court erred in law in those paragraphs of the judgments in Cases T‑312/20, T‑313/20, T‑315/20, T‑317/20 and T‑319/20. By contrast, they submit that the General Court erred in law by approving the prospective analysis of the effects of the concentration, which, in their view, was insufficient because the period of that analysis too was short.
148 In that regard, the appellants’ first complaint that the General Court suggested that an examination of market shares would be sufficient, recalled in paragraph 134 above, is based on a misreading of the judgments under appeal. In paragraphs 233 and 234 of the judgments in Cases T‑312/20, T‑313/20 and T‑315/20 and in paragraphs 232 and 233 of the judgments in Cases T‑317/20 and T‑319/20, the General Court did not suggest that an examination of market shares would be sufficient, or comment on the quality of the evidence submitted by the appellants, but merely recalled the scope of the Commission’s duty of examination.
149 As regards the appellants’ second complaint, alleging that the Commission did not take sufficient account of the change in the energy transition and the phasing out of nuclear power, it must be found that that complaint concerns the assessments made by the Commission in the decision at issue and not the findings of the General Court. As regards those findings, that complaint is limited to the general assertions that, first, the General Court did not take account of the particular features of the market for the first sale of electricity and, second, the presentation of the facts, in so far as it contradicts the content of the decision at issue, distorts that decision to the detriment of the appellants. In that regard, apart from the fact that the claim of distortion must, as is clear from the case-law cited in paragraph 124 above, contain a precise indication of the evidence alleged to have been distorted and a demonstration of errors of analysis which led the General Court to that distortion, which is not the case here, it should be noted that, by their complaint, the appellants in fact criticise the General Court not for an error of law but for its assessment of the evidence. However, as has been pointed out in paragraph 125 above, it is for the General Court alone to assess the weight which should be attached to the evidence submitted to it.
150 As regards the appellants’ third complaint that the General Court distorted the facts by attributing to the Commission, in paragraph 240 of the judgments in Cases T‑312/20, T‑313/20 and T‑315/20 and in paragraph 239 of the judgments in Cases T‑317/20 and T‑319/20, forecasts which were not apparent from the decision at issue, it must be found that the facts allegedly distorted are not clearly identified.
151 As regards the appellants’ assertion that a forecasting time horizon of three to five years could not constitute a sufficient horizon - that period being, according to the appellants, too short for the market for the first sale of electricity, which entails high costs and is characterised by significantly longer investment cycles - it must be found that neither Article 2 of Regulation No 139/2004 nor the case-law relied on by the appellants defines a precise period for the purposes of the Commission’s prospective analysis of the future effects of the notified concentration. In addition, by that complaint, and by their arguments that the Commission had in its possession information which could have enabled it to carry out a prospective analysis extending further into the future, the appellants seek, ultimately, to submit for assessment by the Court of Justice, without, however, establishing any distortion or error of law by the General Court, the assessment of the facts carried out by the Commission and endorsed by the General Court in its review of the legality of the decision at issue.
152 In those circumstances, the second part of the third ground of appeal must be rejected.
153 The appellants submit that, in paragraphs 260 to 336 of the judgments in Cases T‑312/20, T‑313/20 and T‑315/20 and in paragraphs 259 to 335 of the judgments in Cases T‑317/20 and T‑319/20, the General Court erred in law in the assessment of RWE’s market power.
154 First of all, the General Court wrongly classified the allocation and importance of E.ON’s assets acquired by RWE. First, paragraph 286 et seq. of the judgments in Cases T‑312/20, T‑313/20 and T‑315/20 and paragraph 285 et seq. of the judgments in Cases T‑317/20 and T‑319/20 show that the General Court wrongly offset the capacities of the small Innogy power plants transferred to E.ON by the capacities acquired by RWE, thereby regarding it as having been established that RWE’s business would be declining (the end of paragraph 291 of the judgments in Cases T‑312/20, T‑313/20 and T‑315/20 and the end of paragraph 290 of the judgments in Cases T‑317/20 and T‑319/20). That error is due to the fact that the Commission, which was not criticised in that regard by the General Court, did not define the market. However, the capacities of those small power plants should have been attributed not to the market for the first sale of electricity, on which RWE strengthens its dominant position, but to the retail business, from which RWE withdrew for the benefit of its partner E.ON. Second, the nominal increase in RWE’s market share, which is apparently low as a result of the phasing out of nuclear power and coal and the simultaneous development of electricity generation from renewable energy sources, cannot be considered as being ‘non-critical’ for the purposes of Article 2 of Regulation No 139/2004. The Commission itself undertook to assess ‘in any event … market shares in the light of likely market conditions’. Thus, it should itself have continued its investigation, which was not the case.
155 Next, in their analysis of the Residual Supply Index (‘the RSI’), the German authorities considered that a supplier has market power when it is pivotal, namely that, without its installations, demand cannot be satisfied for more than 5% of the hours of the year (paragraph 303 of the judgments in Cases T‑312/20, T‑313/20 and T‑315/20 and paragraph 302 of the judgments in Cases T‑317/20 and T‑319/20). That is precisely the situation in the present case, as is shown by the Oxera study, cited in paragraph 310 of the judgments in Cases T‑312/20, T‑313/20 and T‑315/20 and in paragraph 309 of the judgments in Cases T‑317/20 and T‑319/20. The General Court nevertheless held that that variation is irrelevant for the purposes of applying Article 2(2) and (3) of Regulation No 139/2004 because, in its view, an increase in RWE’s pivotality of 1.5 (2019) or 1.3 (2022) percentage points does not radically deviate from the variation found in other studies provided by third parties. That does not, however, invalidate the finding that the threshold for a dominant position was exceeded by RWE, but merely confirms the validity of the Oxera study. The General Court also failed to point out that it is common ground that the Commission itself did not make any forecasts on the basis of the RSI and that the Federal Competition Authority, which cooperates closely with it, considered the RSI only from a historical perspective and not from the point of view of its future development, which does not constitute a diligent prognosis. Moreover, in paragraphs 300 to 311 of the judgments in Cases T‑312/20, T‑313/20 and T‑315/20 and in paragraphs 299 to 310 of the judgments in Cases T‑317/20 and T‑319/20, the General Court disregarded the fact that the Federal Cartel Office largely confirmed the relevance of the forecasts in the Oxera study.
156 Lastly, as regards RWE’s increasing potential to resort to a strategic use of its growing fleet of power stations, the General Court did not sufficiently address the appellants’ counter-arguments and, by misinterpreting Article 2 of Regulation No 139/2004, confirmed the Commission’s arguments (paragraphs 312 to 329 of the judgments in Cases T‑312/20, T‑313/20 and T‑315/20 and paragraphs 311 to 328 of the judgments in Cases T‑317/20 and T‑319/20). In paragraphs 316 to 322 of the judgments in Cases T‑312/20, T‑313/20 and T‑315/20 and in paragraphs 315 to 321 of the judgments in Cases T‑317/20 and T‑319/20, the General Court reproduced the Commission’s incorrect characterisation that the power plants which generate from renewable energy sources are generally ‘the most costly to withhold’ because of their low marginal costs and that the extent to which the power plants benefiting from the EEG law benefit from a price increase is significantly reduced on the market for the first sale of electricity. However, the very premisses of that assertion fail to reflect the strategic usefulness of the overall portfolio which has increased.
157 The Commission, RWE, E.ON and the German Government dispute the appellants’ arguments.
158 By the third part of the third ground of appeal, which concerns paragraphs 260 to 336 of the judgments in Cases T‑312/20, T‑313/20 and T‑315/20 and paragraphs 259 to 335 of the judgments in Cases T‑317/20 and T‑319/20, the appellants submit that the General Court’s assessment of RWE’s market power is vitiated by errors of law.
159 As regards, in the first place, the appellants’ arguments referred to in paragraph 154 above, according to which the General Court incorrectly classified the allocation and importance of E.ON’s assets acquired by RWE, it should be noted that the appellants in fact challenge the assessment of the facts and evidence by the Commission, and then by the General Court, without, however, establishing an error of law on the part of the General Court. In addition, as regards the arguments that the capacities of small Innogy power plants do not fall within the market for the generation and first sale of electricity, it should be borne in mind that the appellants’ criticism of the General Court’s review of the Commission’s assessments relating to the definition of the market was rejected in paragraphs 122 to 132 above.
160 In the second place, as regards the extent of RWE’s pivotality in the market for the generation and wholesale supply of electricity, that is to say, the degree to which RWE’s generation capacities are indispensable for meeting demand on the electricity market, the appellants refer to the Oxera study, which, it is claimed, proves an increase in RWE’s pivotality to more than 5% of the hours of the year. In essence, they criticise the General Court for failing to draw the appropriate conclusions from that circumstance in order to conclude that the Commission ought to have found a strengthening of RWE’s dominant position as a result of the notified transaction.
161 It should be noted that, in paragraph 300 et seq. of the judgments in Cases T‑312/20, T‑313/20 and T‑315/20 and in paragraph 299 et seq. of the judgments in Cases T‑317/20 and T‑319/20, the General Court examined the Commission’s assessment of the extent of RWE’s pivotality on the market for the generation and wholesale supply of electricity. The General Court observed, in essence, that the RSI analysis consists in assessing whether a company is pivotal, that is to say whether it is indispensable to meet demand. In practice, the purpose of that analysis is to measure, for all hours in a given year, whether the generation capacity of the competitors of the entity under examination is sufficient to meet demand irrespective of the production capacity of that entity (paragraph 302 of the judgments in Cases T‑312/20, T‑313/20 and T‑315/20 and paragraph 301 of the judgments in Cases T‑317/20 and T‑319/20). After referring to the findings in the decision at issue that, according to the German competition authorities, a pivotality of 5% is indicative of the market power of the entity under examination, and the RSI has limitations which reduce its usefulness in the review of concentrations, the General Court found that the Commission had nevertheless taken into consideration the RSI analyses for the purposes of its assessment (paragraphs 304 and 305 of the judgments in Cases T‑312/20, T‑313/20 and T‑315/20 and paragraphs 303 and 304 of the judgments in Cases T‑317/20 and T‑319/20).
162 In paragraphs 306 to 310 of the judgments in Cases T‑312/20, T‑313/20 and T‑315/20 and in paragraphs 305 to 309 of the judgments in Cases T‑317/20 and T‑319/20, the General Court examined the findings made by the Commission in the decision at issue as regards those analyses and, in particular, the analysis resulting from the Oxera study produced by the appellants. The General Court held that the Commission’s finding that the assumptions on which that study was based, namely RWE’s withholding of wind generation capacity and its control over E.ON’s generation capacity, did not reflect reality, was substantiated (paragraphs 308 and 309 of the judgments in T‑312/20, T‑313/20 and T‑315/20 and paragraphs 307 and 308 of the judgments in T‑317/20 and T‑319/20, referring, respectively, to paragraphs 322 and 391 of the judgments in T‑312/20, T‑313/20 and T‑315/20 and to paragraphs 321 and 390 of the judgments in T‑317/20 and T‑319/20).
163 In addition, the General Court noted that the increase in RWE’s pivotality according to the Oxera study was not radically different from that noted in other studies submitted by third parties, and that the RSI values calculated for 2024 were identical in the scenario in which no concentration takes place and the post-concentration scenario, which demonstrates that, following the phasing out of nuclear energy at the end of 2022, there is no increase in RWE’s pivotality (paragraph 310 of the judgments in Cases T‑312/20, T‑313/20 and T‑315/20 and paragraph 309 of the judgments in Cases T‑317/20 and T‑319/20).
164 The General Court concluded from this that the appellants did not demonstrate the existence of a manifest error of assessment by the Commission in its analysis of RWE’s pivotality.
165 It must be held that that review by the General Court of the Commission’s assessments does not contain any error of law and that, by their complaints, the appellants seek, in essence, to have the Court of Justice re-examine the facts and evidence submitted to the General Court. As is apparent from the case-law referred to in paragraph 123 above, the appraisal of those facts and the assessment of that evidence do not, except in the case of distortion, which has not been established in the present case, constitute a point of law which is subject as such to review by the Court of Justice.
166 In the third place, the appellants submit that the General Court, in paragraphs 312 to 329 of the judgments in Cases T‑312/20, T‑313/20 and T‑315/20 and in paragraphs 311 to 328 of the judgments in Cases T‑317/20 and T‑319/20, did not sufficiently address the counter-arguments which they had put forward, relating to RWE’s increasing potential to resort to a strategic use of its growing fleet of power stations, and wrongly confirmed the Commission’s arguments in that regard.
167 It should be noted that, in those paragraphs, the General Court examined the issue of RWE’s incentives to adopt capacity withholding strategies and to have recourse to other strategic uses of its electricity generation portfolio.
168 The General Court recalled at the outset that it is for the Commission to make an overall assessment of what is shown by the set of indicative factors used to evaluate the competitive situation, that it may, in application of that overall assessment, prioritise certain factors and discount others, and that the General Court must review the legality of that examination and associated reasoning.
169 Next, in paragraphs 316 to 319 of the judgments in Cases T‑312/20, T‑313/20 and T‑315/20 and in paragraphs 315 to 318 of the judgments in Cases T‑317/20 and T‑319/20, the General Court examined the various aspects of a possible capacity withholding strategy assessed by the Commission in recitals 49 to 65 of the decision at issue, in particular the fact that, among the flexible generation technologies, electricity generating installations from renewable energy sources have the lowest marginal costs, and therefore the highest withholding costs. The General Court noted that electricity generators had confirmed that those installations are typically run at full capacity and that their withholding makes sense only when sale prices are negative. The General Court noted the Commission’s assessment that RWE’s acquisition of wind farms as part of the notified transaction did not increase its ability to withhold capacity to any decisive extent, and that the ‘direct selling’ scheme applicable to wind-generated electricity had the effect of significantly reducing the incentive, for an installation for the generation of electricity from wind energy, of a price increase on the wholesale market. The General Court also referred to the Commission’s finding that the increment in RWE’s withholding capacity as a result of the acquisition of nuclear capacity was both temporary and limited and therefore unlikely to have a material effect on RWE’s incentives to engage in a capacity-withholding strategy. The General Court referred to the Commission’s consideration of the Oxera study, produced by the appellants, and its assessment that that study had not altered its conclusion.
170 In paragraphs 320 to 324 of the judgments in Cases T‑312/20, T‑313/20 and T‑315/20 and in paragraphs 319 to 323 of the judgments in Cases T‑317/20 and T‑319/20, the General Court examined whether the Commission had made a manifest error of assessment in its analysis of the risk of RWE’s withholding of capacity and ruled out the existence of such an error. In particular, the General Court recalled its finding that the Commission had not committed a manifest error in considering that the increment in RWE’s market shares was not significant and was, in any event, temporary. It inferred from this that no additional withholding capacity could be expected to result from the concentration after the phasing out of nuclear energy at the end of 2022, as was confirmed by the Oxera study. With regard to RWE’s possible incentives to withhold capacity in the short term, that is to say, before the phasing out of nuclear energy, the General Court noted the Commission’s finding that installations operating from renewable energy sources are not suitable for withholding, given their low marginal costs. As regards installations operating from non-renewable energy sources, the General Court referred to the Commission’s assessment that any price increase caused by withholding of those installations would mean that the remuneration of installations generating renewable energy under the EEG would decrease. The General Court also held that RWE’s acquisition of a minority shareholding in the Emsland and Gundremmingen C nuclear power plants would have only a limited and temporary impact in terms of incentives for capacity withholding. The General Court noted that Oxera’s study did not establish the existence of a significant increase in incentives to withhold. That court concluded that the Commission did not commit a manifest error of assessment in its analysis of RWE’s possibility and incentives to withhold production capacity following the concentration.
171 It follows from the foregoing that the General Court verified in detail the Commission’s examination of the issue of the risk of RWE withholding its generation capacity after the concentration and that it reached the conclusion that, on the basis of the information in the file and the evidence provided, in particular by the appellants, the Commission had not committed any manifest error of assessment in that regard. The appellants’ arguments before the Court of Justice, set out in paragraphs 154 to 156 above, do not establish any error of law on the part of the General Court in its review of the Commission’s assessments, but ultimately seek to have the Court of Justice carry out a fresh examination of the facts, which falls outside the jurisdiction of the Court of Justice in the context of an appeal.
172 In those circumstances, the third part of the third ground of appeal must be rejected.
173 By the fourth part of the third ground of appeal, which concerns paragraphs 337 to 395 of the judgments in Cases T‑312/20, T‑313/20 and T‑315/20 and paragraphs 336 to 394 of the judgments in Cases T‑317/20 and T‑319/20, and which is divided, in essence, into three complaints, the appellants submit that the General Court erred in law as regards the assessment of the competitive relationship between RWE and E.ON.
174 The appellants submit that, in paragraphs 339 to 346 of the judgments in Cases T‑312/20, T‑313/20 and T‑315/20 and in paragraphs 338 to 345 of the judgments in Cases T‑317/20 and T‑319/20, the General Court assumed that the Commission had sufficiently examined all the cross-shareholdings of the groups of undertakings to which RWE and E.ON belong and, in particular, that it had taken account of the production capacities of their subsidiaries. It is not, however, disputed that the Commission failed to examine the effects of those cross-shareholdings on the conduct of the parties to the concentration or on that of their competitors as regards investment and market expansion, contrary to point 36 of the Horizontal Merger Guidelines. The fact that both RWE and E.ON have their registered offices in Essen (Germany), which is the ‘German energy capital’, is a strategic asset. However, the General Court considered that fact to be irrelevant, whereas, according to the Commission’s decision-making practice, the existence of a common registered office should be analysed from the point of view of the competitive advantages which the parties to a concentration hope to obtain.
175 The Commission, RWE and E.ON dispute the appellants’ arguments.
176 As regards the alleged failure of the General Court to have regard to point 36 of the Horizontal Merger Guidelines, in that it did not find that the Commission erred in failing to examine the effects of the interdependence between the groups of undertakings to which RWE and E.ON belong on the conduct of the parties to the concentration or their competitors, it should be borne in mind that, as the General Court points out in paragraphs 349 and 350 of the judgments in Cases T‑312/20, T‑313/20 and T‑315/20 and paragraphs 348 and 349 of the judgments in Cases T‑317/20 and T‑319/20, although the Commission is bound by the notices which it issues in the area of supervision of concentrations, the Horizontal Merger Guidelines do not require an examination in every case of all the factors which are mentioned therein. In that regard, it is apparent from point 13 of the Horizontal Merger Guidelines that the competitive analysis to be carried out by the Commission must not be based on a mechanical application in all cases of the factors which they identify, but on an overall assessment of the foreseeable impact of the merger, and that not all the elements which those guidelines identify are relevant in each and every horizontal merger.
177 While it is for the General Court to examine to what extent any omissions on the part of the Commission are capable of calling into question its conclusion that the concentration does not raise serious doubts as to its compatibility with the internal market, that examination must take account of the discretion enjoyed by the Commission where it carries out, for the purposes of applying the substantive rules of Regulation No 139/2004, and in particular Article 2 thereof, prospective economic analyses which are more often than not complex. It follows that the review by the European Union Courts of a Commission decision relating to concentrations must focus on ascertaining that the facts have been accurately stated and that there has been no manifest error of assessment (see, to that effect, judgment of 13 July 2023, Commission v CK Telecoms UK Investments, C‑376/20 P, EU:C:2023:561, paragraphs 82 to 84).
178 In the present case, in paragraphs 341 and 342 of the judgments in Cases T‑312/20, T‑313/20 and T‑315/20 and in paragraphs 340 and 341 of the judgments in Cases T‑317/20 and T‑319/20, the General Court, after observing that the appellants did not explain the effect that RWE’s and E.ON’s shareholdings in the energy sector might have for the analysis of the impediments to competition connected with the concentration, but merely referred to the number of holdings of RWE and E.ON in other undertakings without explaining whether those undertakings were active on the relevant markets, observed that the Commission had, in its assessment, taken into account the production capacities of the subsidiaries and undertakings in which RWE and E.ON have shareholdings. In so doing, as the General Court correctly found, the Commission clearly took into account the direct or indirect shareholdings of RWE and E.ON.
179 In paragraphs 343 to 346 of the judgments in Cases T‑312/20, T‑313/20 and T‑315/20 and in paragraphs 342 to 345 of the judgments in Cases T‑317/20 and T‑319/20, as regards the appellants’ argument that E.ON and RWE were structured and positioned in a similar way, the General Court observed that the appellants did not explain how the parallel trend in the stock market prices and in the operating profit of those undertakings, or even the fact that their registered offices are located in the same city, affected the application of merger law and, in particular, how those circumstances could have an impact on the creation or strengthening of any dominant position of RWE. The General Court held that those circumstances were merely incidental in nature, that the location of the registered offices in the same city had no relevance in assessing the effects of the concentration on the market for the generation and wholesale supply of electricity, and that the parallel trend of stock market prices and profits could be explained by the normal trend for two companies operating in the same sector. The General Court added that the appellants failed to explain how the mere geographical proximity of the personnel of RWE and E.ON could lead to the emergence of cooperation which is contrary to EU law. The General Court concluded that the Commission had, therefore, not committed a manifest error of assessment as regards the relationship of interdependence and the proximity between RWE and E.ON.
180 It must be found that the appellants’ arguments do not establish that those assessments are vitiated by an error of law. Reliance on an alleged failure to examine the effects of the interdependence between the E.ON and RWE groups, from a failure to verify the effects of the concentration on the conduct of the parties to the concentration or that of their competitors as regards investment and market expansion, is not sufficient to consider that the General Court erred in law in the light of its review, both detailed and within the limits set out in paragraph 177 above, of the examination carried out by the Commission in the decision at issue. In addition, the appellants’ arguments seek, in actual fact, from the Court of Justice a fresh examination of the facts, which falls outside the jurisdiction of that court in the context of an appeal.
181 It follows that the first complaint must be rejected.
182 The appellants submit that the General Court erred in law in paragraphs 351 to 355 of the judgments in Cases T‑312/20, T‑313/20 and T‑315/20 and in paragraphs 350 to 354 of the judgments in Cases T‑317/20 and T‑319/20. First, for the reasons already mentioned in the third part of the third ground of appeal in the present appeals, such an error would be constituted by the General Court’s finding that the Commission was entitled to refrain from examining the competitive relationship between RWE and E.ON on account of the limited increase in RWE’s market shares.
183 Second, there is no justification for the General Court’s assertion, in paragraph 358 of the judgments in Cases T‑312/20, T‑313/20 and T‑315/20 and in paragraph 357 of the judgments in Cases T‑317/20 and T‑319/20, that the mere easing of the competitive pressure due to the elimination of an undertaking whose role is more important than its market shares suggest is not sufficient to establish the existence of a significant impediment to effective competition.
184 Third, the assertion, in paragraphs 359 to 363 of the judgments in Cases T‑312/20, T‑313/20 and T‑315/20 and in paragraphs 358 to 362 of the judgments in Cases T‑317/20 and T‑319/20, that E.ON’s withdrawal from the generation sector is not exclusively attributable to the concentration, since E.ON had already transferred electricity generation activities prior to concentration M.8871 and, in the context of that concentration, transferred only parts of those activities, does not bear scrutiny. First of all, by stating, in paragraph 357 of the judgments in Cases T‑312/20, T‑313/20 and T‑315/20 and in paragraph 356 of the judgments in Cases T‑317/20 and T‑319/20, that concentration M.8871 does not concern the acquisition of E.ON itself, but only the acquisition by RWE of certain of its assets, the General Court’s reasoning is formalistic without taking into account the concentration as a whole. Next, in paragraph 362 of the judgments in Cases T‑312/20, T‑313/20 and T‑315/20 and in paragraph 361 of the judgments in Cases T‑317/20 and T‑319/20, the General Court observed that E.ON retained a generation business after the concentration, without taking account of the fact that that was only the generation business attributed exclusively to E.ON as an integral part of the offer of solutions to customers forming part of the retail businesses, which ought to have been found by the Commission and the General Court if the market had been defined in detail.
185 The Commission, RWE and E.ON dispute the appellants’ arguments.
186 The appellants submit that the General Court erred in law in upholding the Commission’s assessment that E.ON’s withdrawal from the electricity generation market was not a ground for prohibiting the concentration.
187 In paragraphs 349 to 351 of the judgments in Cases T‑312/20, T‑313/20 and T‑315/20 and in paragraphs 348 to 350 of the judgments in Cases T‑317/20 and T‑319/20, in the light of the appellants’ argument that the Commission failed to have regard to point 27 of the Horizontal Merger Guidelines, the General Court recalled, in essence, first, that although the Commission is bound by notices which it issues in the area of supervision of concentrations, those notices do not require it to examine in every case the factors which they mention, with the result that the Commission enjoys a discretion as to whether or not to take account of certain factors; second, the General Court recalled that its own review cannot be limited to examining whether or not the Commission took into account certain of that evidence, but that that court must also consider whether any possible omissions on the part of the Commission are capable of calling into question its finding that the notified concentration does not raise serious doubts as to its compatibility with the internal market.
188 That reiteration by the General Court of the scope of the Commission’s notices and the system of review which the General Court applies to the Commission’s assessments does not contain any error of law.
189 In addition, in paragraph 352 of the judgments in Cases T‑312/20, T‑313/20 and T‑315/20 and in paragraph 351 of the judgments in Cases T‑317/20 and T‑319/20, the General Court found that RWE’s market shares prior to the concentration were limited and that their increase after the concentration was also limited, especially since some of Innogy’s generation assets would be transferred to E.ON on a permanent basis. In paragraph 353 of the judgments in Cases T‑312/20, T‑313/20 and T‑315/20 and in paragraph 352 of the judgments in Cases T‑317/20 and T‑319/20, the General Court noted the Commission’s conclusion that the generation of electricity from renewable energy sources was fragmented among a large number of producers, that RWE’s market shares were limited and that E.ONs’ market shares were even more limited. In paragraph 354 of the judgments in Cases T‑312/20, T‑313/20 and T‑315/20 and in paragraph 353 of the judgments in Cases T‑317/20 and T‑319/20, the General Court recalled its finding that the Commission had not committed a manifest error of assessment in concluding that the increment in RWE’s market shares was limited and temporary.
190 In the light of those considerations, the General Court held, in paragraph 355 of the judgments in Cases T‑312/20, T‑313/20 and T‑315/20 and in paragraph 354 of the judgments in Cases T‑317/20 and T‑319/20, that even if the Commission had omitted to analyse certain elements which were required by point 27 of the Horizontal Merger Guidelines, such omissions were not capable of calling into question the Commission’s conclusion that the concentration does not raise serious doubts as to its compatibility with the internal market.
191 It must be found that that assessment by the General Court, which it was entitled to infer from the Commission’s findings, which the appellants had not established to be manifestly incorrect - according to which both the limited nature of the market shares and of their increments by the effect of the notified concentration and the temporary nature of those increments supported the conclusion that that concentration did not raise serious doubts as to its compatibility with the internal market - is not vitiated by any error of law. Moreover, it must be noted, as the General Court observed in paragraph 364 of the judgments in Cases T‑312/20, T‑313/20 and T‑315/20 and in paragraph 363 of the judgments in Cases T‑317/20 and T‑319/20, that the Commission did not confine itself to examining the market shares of the parties to the concentration and their development as a result of that concentration, but took account, in recital 48 et seq. of the decision at issue, of other assessment criteria relating to the specificities of the electricity generation market.
192 In paragraphs 356 to 358 of the judgments in Cases T‑312/20, T‑313/20 and T‑315/20 and in paragraphs 355 to 357 of the judgments in Cases T‑317/20 and T‑319/20, the General Court also observed, in essence, that the appellants were mistaken as to the scope of the Horizontal Merger Guidelines. After recalling that those guidelines mention, among the competitive elements to be examined in the context of non-coordinated effects, first, whether the merging parties are close competitors, second, whether the merged entity is able to hinder expansion by competitors or, third, whether the merger eliminates an important competitive force, the General Court found, in essence, that the appellants were mistaken as to the scope of the concentration at issue, which concerned only E.ON’s assets and not E.ON itself. Thus, the General Court pointed out, first, that E.ON did not disappear as a result of the concentration. Second, it raised the point that the issue was therefore whether the E.ON assets acquired by RWE, on the one hand, and RWE, on the other, were close competitors and whether those assets and RWE could hinder expansion by competitors. However, the appellants proceed from the incorrect premiss that RWE acquired the whole of E.ON through its minority shareholding, which, as the General Court pointed out, is incorrect. Third, the General Court held that, as regards the elimination of competitive pressure on RWE, the mere reduction in such pressure which would result from the elimination of an undertaking with a more important role than its market shares would suggest is not in itself sufficient to prove the existence of a significant impediment to effective competition.
193 It must be stated that, once again, the General Court did not make an error or, as the appellants claim, engage in formalistic reasoning in pointing out that it was not E.ON, but only the assets of that undertaking, which were acquired by RWE in the context of concentration M.8871. As regards the statement that the mere reduction in competitive pressure likely to result from the elimination of an undertaking with a more important role than its market share would suggest is not in itself sufficient to prove the existence of significant impediment to effective competition, that statement is not vitiated by any error of law, particularly in the context, such as that in the present case, of a concentration relating to limited market shares.
194 In paragraphs 359 to 361 of the judgments in Cases T‑312/20, T‑313/20 and T‑315/20 and in paragraphs 358 to 360 of the judgments in Cases T‑317/20 and T‑319/20, the General Court observed that the reduction in E.ON’s generation capacity was not solely the consequence of the concentration. According to the General Court, on the one hand, E.ON had already taken the decision to transfer essential parts of its conventional electricity generation business, with the exception mainly of nuclear capacities, to its former subsidiary, Uniper, and to sell its share in the latter’s capital to Fortum Oyj. On the other hand, the German legislature had decided to phase out E.ON’s nuclear power plants by the end of 2022 at the latest, so that, even if E.ON had retained those assets, it would no longer have been able to operate them from that date. Consequently, according to the General Court, E.ON’s power generation business had already declined significantly before the concentration and was set to decline further thereafter.
195 The appellants do not establish how the General Court, in that context, erred in law by referring to the initiatives actually taken independently by E.ON to reduce its electricity generation business, as well as to the imminent end - resulting not from the notified concentration but from a decision of the German legislature - of nuclear electricity generation activities.
196 Furthermore, in paragraph 362 of the judgments in Cases T‑312/20, T‑313/20 and T‑315/20 and in paragraph 361 of the judgments in Cases T‑317/20 and T‑319/20, the General Court rightly held that it could be inferred from the decision at issue, in particular from the tables in recitals 27 to 29 of that decision, that E.ON did not disappear as a competitor as a result of the concentration. Indeed, it is apparent from that decision that only about [confidential] (2) of E.ON’s total generation in 2017 was to be acquired by RWE as a result of the concentration, that, in relation to conventional electricity, the share of E.ON’s total generation in 2017 acquired by RWE was to be only about [confidential] (3) and that, in the case of electricity generated from renewable energy sources, RWE was to acquire [confidential] (4) of E.ONs’ production.
197 In that regard, the appellants’ observation that the Commission and the General Court could have established, if they had defined the market in detail, that the generation business retained by E.ON was an integral part of an offer of solutions to customers forming part of the retail business and not of the wholesale electricity generation business, is implicitly but necessarily based on the premiss that the Commission made a manifest error of assessment by leaving open the definition of the markets and that the General Court erred in law in upholding that error. However, it is sufficient to note that that premiss has been rejected in paragraphs 122 to 132 of the present judgment, in the context of the examination of the first part of the third ground of appeal.
198 It follows that the present complaint is unfounded.
199 The appellants submit that the General Court, in paragraphs 366 to 391 of the judgments in Cases T‑312/20, T‑313/20 and T‑315/20 and in paragraphs 365 to 390 of the judgments in Cases T‑317/20 and T‑319/20 relied on an insufficient analysis of the management influence conferred on RWE by its minority shareholding in E.ON. It is incorrect to claim that the investor agreement effectively limits that influence, if only because that agreement is void and does not prevent RWE from lawfully derogating from it in the exercise of its right to vote. In any event, RWE’s cross-shareholding in its competitor E.ON should have been taken into account even in the absence of an acquisition of control, pursuant to Article 3 of Regulation No 139/2004, because it is a question of a restriction of competition incompatible with Article 101 TFEU. It should also be noted that none of the parties disputed that, in the context of the concentration, RWE and E.ON specialised at different levels of the electricity market by mutual agreement. At the hearing, E.ON explained that the two groups of undertakings had agreed on that sharing of the market in order to have the financial resources necessary to develop their activities in the context of the energy transition and that it would not have been possible for them to raise those funds if their competitive relationship had remained unchanged.
200 It should be observed that, by the present complaint, the appellants essentially reiterate certain of their arguments which were set out in the first part of the second ground of appeal, relating to the decisive influence which, in their view, RWE acquired over E.ON. In that regard, it is sufficient to note that those arguments have been rejected as ineffective in paragraphs 95 to 97 above.
201 Furthermore, as regards the appellants’ arguments relating to the fact that RWE’s acquisition of a minority shareholding in E.ON should have been taken into account in so far as it constituted a restriction of competition incompatible with Article 101 TFEU, or to the fact that E.ON and RWE shared the markets among themselves, it has already been found, in paragraphs 55 and 56 above, that the General Court did not err in law in holding that it was in the light of Regulation No 139/2004, the purpose of which is the preventive control of concentrations, and not of Regulation No 1/2003, the purpose of which is to review agreements, decisions, concerted practices and situations of dominant position, that compliance with Article 101 TFEU ought to have been, and had rightly been, reviewed by the Commission.
202 The General Court was therefore fully entitled, in paragraph 394 of the judgments in Cases T‑312/20, T‑313/20 and T‑315/20 and in paragraph 393 of the judgments in Cases T‑317/20 and T‑319/20, noting that the decision at issue concerned a concentration, to reject as ineffective the appellants’ arguments alleging an infringement of Article 101 TFEU.
203 It follows that the third complaint and, therefore, the fourth part of the third ground of appeal are unfounded.
204 In those circumstances, since none of the parts of the third ground of appeal are well founded, that ground must be rejected.
205 The appellants submit that, in paragraphs 273, 278 et seq., 328, 341, 344 and 382 of the judgments in Cases T‑312/20, T‑313/20 and T‑315/20 and in paragraphs 272, 277 et seq., 327, 340, 343 and 381 of the judgments in Cases T‑317/20 and T‑319/20, the General Court calls for more detailed information concerning the specific results which the Commission should have obtained if its review had been correct. Conversely, in paragraphs 406 to 411 of the judgments in Cases T‑312/20, T‑313/20 and T‑315/20 and in paragraphs 405 to 410 of the judgments in Cases T‑317/20 and T‑319/20, the General Court rejected at the outset the offers of evidence submitted to it, in particular the request for the appearance in person or the examination of the former directors of the groups on the sharing of the market. Those decisions run counter to the principles governing the allocation of the burden of proof set out in Articles 91 to 96 of the Rules of Procedure of the General Court.
206 The standard of proof imposed by the General Court is excessive. The appellants had no access to more detailed data than that which they had provided or to the powers of investigation available to the Commission, for example concerning the market shares of electricity generators for calculating the Herfindahl-Hirschman index (‘HHI’). Those requirements are in any event exaggerated, since the appellants are required, in addition to proving manifest errors of assessment, to produce at their own expense the result of investigations or analyses which the Commission has not carried out, all the more so since the General Court limited, at the same time, the length of the pleadings which may be lodged by the appellants. By putting in evidence the Oxera study, confirmed by the analyses of the Federal Competition Authority, and the book Changing Energy, the appellants submitted solid evidence demonstrating the increase in the market power of the parties to the concentration and the anti-competitive sharing of the market. As the Court of Justice has made clear, the evidential requirements in relation to decisions authorising a concentration are identical to those governing their prohibition. The burden of proof lies in any event with the Commission. While that burden may exceptionally be transferred to the parties concerned, that concerns cases where the positive circumstances for those parties contradict the results of the Commission’s investigation and where those parties have access to the evidence, which was not the case here.
207 The Commission, RWE and E.ON dispute the appellants’ arguments.
208 By the present ground of appeal, the appellants submit that the General Court breached the principles governing the allocation of the burden of proof under Articles 91 to 96 of the Rules of Procedure of the General Court.
209 It should be noted at the outset that no rule on the allocation of the burden of proof, whether in an administrative procedure conducted by the Commission or in proceedings before the Courts of the European Union, derives from those provisions, the infringement of which is pleaded in support of the present ground of appeal. Those provisions lay down the rules governing measures of inquiry and the hearing of witnesses and experts, which may be ordered by the General Court.
210 The present ground of appeal, in so far as it is based on the infringement by the General Court of Articles 91 to 96 of its Rules of Procedure, is therefore unfounded.
211 In addition, it should be borne in mind that the Commission is not required, in the area of the control of concentrations, to demonstrate beyond reasonable doubt that a proposed concentration does not raise issues of compatibility with the internal market. It must assess the probabilities and take a decision in respect of or against the proposed concentration, according to its assessment of the economic development attributable to the concentration which is most likely to occur. In that context, it enjoys a broad discretion in assessing complex economic circumstances, which is subject, inter alia, to review by the General Court of whether there has been a manifest error and whether the facts have been accurately stated (see, to that effect, judgment of 13 July 2023, Commission v CK Telecoms UK Investments, C‑376/20 P, EU:C:2023:561, paragraph 84). That being so, where an institution enjoys broad discretion, observance of procedural guarantees is of fundamental importance, including the obligation for that institution to examine carefully and impartially all the relevant aspects of the situation in question (judgment of 4 May 2023, ECB v Crédit lyonnais, C‑389/21 P, EU:C:2023:368, paragraph 57 and the case-law cited).
212 Since the Commission sets out its position in detail in its decision, it is for the appellant to provide equally detailed evidence to counter that position. That evidential requirement does not constitute, as the appellants suggest in the present case, an undue reversal of the burden of proof to their detriment, but reflects the burden on each party to substantiate its position before the General Court (see to that effect, judgment of 21 September 2006, Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission, C‑105/04 P, EU:C:2006:592, paragraph 181).
213 In the present case, the General Court simply found, in essence, that the appellants had not sufficiently substantiated their challenge to the assessments made by the Commission in the decision at issue.
214 Thus, as regards the fact that, in paragraph 273 of the judgments in Cases T‑312/20, T‑313/20 and T‑315/20 and in paragraph 272 of the judgments in Cases T‑317/20 and T‑319/20, the General Court observed that the appellants did not provide their own HHI calculations for the purposes of demonstrating that, if the Commission had taken them into account, it would have reached a different conclusion, it must be found, as the General Court did, that the Commission was not required to take the HHI into account in its assessment; further, in so far as the appellants criticised the Commission for not taking that index into account, it was incumbent upon those appellants to explain how the use of that index would have altered its assessment. It follows that the mere complaint that the HHI was not taken into account is not sufficient to establish an error on the part of the Commission, and that the General Court did not err in law in finding that the appellants had not substantiated their arguments on that point.
215 Moreover, in paragraphs 278 to 280 of the judgments in Cases T‑312/20, T‑313/20 and T‑315/20 and in paragraphs 277 to 279 of the judgments in Cases T‑317/20 and T‑319/20, the General Court did not err in law in finding that it is not sufficient for the appellants to use data different from those used by the Commission in order to establish a manifest error of assessment by the Commission, without providing any specific evidence capable of showing that the taking into account of the data used by the Commission in the decision at issue constituted a manifest error of assessment by the Commission.
216 The same is true of the considerations relating to the effect of RWE’s capacity increases, to the effect of RWE’s and E.ON’s shareholdings in third-party undertakings, to the significance of the parallel trend in the stock market prices and the operating profits of E.ON and RWE and of the presence of the registered offices in the same city and to the effect of RWE’s minority shareholding in E.ON - set out in paragraphs 328, 341, 344 and 382 respectively of the judgments in Cases T‑312/20, T‑313/20 and T‑315/20 and paragraphs 327, 340, 343 and 381 of the judgments in Cases T‑317/20 and T‑319/20 - by which the General Court found, in essence, that the appellants, while alleging manifest errors of assessment on the part of the Commission, did not submit before that court any concrete evidence or convincing explanation of the existence of such manifest errors.
217 As regards the fact that the General Court did not consider it necessary to hear witnesses proposed by the appellants, it is apparent from the procedural considerations set out in paragraph 410 of the judgments in Cases T‑312/20, T‑313/20 and T‑315/20 and in paragraph 409 of the judgments in Cases T‑317/20 and T‑319/20, which have not been properly challenged before the Court of Justice, and from the fact that the General Court is, in any event, in accordance with the case-law referred to in paragraph 71 of the present judgment, the sole judge for determining whether appearance in person or the hearing of witnesses is necessary, that the General Court did not err in law in so proceeding.
218 The fourth ground of appeal is, therefore, rejected.
219 Since all the grounds of appeal raised in support of the present appeals have been rejected, those appeals must be dismissed in their entirety.
220 Under Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to the costs. Under Article 138(1) and (2) of those rules of procedure, applicable to the procedure on an appeal by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission, RWE and E.ON have applied for costs against the appellants and the appellants have been unsuccessful, the latter must be ordered to bear their own costs and to pay those incurred by the Commission, E.ON and RWE.
221 Article 140(1) of the Rules of Procedure, which is also applicable to the procedure on an appeal, 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. 1. Dismisses the appeals; 2. Orders EVH GmbH to pay, in addition to bearing its own costs, those incurred by the European Commission, E.ON SE and RWE AG in Case C‑464/23 P. 3. Orders Stadtwerke Leipzig GmbH to pay, in addition to bearing its own costs, those incurred by the European Commission, E.ON SE and RWE AG in Case C‑465/23 P. 4. Orders TEAG Thüringer Energie AG to pay, in addition to bearing its own costs, those incurred by the European Commission, E.ON SE and RWE AG in Case C‑467/23 P. 5. Orders EnergieVerbund Dresden GmbH to pay, in addition to bearing its own costs, those incurred by the European Commission, E.ON SE and RWE AG in Case C‑468/23 P. 6. Orders GGEW, Gruppen-Gas- und Elektrizitätswerk Bergstraße AG to pay, in addition to bearing its own costs, those incurred by the European Commission, E.ON SE and RWE AG in Case C‑470/23 P. 7. Orders the Federal Republic of Germany to bear its own costs incurred in Cases C‑464/23 P, C‑465/23 P, C‑467/23 P, C‑468/23 P and C‑470/23 P.