JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber)
7 May 2009 (*)
(Competition – Concentrations – Markets for the purchase of live pigs or sows for slaughter – Decision declaring the concentration compatible with the common market – Definition of the relevant geographic market – Duty of care – Duty to state reasons)
In Case T‑151/05,
Nederlandse Vakbond Varkenshouders (NVV), established in Lunteren (Netherlands),
Marius Schep, residing in Lopik (Netherlands),
Nederlandse Bond van Handelaren in Vee (NBHV), established in The Hague (Netherlands),
represented initially by J. Kneppelhout and M. van der Kaden, and subsequently by J. Kneppelhout, lawyers,
applicants,
v
Commission of the European Communities, represented initially by A. Whelan and S. Noë, and subsequently by A. Bouquet and S. Noë, acting as Agents,
defendant,
supported by
Sovion NV, established in Best (Netherlands), represented by J. de Pree and W. Geursen, lawyers,
intervener,
ACTION for annulment of the Commission decision of 21 December 2004 declaring a concentration compatible with the common market and with the EEA Agreement (Case No COMP/M.3605 – Sovion/HMG) (OJ 2005 C 28, p. 2)
THE COURT OF FIRST INSTANCE
OF THE EUROPEAN COMMUNITIES (Third Chamber),
composed of J. Azizi, President, E. Cremona (Rapporteur) and S. Frimodt Nielsen, Judges,
Registrar: N. Rosner, Administrator,
having regard to the written procedure and further to the hearing on 22 May 2008,
gives the following
Judgment
Legal context
1 Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (OJ 2004 L 24, p. 1) provides for a system for the control by the Commission of concentrations with a Community dimension, as defined in Articles 1 and 3 of that regulation. Such concentrations are to be notified to the Commission prior to their implementation (Article 4 of Regulation No 139/2004). The Commission is to examine whether they are compatible with the common market (Article 2 of Regulation No 139/2004).
2 Article 2 of Regulation No 139/2004 provides as follows:
‘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.
…
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.
…’
3 The procedure for the control of concentrations takes place in two phases. The first phase, during which a preliminary examination of the intended concentration is carried out, ends with a decision under Article 6 of Regulation No 139/2204.
4 Article 6 of Regulation No 139/2004 provides as follows:
‘1. The Commission shall examine the notification as soon as it is received.
(a) Where it concludes that the concentration notified does not fall within the scope of this Regulation, it shall record that finding by means of a decision.
(b) Where it finds that the concentration notified, although falling within the scope of this Regulation, does not raise serious doubts as to its compatibility with the common market, it shall decide not to oppose it and shall declare that it is compatible with the common market.
…
(c) … where the Commission finds that the concentration notified falls within the scope of this Regulation and raises serious doubts as to its compatibility with the common market, it shall decide to initiate proceedings. …
…
3. The Commission may revoke the decision it took pursuant to paragraph 1(a) or (b) where:
(a) the decision is based on incorrect information for which one of the undertakings is responsible or where it has been obtained by deceit,
…’
5 It is only if the preliminary examination carried out during the first phase raises serious doubts as to the compatibility of the concentration with the common market that a detailed examination (second phase) is undertaken by the Commission under Article 6(1)(c) of Regulation No 139/2004.
6 The decision-making powers of the Commission with regard to the detailed examination procedure are set out in Article 8 of Regulation No 139/2004, which provides that:
‘1. Where the Commission finds that a notified concentration fulfils the criterion laid down in Article 2(2) …, it shall issue a decision declaring the concentration compatible with the common market.
…
2. Where the Commission finds that, following modification by the undertakings concerned, a notified concentration fulfils the criterion laid down in Article 2(2) …, it shall issue a decision declaring the concentration compatible with the common market.
…
3. Where the Commission finds that a concentration fulfils the criterion defined in Article 2(3) …, it shall issue a decision declaring that the concentration is incompatible with the common market.
…
6. The Commission may revoke the decision it has taken pursuant to paragraphs 1 or 2 where:
(a) the declaration of compatibility is based on incorrect information for which one of the undertakings is responsible or where it has been obtained by deceit …’
7 Article 14(1) of Regulation No 139/2004 provides as follows:
‘The Commission may by decision impose on … undertakings or associations of undertakings, fines not exceeding 1% of the aggregate turnover of the undertaking or association of undertakings concerned … where, intentionally or negligently:
(a) they supply incorrect or misleading information in a submission, certification, notification or supplement thereto …;
…’
8 Article 18(4) of Regulation No 139/2004 provides that ‘[i]n so far as the Commission or the competent authorities of the Member States deem it necessary, they may also hear other natural or legal persons’ and that ‘[n]atural or legal persons showing a sufficient interest … shall be entitled, upon application, to be heard’.
9 According to recital 5 in the preamble to Commission Regulation (EC) No 802/2004 of 7 April 2004 implementing Regulation No 139/2004 (OJ 2004 L 133, p. 1), ‘[i]t is for the notifying parties to make a full and honest disclosure to the Commission of the facts and circumstances which are relevant for taking a decision on the notified concentration’. Article 4 of Regulation No 802/2004 provides in that regard:
‘1. Notifications shall contain the information, including documents, requested in the applicable forms set out in the Annexes. The information shall be correct and complete.
…’
10 Article 6(2) of Regulation No 802/2004 provides as follows:
‘… Article 4 … of this Regulation shall apply mutatis mutandis to supplements to notifications …’
11 Article 16 of Regulation No 802/2004, entitled ‘Hearing of third persons’, provides:
‘1. If third persons apply in writing to be heard pursuant to Article 18(4), second sentence, of Regulation … No 139/2004, the Commission shall inform them in writing of the nature and subject-matter of the procedure and shall set a time-limit within which they may make known their views.
2. The third persons referred to in paragraph 1 shall make known their views in writing within the time-limit set. The Commission may, where appropriate, afford such third parties who have so requested in their written comments the opportunity to participate in a formal hearing. It may also in other cases afford such third parties the opportunity of expressing their views orally.
3. The Commission may likewise invite any other natural or legal person to express its views, in writing as well as orally, including at a formal oral hearing.’
Background to the dispute
I – Parties to the proceedings and to the concentration
12 The present action was brought jointly by Nederlandse Vakbond Varkenshouders (NVV), Marius Schep and Nederlandse Bond van Handelaren in Vee (NBHV) (collectively, ‘the applicants’).
13 NVV is a Netherlands trade union which was formed in order to represent and defend the interests of pig farmers. It has approximately 3 000 members and represents approximately 50% of the pig farms in the Netherlands.
14 Mr Schep is a pig farmer and a member of NVV.
15 NBHV is an association which represents and defends the interests of livestock dealers, including those who deal in pigs. Its members are provincial associations of livestock dealers. It represents approximately 70% of the pig dealers registered in the Netherlands.
16 Sovion NV is a Netherlands undertaking whose business is the slaughtering of cattle and pigs; the production, processing and sale of meat products; and the processing of by-products of animal origin.
17 Hendrix Meat Group (HMG) is an undertaking operating mainly in the Netherlands which is also engaged in the pig-slaughtering sector and in the production, processing and sale of meat.
II – Administrative procedure
18 On 18 November 2004, the Commission received notification under Article 4(1) of Regulation No 139/2004 of a proposed concentration (‘the concentration’) indicating Sovion’s intention of acquiring exclusive control of the whole of HMG (collectively, ‘the parties to the concentration’).
19 On 24 November 2004, the Commission sent a detailed questionnaire to the market operators concerned (competitors, purchasers, suppliers, and associations in the sector) in a number of European countries in order to determine the competitive effects of the concentration.
20 On 25 November 2004, NVV received the questionnaire in English. At NVV’s express request, the same questionnaire was sent to it in Dutch on 26 November 2004.
21 By a notice published in the Official Journal of the European Union of 26 November 2004, the Commission called on interested third parties to submit their observations on the concentration within 10 days.
22 By letter of 30 November 2004, NBHV expressed its reservations concerning the concentration.
23 On 2 December 2004, in reply to the questionnaire sent to it by the Commission, NVV pointed out that a decision declaring the concentration compatible with the common market would lead to Sovion acquiring a dominant position on the relevant geographic market, limited to the territory of the Netherlands.
24 On 10 December 2004, the Commission met with NVV and NBHV, which once again expressed their reservations about the concentration. Later that day, the Commission sent the representatives of the parties to the concentration questions concerning the points discussed at the meeting with NVV and NBHV.
25 On 16 December 2004, NBHV sent a letter to the Commission containing a summary of its position and its objections to the concentration.
26 By letters of 21 December 2004, NVV and NBHV disputed the content of one of the documents sent to the Commission by the parties to the concentration in the course of the administrative procedure, namely a statement by Mr S. B.M.J. (‘Mr J.’), Secretary-General of the Productschappen Vee, Vlees en Eieren (public law bodies responsible for the market in livestock, meat and eggs; ‘the PVVE’).
27 By decision of 21 December 2004 declaring a concentration to be compatible with the common market (Case No COMP/M.3605 – Sovion/HMG) (OJ 2005 C 28, p. 2; ‘the contested decision’), adopted pursuant to Article 6(1)(b) of Regulation No 139/2004, the Commission authorised the concentration without opening the second phase of the procedure.
Procedure and forms of order sought
28 By application lodged at the Registry of the Court of First Instance on 14 April 2005, the applicants brought the present action.
29 By letter of 13 July 2005, the applicants requested the Court of First Instance, pursuant to Article 64(3)(d) of its Rules of Procedure, to order the Commission, by way of measures of organisation of procedure, to produce all documents and papers concerning the present case and to send a copy to them.
30 On 5 August 2005, the Commission lodged its defence and, by separate document, submitted its observations on the application for measures of organisation of procedure.
31 By document lodged at the Registry of the Court of First Instance on 30 August 2005, Sovion sought leave to intervene in the present proceedings in support of the forms of order sought by the Commission.
32 By order of 13 October 2005, the President of the Third Chamber of the Court of First Instance granted Sovion leave to intervene and, on 31 January 2006, Sovion lodged its statement in intervention. The Commission and the applicants lodged their observations on the statement in intervention on 30 March 2006 and 8 May 2006 respectively.
33 By fax of 10 May 2006, the Commission pointed out that the applicants’ observations on the statement in intervention were not limited to the content of that statement but also concerned the Commission’s rejoinder. Accordingly, the Commission asked the Court either not to place the observations concerning the rejoinder in the case-file or to permit the Commission to comment in writing on those observations.
34 By letter from the Registry of the Court of First Instance of 9 June 2006, and subject to the admissibility of the points at issue in the observations concerning the rejoinder, the Commission was called upon to submit its observations in writing.
35 The lodging of those observations by the Commission on 30 June 2006 brought the written procedure to an end.
36 By measure of organisation of procedure notified on 1 April 2008, the Court asked the Commission to produce a list of the bodies to which the detailed questionnaire of 24 November 2004 had been sent, a list of the bodies which had replied to the questionnaire and a copy of all the answers to the questions in point 8 thereof. On 22 April 2008, the Commission submitted the documents requested to the Court.
37 The parties presented oral argument and replied to questions from the Court at the hearing on 22 May 2008. The documents produced at the hearing by the intervener were not placed in the file.
38 The applicants claim that the Court should:
– annul the contested decision;
– order the Commission to pay the costs.
39 The Commission and the intervener contend that the Court should:
– declare the action inadmissible with regard to Mr Schep and NBHV;
– dismiss the action with regard to NVV;
– order the applicants to pay the costs.
Law
I – Admissibility
A – Arguments of the parties
40 The Commission raises two pleas of inadmissibility alleging, respectively, that Mr Schep lacks locus standi and that NBHV brought the action out of time. However, as a preliminary point, the Commission considers the question whether, in cases where an action is brought by a number of applicants – such as the present case – and one of those applicants is entitled to bring proceedings, it is still necessary to consider the locus standi of the other applicants.
41 The Commission contends that, where an action is brought by a number of parties, it can be declared inadmissible so far as concerns one of those parties (Case T‑131/99 Shaw and Falla v Commission [2002] ECR II‑2023, paragraph 12). However, the Commission acknowledges that, in Case T‑374/00 Verband der freien Rohrwerke and Others v Commission [2003] ECR II‑2275, in which an action had been brought by a number of applicants against a Commission decision adopted pursuant to the mergers regulation, the Court of First Instance held, after finding that the decision was of direct and individual concern to one of the applicants, that there was no need to consider whether the other applicants were entitled to bring proceedings (paragraph 57).
42 However, according to the Commission, even if NVV’s action is probably admissible in the present case, it should be established that each of the other applicants has locus standi. In support of that position, the Commission relies, first, on the inevitably subjective nature of the second plea in law, which alleges that the applicants were unable to set out their views sufficiently during the administrative procedure; secondly, on the fact that an assessment of the locus standi of each of the applicants would enable the Court to make an appropriate order as to costs; and, thirdly, on the need to avoid the possibility that, if an appeal were to be brought by one of the applicants which lacked locus standi, the Commission would be unable to raise its lack of locus standi for the first time.
43 The applicants reply that there is no need to establish locus standi individually for each of them and that, in any event, each and every one of the applicants has locus standi to bring the present action.
B – Findings of the Court
44 It should be noted at the outset that NVV’s locus standi in the present action is not disputed. As the Commission acknowledges in its written pleadings, inasmuch as NVV represents undertakings which supply live pigs for slaughter to the parties to the concentration and inasmuch as it took an active part in the administrative procedure, it is both directly and individually concerned by the contested decision. There is thus no doubt as to the admissibility of its action.
45 According to settled case-law, where one and the same action brought by a number of applicants is admissible with regard to one of those applicants, there is no need to consider whether the other applicants are entitled to bring proceedings (see, to that effect, Case C‑313/90 CIRFS and Others v Commission [1993] ECR I‑1125, paragraph 31; Verband der freien Rohrwerke and Others v Commission, paragraph 41 above, paragraph 57; and Case T‑282/06 Sun Chemical Group and Others v Commission [2007] ECR II‑2149, paragraph 49 et seq.).
46 That case-law is based on considerations of economy of procedure and on the fact that, generally speaking, where one and the same action is brought by a number of applicants, even supposing that one or other of them lacks locus standi, the Court must still consider, in their entirety, the pleas in law and arguments put forward (see, to that effect, Sun Chemical Group and Others v Commission, paragraph 45 above, paragraphs 51 and 52).
47 Although the Court has admittedly, in some cases, distinguished between applicants as regards the admissibility of an action (see, to that effect, Shaw and Falla v Commission, paragraph 41 above, paragraph 12, and the order in Joined Cases T‑228/00, T‑229/00, T‑242/00, T‑243/00, T‑245/00 to T‑248/00, T‑250/00, T‑252/00, T‑256/00 to T‑259/00, T‑265/00, T‑267/00, T‑268/00, T‑271/00, T‑274/00 to T‑276/00, T‑281/00, T‑287/00 and T‑296/00 Gruppo ormeggiatori del porto di Venezia and Others v Commission [2005] ECR II‑787, paragraph 38), those distinctions were based – as was the case-law cited above in paragraph 45 – on considerations of economy of procedure (Sun Chemical Group and Others v Commission, paragraph 45 above, paragraph 51).
48 As it is, in the present case, if the admissibility of the action were to be examined separately in the case of each applicant, that would run counter to considerations of economy of procedure. It should be pointed out that the action brought jointly by NVV, Mr Schep and NBHV does not contain pleas in law or arguments which relate exclusively to only one of those parties so that, if the action were to be declared inadmissible with regard to one of the applicants, it would be possible that one or more of the pleas in law or arguments could not be considered. Accordingly, since the action is admissible with regard to NVV, the Court would in any event have to consider all the pleas and arguments raised in the present case, even if the action were to be declared inadmissible with regard to Mr Schep and NBHV. For those reasons, there is no need to consider the admissibility of the action with regard to NBHV or Mr Schep.
II – Substance
49 In support of their action, the applicants put forward two pleas in law, the first alleging infringement of Articles 2, 6 and 8 of Regulation No 139/2004 and the second alleging breach by the Commission of its duty to state reasons (Article 253 EC) and its duty of care.
A – The first plea in law, alleging infringement of Articles 2, 6 and 8 of Regulation No 139/2004
50 The first plea in law, alleging infringement of Articles 2, 6 and 8 of Regulation No 139/2004, is divided into four branches, of which the first and the fourth must, according to the applicants themselves, be considered together. By the second and third branches, the applicants dispute the definition of the relevant geographic markets adopted in the contested decision to the effect that the geographical scope of the two markets for the products at issue – the market for the purchase of live pigs for slaughter and the market for the purchase of live sows for slaughter – covers the territory lying within a radius of 150 km around the three main pig-breeding areas in the Netherlands (Twente, Achterhoek and North Brabant), with the centre of the three circles being the three cities located at the heart of those three regions, Enschede, Doetinchem and Eindhoven, respectively (recitals 25 and 44 of the contested decision). By the first and fourth branches, the applicants claim that, because of that incorrect definition of the relevant geographic markets, the Commission carried out an incorrect competitive assessment in the contested decision which led it to conclude, erroneously, that there was no dominant position and that the concentration was compatible with the common market.
51 It should first be pointed out that, with regard to the application to the present case of the Community rules on the control of concentrations, a proper definition of the relevant market is a necessary precondition for the assessment of the effects of the concentration on competition (see, to that effect, Joined Cases C‑68/94 and C‑30/95 France and Others v Commission [1998] ECR I‑1375 (‘Kali & Salz’), paragraph 143, and Case T‑342/99 Airtours v Commission [2002] ECR II‑2585, paragraph 19).
52 As follows both from Article 9(7) of Regulation No 139/2004 and from point 8 of the Commission notice on the definition of relevant market for the purposes of Community competition law (OJ 1997 C 372, p. 5; ‘the Relevant Market Notice’), the relevant geographic market comprises the area in which the undertakings concerned are involved in the supply of the products or services in question; in which the conditions of competition are sufficiently homogeneous; and which can be distinguished from neighbouring areas because the conditions of competition are appreciably different in those areas. For the purposes of defining the geographic market, account must be taken of a number of factors, such as the nature and characteristics of the products or services concerned, the existence of entry barriers, consumer preferences, the existence, in the area concerned as compared with neighbouring areas, of appreciable differences in the market share of undertakings, or price differences (Joined Cases T‑346/02 and T‑347/02 Cableuropa and Others v Commission [2003] ECR II‑4251, paragraph 115).
53 According to settled case-law, the basic rules on Community control of concentrations, and, in particular, those concerning the assessment of concentrations such as those laid down in Article 2 of Regulation No 139/2004, confer on the Commission a measure of discretion, especially for assessments of an economic nature. Consequently, review by the Community 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 (Kali & Salz, paragraph 51 above, paragraphs 223 and 224; Case C‑12/03 P Commission v Tetra Laval [2005] ECR I‑987, paragraph 38; Case T‑102/96 Gencor v Commission [1999] ECR II‑753, paragraphs 164 and 165; Airtours v Commission, paragraph 51 above, paragraph 64; and Case T‑210/01 General Electric v Commission [2005] ECR II‑5575, paragraph 60). In particular, 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 Community judicature (see, to that effect, Case T‑201/04 Microsoft v Commission [2007] ECR II‑3601, paragraph 482).
54 However, although the Commission has a measure of discretion with regard to economic matters, that does not mean that the Community judicature must refrain from reviewing the Commission’s interpretation of information of an economic nature. Not only must the Community judicature, inter alia, establish whether the evidence relied on is factually accurate, reliable and consistent, it must also determine whether that evidence covers all the information which must be taken into account in order to assess a complex situation and whether it is capable of substantiating the conclusions drawn from it (Commission v Tetra Laval, paragraph 53 above, paragraph 39).
55 The arguments put forward by the applicants must therefore be examined in the light of those considerations.
1. The lack of clarity in the first plea in law
a) Arguments of the parties
56 As a preliminary point, the Commission, supported by the intervener, contends that this plea lacks clarity.
57 The Commission argues first that, in the application, the applicants refer in terms which are too general to ‘their exchanges of correspondence with [it]’ and to facts and arguments put forward therein (Annexes A.6 to A.24) and also to ‘supplementary documents’ (Annexes A.26 to A.39) intended to ‘explain further’ the position already put forward in the course of the administrative procedure. Those references do not comply with Article 44(1)(c) of the Rules of Procedure, which requires the application to state the subject-matter of the proceedings and a summary of the pleas in law on which the application is based. The Court should not therefore take account of them.
58 Secondly, the Commission contends that Annexes A.26 to A.38 and Annexes C.4 to C.7 should also be excluded, because they were not produced in the course of the administrative procedure. In the Commission’s view, it follows from the case-law that the legality of a decision must be assessed on the basis of the information available to it at the time when the measure was adopted (Joined Cases 15/76 and 16/76 France v Commission [1979] ECR 321, paragraph 7, and Joined Cases T‑79/95 and T‑80/95 SNCF and British Railways v Commission [1996] ECR II‑1491, paragraph 48) and that an applicant cannot therefore rely, before the Community judicature, on facts that were not put before the Commission in the course of the administrative procedure (Joined Cases C‑278/92 to C‑280/92 Spain v Commission [1994] ECR I‑4103, paragraph 31, and Case C‑382/99 Netherlands v Commission [2002] ECR I‑5163, paragraphs 49 and 76).
59 The applicants reply that, in the context of their action, they did not merely provide a summary but stated in a coherent and comprehensible manner the substantive elements of fact and of law relied on in support thereof. In addition, they argue that the Commission was aware of the points of view which they had expressed in the course of the administrative procedure. The fact that the Commission was unaware of certain documents at the time when the contested decision was adopted changes nothing in that regard. The Court is therefore required to consider all the annexes.
b) Findings of the Court
60 With regard, first, to the references to the annexes, it should be borne in mind that, pursuant to Article 21 of the Statute of the Court of Justice and Article 44(1)(c) of the Rules of Procedure of the Court of First Instance, the application is to state the subject-matter of the proceedings and a summary of the pleas in law on which the application is based. According to settled case-law, if an action is to be admissible, the essential facts and law on which it is based must be apparent from the text of the application itself, even if only stated briefly, provided that the statement is coherent and comprehensible. Although specific points in the text of the application can be supported and supplemented by references to specific passages in the documents attached, a general reference to other documents cannot, even though they are appended to the application, compensate for the lack of essential elements of the legal arguments, which, under the relevant provisions referred to above, must be included in the application (Joined Cases C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P Dansk Rørindustri and Others v Commission [2005] ECR I‑5425, paragraphs 93 to 100; see also, with regard to concentrations, Case T‑87/05 EDP v Commission [2005] ECR II‑3745, paragraph 155, and Case T‑209/01 Honeywell v Commission [2005] ECR II‑5527, paragraphs 56 and 57, and the case-law cited therein).
61 Moreover, it is not for the Court to seek and identify, in the annexes, the pleas and arguments on which it may consider the action to be based, since the annexes have a purely evidential and ancillary purpose (Dansk Rørindustri and Others v Commission, paragraph 97, and Honeywell v Commission, paragraph 57, both cited in paragraph 60 above). The purely evidential and ancillary purpose of the annexes means that, where an annex contains elements of law on which certain pleas raised in the application are based, those elements must be set out in the actual body of the document to which that annex is attached, or, at the very least, be sufficiently identified in that document (Dansk Rørindustri and Others v Commission, paragraph 60 above, paragraph 99).
62 In the light of the case-law referred to above, references to annexes will be taken into consideration only in so far as, first, they support or supplement pleas or arguments expressly set out by the applicants in the body of their pleadings and, secondly, they enable the Court to determine precisely the matters on which the applicants base their complaints concerning the concentration or the arguments that supplement the pleas put forward in their pleadings (see, to that effect, Microsoft v Commission, paragraph 53 above, paragraph 99).
63 With regard, secondly, to annexes which are not produced in the course of the administrative procedure, the Court considers that the Commission cannot, with regard to all of them and in a general manner, rely on the case-law cited in paragraph 58 above. It should be pointed out that, in so far as the production of an annex is not an attempt to alter the legal and factual framework previously submitted to the Commission for the purposes of the adoption of the contested decision, but contributes to a line of argument in the simple exercise of the rights of the defence, such an annex must be regarded as admissible (see, to that effect, EDP v Commission, paragraph 60 above, paragraph 158).
64 In the light of those considerations, therefore, the Court will take account, where appropriate, of the annexes which were not produced in the course of the administrative procedure.
2. Infringement of Article 8 of Regulation No 139/2004
65 The Commission next contends that the first plea in law is manifestly unfounded inasmuch as it alleges infringement of Article 8 of Regulation No 139/2004, whereas the contested decision was adopted exclusively on the basis of Article 6(1)(b) of Regulation No 139/2004. The applicants reply that the reference to Article 8 of Regulation No 139/2004 is justified inasmuch as the Commission should have initiated the second phase of the procedure leading to the adoption of a decision under Article 8(3) of Regulation No 139/2004.
66 It should be borne in mind in that regard, as was mentioned in paragraph 3 et seq. above, that the procedure for Community control of concentrations of undertakings, as conceived in Regulation No 139/2004, consists of two phases. The first phase of the procedure ends with a decision adopted on the basis of points (a), (b) or (c) respectively of Article 6(1) of Regulation No 139/2004, depending on the conclusions which the Commission has reached at the end of that phase. It is only if the Commission finds that the concentration which has been notified is covered by that regulation and raises serious doubts as to its compatibility with the common market that the Commission initiates the second phase of the procedure, which, pursuant to Article 6(1)(c) of Regulation No 139/2004, ‘shall be closed by means of a decision as provided for in Article 8(1) to (4), unless the undertakings concerned have demonstrated to the satisfaction of the Commission that they have abandoned the concentration’.
67 Clearly, therefore, in the scheme of Regulation No 139/2004, the legal basis for the decisions adopted by the Commission in the context of the first phase of the procedure is Article 6 of Regulation No 139/2004, whereas the legal basis for decisions adopted in the context of the second phase of the procedure is Article 8 of that regulation, and both of those articles must be interpreted in the light of the criteria set out in Article 2 thereof.
68 In the present case, since the Commission concluded, at the end of the first phase, that the concentration did not raise serious doubts as to its compatibility with the common market, it based its decision on Article 6(1)(b) of Regulation No 139/2004, as was correct. In fact, even if the Commission had reached the opposite conclusion and decided to initiate the second phase of the procedure, it would still have had to adopt a decision based on Article 6 of the regulation – specifically, on Article 6(1)(c) thereof – and not on Article 8. It could not, in any circumstances, have adopted a decision under Article 8 of Regulation No 139/2004 at the end of the first phase of the procedure. Consequently, reference to that provision is irrelevant in the present context. For that reason, it must be concluded that the first plea in law is manifestly unfounded in so far as it alleges infringement of Article 8 of Regulation No 139/2004.
3. The second branch of the first plea in law, alleging the inclusion of sows in the definition of the relevant geographic market for the purchase of live pigs for slaughter
a) Arguments of the parties
69 By the second branch of the first plea in law, the applicants maintain first that when, in the contested decision, the Commission defined the markets for the products at issue, it distinguished – correctly – between the market in live pigs for slaughter and the market in live sows for slaughter. However, it made a manifest error of assessment in so far as it improperly took account of sows in defining the geographic market for the purchase of pigs and in the assessment of the competitive effects of the concentration on that market.
70 In the applicants’ view, after determining the markets for the relevant products, the Commission should have examined the relevant geographic market separately with regard to each product market. It should have examined separately the geographic market for the purchase of live sows for slaughter and the geographic market for the purchase of live pigs for slaughter, since the two products are not interchangeable. In support of their claim, the applicants refer to recitals 44 and 53 of the contested decision and to footnote 6 on page 4 thereof.
71 The Commission contends that the present complaint is based on an erroneous interpretation of the contested decision and should therefore be rejected.
b) Findings of the Court
72 The relevant parts of the contested decision must first be assessed. In recitals 13 to 16 of the decision, concerning the definition of the product markets, the Commission stated that, following a market investigation, and contrary to the opinion of the parties to the concentration, the purchase of sows for slaughter and the purchase of pigs for slaughter constituted two different product markets.
73 With regard to the definition of the geographic market, the Commission states that ‘[f]or the purpose of the geographic market definition, pigs and sows will be considered together, as the same analysis applies for both product markets’ (see footnote 6 on page 4 of the contested decision). On the basis of that consideration, the Commission sets out, in recitals 17 to 43 of the contested decision, its assessment concerning the definition of the geographic market with regard, exclusively, to the market for the purchase of pigs. At the end of that assessment, the Commission concludes, in recital 44 of the contested decision, referring expressly to footnote 6, that the geographic market definition adopted for the purchase of pigs also applies for the market for the purchase of sows.
74 By contrast, with regard to the effects of the concentration on competition, the Commission carries out a separate assessment for each market, distinguishing the competitive assessment of the market for the purchase of pigs (recitals 46 to 51 of the contested decision) from that of the market for the purchase of sows (recitals 52 and 53 of the contested decision). At the end of that assessment, it concludes that the concentration is unlikely to cause competition problems on either of the two markets (recital 54 of the contested decision).
75 An analysis of the relevant parts of the contested decision shows that the Commission did not confuse the market for the purchase of pigs and the market for the purchase of sows and it did not consider the latter market to be a subset of the market for the purchase of pigs, whether in the context of the definition of the geographic market or in the context of the assessment of the competitive effects of the concentration.
76 With regard to the definition of the geographic market, the Commission – on the basis of its view that the assessment could be the same for the two product markets – expressly set out the findings relating to the geographical scope of the market for the purchase of pigs and then applied them to the market for the purchase of sows. It should be pointed out that the applicants have in no way shown that, by so acting, the Commission made a manifest error of assessment. Nor have they explained how the Commission took account of the purchase of sows in the context of defining the geographic market for the purchase of pigs, or why that would have vitiated its assessment with regard to the definition of those geographic markets.
77 With regard to the alleged confusion on the part of the Commission of the two product markets at issue in its assessment of the competitive effects of the concentration, it is very clear from the contested decision that the Commission carried out two completely separate assessments for the two markets at issue. The applicants cannot therefore complain that the Commission confused the two markets. Admittedly, in recital 53 of the contested decision, the sentence which states that ‘[t]he competitive assessment for pigs thus applies a fortiori for sows’ could have been better expressed. However, it is clear from the context in which that sentence is placed that the Commission considered that, given the very small market shares held by the parties to the concentration in the markets at issue – less than 20% – and in view of the fact that the concentration was not likely to impede effective competition (recital 32 in the preamble to Regulation No 139/2004), it was not necessary to make a competitive assessment such as that carried out in recitals 48 to 51 of the contested decision with regard to the market for the purchase of pigs.
78 In the light of the foregoing, the second branch of the first plea in law must be rejected.
4. The third branch of the first plea in law, alleging failure to take account of factors essential to the definition of the geographic market, or basing erroneous conclusions on such factors
79 The applicants complain that the Commission made a number of manifest errors of assessment in defining the relevant geographic market, as described in paragraph 50 above, in so far as it did not take account of some of the factors which they put forward in the course of the administrative procedure or, at the very least, in so far as it drew erroneous conclusions from such factors. In the applicants’ view, those factors were essential for the definition of the geographic market and demonstrated that the product markets at issue were nationwide, covering the territory of the Netherlands. Those factors, which will be considered in detail later, are: (i) the fact that German and Dutch pigs are not interchangeable; (ii) the lack of any connection between, on the one hand, fluctuations in the difference in the purchase price of pigs as between Germany and the Netherlands and, on the other, exports between those two countries; (iii) the consequences of epizootic outbreaks of disease, which restrict the market to national level; (iv) the existence of additional veterinary requirements and other hindrances to exports; (v) transport distances which are generally shorter than the 150 km radius taken into account by the Commission; (vi) the existence of political pressures; and (vii) the previous decision-making practice of the Nederlandse Mededingingsautoriteit (the Netherlands competition authority).
80 In that connection, it should be pointed out that, according to settled case-law, the Court reviews assessments by the Commission concerning the definition of relevant markets by reference to a test of whether there was a manifest error of assessment (Cableuropa and Others v Commission, paragraph 52 above, paragraph 119; see also, to that effect, Airtours v Commission, paragraph 51 above, paragraphs 26 and 32). Moreover, from an economic point of view, the most immediate and effective disciplinary force for the purposes of defining the relevant market is demand substitution (Case T‑177/04 easyJet v Commission [2006] ECR II‑1931, paragraph 99, and point 13 of the Relevant Market Notice).
81 Before analysing the applicants’ complaints concerning each of the factors listed in paragraph 79 above, consideration must be given to the Commission’s argument that, in so far as the applicants refer in their written pleadings solely to the geographic market for the purchase of pigs, their complaints concern only that market and not the market for the purchase of sows. The Court would point out that the applicants’ complaints refer to the analysis, relating to the definition of the geographic market adopted in the contested decision, which is set out above in the context of the second branch of the present plea in law and which was applied by the Commission to the two product markets at issue. Nothing in the applicants’ pleadings indicates that they intended to limit their complaints to one of the two product markets. The Commission’s argument on that point must therefore be rejected.
a) The fact that pigs intended for the German market and pigs intended for the Dutch market are not interchangeable
Arguments of the parties
82 In the applicants’ view, the Commission made an error inasmuch as it did not take into consideration, when defining the geographic market, the fact that pigs for slaughter intended for the German market and those intended for the Dutch market are not interchangeable. That is because of the difference in weight between Dutch pigs and German pigs and differences in the type or breed of pigs. Because of those differences, German slaughterhouses prefer German pigs to those coming from other countries. Thus, a Dutch farmer cannot substitute a German slaughterhouse for a Dutch slaughterhouse and, in fact, only a very small proportion of Dutch pigs are imported by German slaughterhouses.
83 However, to obtain the best price difference for Dutch pigs sold in Germany, the pigs must correspond entirely to the requirements of the German slaughterhouses and must therefore be bred, by means of genetic selection, specifically to meet the requirements of the German market. If the pigs do not meet the requirements of the German market, the Dutch farmers obtain a financial advantage by selling their pigs on the German market only if the price difference between the Netherlands and Germany is above average. Dutch pigs are not therefore interchangeable with German pigs and are at most complementary to them. The specific and distinct characteristics of Dutch pigs are recognised in the articles appended to the application, in which it is stated that pigs for slaughter in Germany must possess precise characteristics, whereas the characteristics required for the Dutch market are different.
84 In addition, the applicants deny the relevance of the statements made by third persons on which the Commission based its assessment in the contested decision. First, the applicants question the reliability of those statements, ‘all made, without exception, by persons who are, directly or indirectly, in the sphere of influence of Sovion and/or HMG’. With regard, in particular, to Mr J.’s statement, the applicants argue that he drafted his memorandum in his own name and not to express the position of the PVVE, and that later he obviously regretted his statements, as is apparent from a newspaper article appended to the defence.
85 Secondly, the applicants argue that a number of those statements, in particular those appearing in Annexes B.4.(d), B.6.(a) and B.6.(b), do not support the Commission’s conclusions, but confirm rather the argument of the applicants that German slaughterhouses import Dutch pigs only to a very limited extent.
86 The Commission, supported by the intervener, disputes the applicants’ arguments. It contends, in particular, that only one of the statements, namely that made by Hypor BV, is from an undertaking connected with the parties to the concentration.
Findings of the Court
87 In recitals 31 and 32 of the contested decision, the Commission considered the alleged differences in weight between German and Dutch pigs, as well as their genetic differences. With regard to the difference in weight, it is apparent from the contested decision that, in the context of what the Commission calls the ‘supplementary investigation’ (recital 30 of the contested decision), the parties to the concentration argued that the only difference between pigs slaughtered in Germany and those slaughtered in the Netherlands was their weight, Dutch pigs being 2 kg lighter than German pigs, but that that did not hinder the exportation of Dutch pigs to the German market inasmuch as Dutch breeders had merely had to wait about two days for their pigs to reach the ideal weight for German slaughterhouses. That was confirmed by pig farmers and slaughterhouses. With regard to genetic differences, recital 32 of the contested decision states that the parties to the concentration stressed that there was no significant genetic difference between pigs slaughtered in the Netherlands and those slaughtered in Germany and that that has also been confirmed by third parties.
88 It should be noted that it is indeed apparent from the file that, in the course of the administrative procedure and as a result of arguments put forward by the applicants, the Commission expressly sought additional information with regard, specifically, to the differences between the type of pigs slaughtered in Germany and the type of pigs slaughtered in the Netherlands. The parties to the concentration argued that there was no difference between German pigs and Dutch pigs, that the average weight of pigs slaughtered in German and Dutch slaughterhouses was 93 kg and 90 kg or 91 kg respectively – that is to say, a minimal difference – and that, in any event, in so far as, at the end of the fattening period, a pig grows at the approximate rate of 750 g per day, a Dutch farmer had to wait only two or three days to be able to supply a pig at the ideal weight for a German slaughterhouse.
89 It is apparent from the file that, in a number of statements, third parties did indeed confirm the claims made by the parties to the concentration on these points. Of two German slaughterhouses, one stated that it made ‘no distinction between pigs for slaughter coming from the Netherlands or Germany’ and even that ‘lately, Dutch pigs [were] better adapted to its clientele’ (Annex B.6.(a)) and the other stated that ‘for [it], Dutch and German pigs [were] equivalent from the point of view of quality’ (Annex B.6.(b)). In addition, a Dutch pig dealer also stated that he did not impose ‘any additional requirement’ on pig farmers with regard to exports to Germany, explaining that they could ‘use the ordinary genetic breeds, ordinary fodder and ordinary breeding systems’ even if they were sometimes asked to ‘fatten their pigs by a few kilograms more’ (Annex B.4.(e)). Another Dutch pig dealer also confirmed that he exported pigs bred in the Netherlands to Germany without any additional requirement (Annex B.4.(d)). Finally, an association of Dutch undertakings stated that ‘[t]he ideal pig in the Netherlands [did] not seem to be very different from the ideal pig in Germany’, which is also confirmed by Mr J.’s statement that ‘the fact that Dutch and German piglets and pigs (for slaughter) are interchangeable can be explained principally by their genetic characteristics, which are largely equivalent’.
90 The applicants dispute both the independence of the third parties who made those statements and the Commission’s interpretation of their content, which, in their view, confirms their argument rather than that of the Commission.
91 The Court notes, first, that the applicants have in no way established the accuracy of their claim that the statements were made, almost without exception, by persons who are, directly or indirectly, in the sphere of influence of Sovion or HMG. With regard to four of those statements, in particular those contained in Annexes B.4.(b), B.4.(d), B.6.(a) and B.6.(b), the applicants merely state that ‘no comment’ needs to be made as to their origin. With regard to the statements made by the two Dutch associations of undertakings, set out in Annexes B.4.(a) and B.6.(c), the applicants claim that there are ‘overlapping interests’ with the parties to the concentration, without adducing any evidence in support of those claims. With regard to the statement contained in Annex B.4.(e), the applicants merely appended to the reply a press release which, at most, could show that there are commercial ties between the author of the statement and HMG which, moreover, date from after the approval of the concentration, since the document mentions the date of 13 June 2005. The only statement which was shown to have been made by an undertaking connected with the parties to the concentration is that made by Hypor BV. Although the applicants have adduced no evidence in that regard, the Commission admitted that the undertaking concerned belonged to the Nutreco group, of which HMG is also a member.
92 With regard, finally, to Mr J.’s statement, the Court notes that, since the memorandum was drafted on the PVVE’s headed paper and the PVVE never informed the Commission that Mr J. was acting in a personal capacity, the Commission had no reason to believe that the memorandum at issue had not been drawn up in the name of the PVVE. In addition, it is not apparent from the article submitted by the applicants that Mr J. had distanced himself from the content of the statement in question and considered it inaccurate.
93 Secondly, the Commission did not make an error of assessment in interpreting the content of the statements. It can be seen from paragraph 89 above that those statements entirely confirm the Commission’s conclusions. On the other hand, contrary to what the applicants claim, it is not at all clear from the statements made by the German slaughterhouses that ‘a very small [number] of their pigs come from the Netherlands’ or from the statements made by the Dutch pig dealers that ‘only a “very small” number of pigs are exported to Germany’.
94 It must therefore be concluded that the applicants have not established to the requisite legal standard that the Commission made a manifest error of assessment by not taking account, in defining the geographic market, of the fact that pigs for slaughter intended for the German market and those intended for the Dutch market were not interchangeable by virtue of purported genetic differences, as well as differences of weight, which hindered exports.
95 That conclusion is not weakened by the documents which the applicants appended to the application. It should be pointed out that it cannot be deduced from those documents either that pigs bred in Germany cannot be substituted for pigs bred in the Netherlands because of differences in weight or genetic differences, or that, for that reason, German slaughterhouses cannot constitute a competitive constraint for Dutch slaughterhouses. In addition, with regard, specifically, to Annexes A.34 and A.35, it should also be pointed out that the applicants merely refer, in very general terms, to the articles contained in those annexes. It must therefore be held that the factors put forward by the applicants do not call into question the assessment contained in the contested decision, which is based on the results of the investigation carried out by the Commission (see paragraph 60 et seq. above).
96 In the light of the foregoing, it must be concluded that the Commission did not make a manifest error of assessment in that regard.
b) Lack of any connection between fluctuations in the difference in the purchase price of pigs as between the Netherlands and Germany and the volume of exports between those two countries
Arguments of the parties
97 The applicants maintain that the differences in the purchase price of pigs in the Netherlands and Germany, even supposing that they are significant, do not cause an increase in exports of pigs from the Netherlands to Germany. In support of their argument, the applicants claim, first, that – as is apparent from the PVVE report entitled ‘Comparison of the prices of pigmeat in the Netherlands, Germany and Belgium’, which is appended to the application – for the purpose of making useful comparisons between the current prices in the Netherlands and Germany, some corrections must be made to the various prices offered at international level in order to take account of costs, the various supplements which are applied and differences in definitions.
98 Secondly, in the applicants’ view, certain data provided by the PVVE and appended to the reply, concerning weekly exports of pigs and piglets from the Netherlands to Germany in 2004 and the basic prices applied in each of the two Member States during the weeks concerned, also show that the connection between price differences and exports is very tenuous. The applicants refer in that regard to data concerning weeks 3 and 4, weeks 9 and 10 and weeks 49 and 50.
99 The Commission, supported by the intervener, disputes the applicants’ arguments.
Findings of the Court
100 The question whether there is, first, a connection between the price of pigs in Germany and the price of pigs in the Netherlands and, secondly, a connection between the fluctuations in the difference in those prices and exports between the two countries is raised in recitals 37 and 38 of the contested decision. According to the decision, although German prices for the purchase of live pigs are traditionally higher than Dutch prices, the two are closely connected inasmuch as they tend to move in parallel in the medium and long term. Also according to the decision, the market investigation confirmed the claims and the evidence submitted by the parties to the concentration that there is a direct relationship between fluctuations in the difference in the price of pigs as between the Netherlands and Germany and exports of pigs inasmuch as an increase (or a decrease) in the difference between those two prices causes an increase (or a decrease) in exports of pigs from the Netherlands to Germany.
101 The applicants do not deny either the existence of a price difference between Germany and the Netherlands or a connection between those two prices. What they deny is the existence of a connection between fluctuations in the difference in price as between the Netherlands and Germany and exports between those two countries. In their view, fluctuations in the difference between the purchase price of pigs as between the Netherlands and Germany, even if they are significant, do not cause an increase in exports of pigs from the Netherlands to Germany.
102 It should be observed, first, that it is apparent from the file that the parties to the concentration did indeed submit, in the course of the administrative procedure, data which showed a parallel between the behaviour of the purchase price of live pigs in Germany and in the Netherlands. The parties to the concentration also submitted data showing the existence of a parallel between an increase or a decrease in the price difference between Germany and the Netherlands, on the one hand, and an increase or a decrease in exports of pigs between the two countries, on the other.
103 Similarly, in the course of the administrative procedure, third parties confirmed the existence of such a connection. A Dutch pig dealer stated that ‘when the price of pigs [was] higher in Germany than in the Netherlands … the number of animals exported to Germany [increased]’ (Annex B.4.(e)). Referring to its purchases of Dutch pigs for slaughter, a German slaughterhouse stated that ‘if the price of pigs [was] lower in the Netherlands than in Germany, the number of Dutch pigs [increased]’ and that ‘[f]or purely economic reasons, it [was] therefore advantageous to buy Dutch pigs’ (Annex B.6.(b)). Mr J. also stated that ‘small differences in prices [caused] an increase in exports from the Netherlands’ (Annex B.5.(b)).
104 In addition, the applicants themselves admit that there is a connection between fluctuations in the difference in price and the volume of exports when they state, in the reply, that ‘it is only when the price difference between the Netherlands and Germany is greater than average that sale to a German slaughterhouse of pigs which do not meet 100% of German requirements becomes advantageous’ (see paragraph 83 above).
105 Moreover, even the data provided by the PVVE and appended to the reply by the applicants in support of their arguments demonstrate the existence, not the absence, of a direct connection between fluctuations in price differences and the volume of exports and, accordingly, support the Commission’s conclusions. Similarly, the weeks to which the applicants refer tend to prove the existence of such a connection inasmuch as in two cases out of the three mentioned by the applicants, an increase (weeks 9 and 10) or a decrease (weeks 49 and 50) in the price difference between Germany and the Netherlands caused, respectively, an increase and a decrease in exports. However, the fact that the parallel development of fluctuations in price differences and the volume of exports cannot be rigorously verified for all weeks does not, in itself, invalidate the Commission’s finding that such a direct connection exists between those two factors. At most, it shows that the connection is not completely linear.
106 It must therefore be concluded that the applicants have not shown that the Commission made a manifest error of assessment when it concluded that there was a connection between the difference in the price of pigs in Germany and the Netherlands and the volume of exports of pigs between the two countries. That finding is not weakened by the applicants’ argument that, in order to make useful comparisons between current prices in the Netherlands and Germany, corrections must be made to the various prices used at international level so as to take account of the various costs and supplements which are applied, as well as differences in definitions. The Court observes in that regard that it is sufficient to note that the applicants provide no explanation as to why the need to make those ‘corrections’ could cast doubt on the Commission’s finding that a connection exists between fluctuations in price differences as between the Netherlands and Germany and the volume of exports between the two countries.
107 In view of the foregoing, the Court must reject the applicants’ argument that the Commission made a manifest error of assessment when it considered, in defining the relevant geographic market, that there was a direct connection between fluctuations in the difference in the price of pigs as between the Netherlands and Germany and the volume of exports of pigs between the two countries.
c) Effects on exports of veterinary measures adopted as a result of epizootic outbreaks of disease
Arguments of the parties
108 The applicants claim that the Commission made a manifest error of assessment inasmuch as it did not take account of the fact that the veterinary measures adopted as a result of epizootic outbreaks of disease restricted markets to regional or national level. In the applicants’ view, the consequences of the veterinary measures adopted as a result of epizootic outbreaks of disease are felt throughout the national territory and affect trade with other countries, notwithstanding the fact that, as a rule, only exports from certain regions are prohibited. Since trade in pigs in the Netherlands is concentrated in three main regions specialised in the slaughter of pigs, an outbreak of an animal disease in one of those three regions causes it to be closed off immediately, preventing pig farmers in that region from transporting their animals to other regions. The entire national market is thereby affected.
109 With regard specifically to exports, the applicants point out that when an epizootic outbreak of disease occurs in part of the national territory, trade with other countries is usually suspended temporarily, which causes a great deal of damage to pig farmers who have oriented their production towards exports. That, according to the applicants, explains why pig farmers and pig dealers are reluctant to organise their production with a view to exports.
110 The Commission, supported by the intervener, disputes the applicants’ arguments.
Findings of the Court
111 As is apparent from recital 43 of the contested decision, the Commission took account of the effects of epizootic outbreaks of disease on exports and considered that, in so far as export data indicated that the suspension of exports as a result of animal diseases did not prevent large numbers of pigs being exported from the Netherlands to Germany and as the veterinary measures adopted at national level affect both trade within the Netherlands and its exports, the existence of such measures cannot be regarded as a determining factor for the purposes of defining the geographic market.
112 The Court would point out that analysis of the various data in the file shows that the suspension of exports as a result of epizootic outbreaks of disease generally produced effects for a limited period and that after each outbreak, exports rapidly returned to normal levels. In view of those findings, it is in no way established that the Commission’s conclusion that the temporary suspension or limitation of exports as a result of epizootic outbreaks of disease does not restrict the relevant market to national or regional level, and does not therefore constitute a determining fact for the purposes of defining the geographic market, is not vitiated by a manifest error of assessment.
113 Consequently, this complaint must also be rejected.
d) Existence of other barriers to exports
Arguments of the parties
114 In the application, the applicants claim that, because of financial or other hindrances, a distinction must also be made between the Dutch market and the German market. Among those obstacles, they identify a supplementary veterinary check carried out on Dutch pigs intended for sale in the German market and certain ‘additional costs’ connected with exports. In the reply, the applicants claim that those additional costs connected with exports were explained in detail by NVV in its reply to the questionnaire sent by the Commission in the course of the administrative procedure and state that those barriers concern, inter alia, the price of pork, farm output, competition on the European meat market, quality requirements for pigs, additional transport costs, export licences and the cost of blood tests (in relation to Aujeszky’s disease).
115 With regard, in particular, to the ‘barriers concerning the price of pork’, the applicants claim that it is apparent from NVV’s answer to the Commission’s questionnaire and from the PVVE report (see paragraph 97 above) that, after taking account of a whole series of correction factors, there is a difference of EUR 0.08 per kilogram between the price of pigs in Germany and the price of pigs in the Netherlands, which creates a barrier of EUR 7.20 per pig, since the dead weight of a slaughter pig is about 90 kg.
116 The Commission contends that, in the application, the applicants merely pointed, in connection with this argument, to the existence of a supplementary veterinary check for pigs intended for export to Germany. Along with the intervener, it therefore disputes the admissibility of references to other barriers to exports inasmuch as, in the first place, the existence of those barriers was raised out of time – that is to say, in the reply – and, secondly, apart from transport costs, they were also not set out in detail in the reply to the questionnaire to which the applicants refer. In any event, the Commission, supported by the intervener, disputes all the applicants’ substantive arguments.
Findings of the Court
117 The argument concerning the supplementary veterinary check that pigs intended for export to Germany must undergo should be examined first. The Commission states in that regard in recitals 33 and 34 of the contested decision that the parties to the concentration maintained – and it has been confirmed by a number of third parties – that all live pigs for slaughter have to be examined irrespective of where they are to be slaughtered, the only additional requirement related to export being the presence of a veterinarian at the farm or at the export collection point, which gives rise to an additional cost of approximately EUR 1 to EUR 1.25 per pig; moreover, that additional cost is offset by the traditionally higher purchase price in Germany.
118 The Court notes in that regard that the applicants have provided no evidence whatsoever, whether in their written pleadings or at the hearing, in support of their claim that pigs intended for export to Germany must undergo a supplementary veterinary check, different from the examination mentioned in the contested decision. This complaint must therefore be rejected.
119 With regard to the other alleged barriers to exports, it should be noted that they were actually mentioned only in the reply and that the application contains no other reference, whether general or specific, to NVV’s reply to the Commission’s questionnaire. However, it should be borne in mind that, although under Article 48(2) of the Rules of Procedure, new pleas in law may not be introduced in the course of the proceedings unless they are based on matters of law or of fact which have come to light in the course of the procedure, it is settled case-law that a submission or argument which may be regarded as amplifying a plea made previously, whether directly or by implication, in the application initiating proceedings, and which is closely connected therewith, must be declared admissible (see Case T‑252/97 Dürbeck v Commission [2000] ECR II‑3031, paragraph 39, and Cableuropa and Others v Commission, paragraph 52 above, paragraphs 109 and 111, and the case-law cited therein).
120 As it is, it should be pointed out that, in the application, the applicants complain at several points that the Commission failed to take account of facts which they had put forward in the course of the administrative procedure, referring – admittedly in general terms – to the arguments put forward in the statements submitted in the course of that procedure. It should also be pointed out that, in the application, the applicants mention ‘financial or other obstacles’ and ‘additional export costs’, which distinguish the Dutch market for the purchase of pigs for slaughter from the corresponding German market. Accordingly, the applicants’ statements in the reply may be regarded as amplifying an argument already put forward in the application. Consequently, in the light of the case-law cited in the preceding paragraph, they must be regarded as admissible (see, to that effect, Case T‑118/96 Thai Bicycle v Council [1998] ECR II‑2991, paragraphs 144 and 145).
121 However, the applicants’ arguments in that regard are unfounded.
122 With regard, first, to the alleged ‘barriers concerning the price of pork’, it should be pointed out that the principal purpose of the definition of the market – whether the product market or the geographic market – is to identify systematically the constraints which competition imposes on the undertakings in question and to determine whether there are real competitors, capable of affecting the conduct of the undertakings in question or of preventing them from acting independently of the pressure exercised by effective competition. The fundamental question for the purposes of defining the geographic market in the present case is therefore whether, if there were to be a small but sustainable reduction in the purchase price of pigs or sows in the areas concerned, the customers of the parties to the concentration and, in particular, the pig breeders, would switch to slaughterhouses located elsewhere (see paragraph 80 above and points 2 and 17 of the Relevant Market Notice).
123 However, a number of elements in the file support the Commission’s finding that not merely slaughterhouses located in the Netherlands but also some slaughterhouses located in Germany constitute competitive restraints likely to affect the conduct of the parties to the concentration (see paragraphs 102 to 104 above). Moreover, the data provided by the PVVE concerning exports of pigs from the Netherlands to Germany, appended to the reply by the applicants themselves (see paragraph 105 above), show that there has been a constant and not inconsiderable volume of exports between the two countries, even when the difference in the price of pigs as between Germany and the Netherlands was less than EUR 7.20 per pig. Those facts show that any possible ‘barriers concerning the price of pork’ – even if they existed, which has not been sufficiently established – constitute, in themselves, only a limited obstacle to exports and that the Commission did not therefore err in its assessment. Consequently, this complaint must be rejected.
124 With regard, secondly, to the alleged barrier arising from the purported additional transport costs, the Commission states in recital 20 of the contested decision that, according to the parties to the concentration and the market investigation, transport costs are not decisive inasmuch as their impact on the price of pigs for slaughter is marginal. The applicants do not dispute those conclusions either in the application or the reply. In support of their claim, the applicants merely refer – in very general terms, moreover – to NVV’s answer to the Commission’s questionnaire. However, although that answer indeed mentions transport costs, it in no way supports the applicants’ claims and does not even provide a basis for their claims or disclose a manifest error of assessment on the part of the Commission in that regard (see paragraph 60 et seq. above). In consequence, this complaint must also be rejected.
125 Thirdly and lastly, the other alleged barriers to exports – mentioned in paragraph 114 above – are not explained either in the application or in NVV’s answer to the Commission’s questionnaire and no evidence has been adduced in support of their existence. Furthermore, the applicants do not explain how the productivity of holdings or competition on the European meat market could constitute barriers to exports or entail additional costs related to such exports.
126 In the light of the foregoing, it must be concluded that the Commission did not make a manifest error of assessment when defining the geographic market with regard to the purported barriers to exports mentioned by the applicants.
e) Transport distances under 150 km taken into account by the Commission and the exertion of political pressure
Arguments of the parties
127 The applicants point out that, as regards the transportation of pigmeat to slaughterhouses, the distances covered are less than 50 km in 70% of cases, less than 70 km in 85% of cases and less than 95 km in 95% of cases. It follows that most pigs for slaughter are transported to the slaughterhouse over a distance significantly shorter than the radius of 150 km which was used as a basis for defining the relevant geographic market in the contested decision. The Commission thus fixed that radius in an arbitrary fashion. Because of the barriers to exports, it is highly improbable – even inconceivable – that, in the present case, suppliers of live pigs for slaughter would, as a result of a small but sustainable reduction in the purchase price offered by the body which emerged from the concentration, transport their animals over a distance of 150 km to competing slaughterhouses.
128 The applicants also claim that growing political pressures to reduce the distance over which animals are transported also shows that it would be appropriate to limit the relevant geographic market in the present case to the national territory of the Netherlands.
129 The Commission disputes the applicants’ arguments.
Findings of the Court
130 It should be noted, first of all, that, as was pointed out in paragraph 122 above, the decisive question for the purposes of defining the relevant geographic market in the present case is whether suppliers of pigs for slaughter would be willing to transport their animals over a distance of 150 km to competing slaughterhouses if there were to be a small but sustainable reduction in the purchase price of pigs, with the result that such a drop in prices would not be profitable for the body which emerged from the concentration. The fact that the majority of pigs for slaughter are usually transported over distances under 150 km does not therefore constitute, in itself, a decisive factor for defining the relevant market.
131 Moreover, the market investigation carried out by the Commission as well as the evidence placed in the file and discussed earlier confirmed that slaughterhouses within a radius of 150 km could constitute an alternative solution if the purchase price of pigs falls as a result of the concentration (see paragraph 102 et seq. above). It must therefore be concluded that the Commission did not make a manifest error of assessment in that regard.
132 With regard to the purported political pressures, it should be pointed out that the applicants themselves admit that it is a supplementary argument which does not therefore constitute a decisive fact for the purposes of defining the geographic market. In any event, the applicants have completely failed to support their claims in that regard.
133 In the light of all those considerations, these complaints must also be rejected.
f) Previous decision-making practice
Arguments of the parties
134 The applicants complain that the Commission departed, without good reason, from its previous decision-making practice with regard to the definition of the geographic market for the purchase of live pigs for slaughter and from the practice of the Netherlands competition authority. In the applicants’ view, although it is true that the Commission must define the relevant geographic market in the light of the relevant factors in each particular case, it is also true that it cannot do so by departing suddenly, and without giving any good reason, from its earlier practice. In addition, the decisions adopted by the Commission concerning the geographic market for the purchase of live pigs for slaughter in other Member States have the authority of precedent.
135 The Commission disputes the applicants’ arguments.
Findings of the Court
136 It should first be recalled that, according to case-law, although the Commission must give an account of its reasoning if a decision goes appreciably further than the previous decision-making practice (Case 73/74 Groupement des fabricants de papiers peints de Belgique and Others v Commission [1975] ECR 1491, paragraph 31), economic operators have no grounds for a legitimate expectation that a previous decision-making practice, that is capable of being varied when the Community institutions exercise their discretion, will be maintained (see General Electric v Commission, paragraph 53 above, paragraph 512, and the case-law cited therein). In particular, the applicants cannot have entertained such a legitimate expectation on the ground that the Commission had defined markets in a particular way in a previous decision, since the Commission – and, a fortiori, the Court – is not bound by the findings made in such a decision (see, to that effect, General Electric v Commission, paragraph 53 above, paragraph 514).
137 In that regard, it should be noted, first, that the applicants cite no case in which the Commission defined the markets for the purchase of live pigs or sows for slaughter in the Netherlands. They cannot therefore claim that the Commission departed from its previous decision-making practice in the contested decision. Although it is true that, in certain decisions, the Commission examined the market in other Member States for live pigs for slaughter, in particular, the market in Denmark (see Commission Decision 2000/42/EC of 9 March 1999 relating to a proceeding under Council Regulation (EEC) No 4064/89 (Case IV/M.1313 – Danish Crown/Vestjyske Slagterier) (OJ 2000 L 20, p. 1) and the decision of 14 February 2002 relating to a proceeding under Regulation No 4064/89 (Case COMP/M.2662 – Danish Crown/Steff‑Houlberg)) and in Germany (Commission decision of 19 March 2004 relating to a proceeding under Regulation No 4064/89 (Case COMP/M.3337 – Best Agrifund/Nordfleisch)), the assessment made in those decisions is not necessarily applicable to other geographic markets inasmuch as the conditions of competition in the various Member States can be fundamentally different.
138 With regard to the Danish market, although it is true that the Commission concluded in previous decisions that the market for live pigs for slaughter was at national level, a comparison of the decisions shows that the conditions in the Dutch and Danish markets are fundamentally different. On the one hand, unlike the Netherlands, the market in Denmark is marked by the organisation of slaughterhouses in a cooperative structure which binds farmers to pig slaughterhouses through exclusive supply obligations, the need for long periods of notice for the termination of the obligations, and by means of premiums. On the other hand, exports to Germany of Dutch pigs are considerably higher than those of Danish pigs, even though the difference between German and Danish prices is much greater than that between German and Dutch prices. Moreover, with regard to the German market, the Commission, in the Best Agrifund/Nordfleisch case mentioned by the applicants, left the definition of the geographic market open.
139 With regard to the difference between the Commission’s assessment in the contested decision and the assessment made by the Netherlands competition authority, it should first of all be recalled that, having regard to the clear division of powers on which Regulation No 139/2004 is based, decisions taken by the national authorities cannot be binding upon the Commission in proceedings for the control of concentrations (see, to that effect, with regard to Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings (OJ 1990 L 257, p. 13), Case C‑202/06 P Cementbouw Handel & Industrie v Commission [2007] ECR I‑12129, paragraph 56). Moreover, the Commission and the Netherlands competition authority give their decisions, in their respective fields of competence, in the light of different criteria (see, to that effect, Cementbouw Handel & Industrie v Commission, paragraph 57). In any event, the applicants themselves have admitted that the Netherlands competition authority took account, when defining the geographic market, of the competitive pressure of foreign slaughterhouses located in frontier areas.
140 In the light of the foregoing, this complaint must also be rejected.
141 Having regard to all the foregoing, it must be concluded that since the applicants have not shown that the Commission made a manifest error of assessment as regards the definition of the geographic market used in the contested decision, the third branch of the first plea in law must be rejected.
5. The first and fourth branches of the first plea in law, concerning the assessment of the concentration in the light of competition law
a) Arguments of the parties
142 The applicants claim that, contrary to the conclusion arrived at by the Commission in the contested decision, the concentration gave the new entity a dominant position on the markets for the purchase of live pigs or sows for slaughter, creating an obstacle to effective competition and, for that reason, should have been declared incompatible with the common market.
143 First of all, the applicants maintain that the Commission’s economic assessment is based on a false premiss related to the incorrect definition of the relevant geographic markets. Thus, if the Commission had envisaged the geographic markets at national level, it would have come to a different conclusion, namely that the concentration created a ‘particularly dominant position’ on those markets. The applicants claim that, in the present case, the parties to the concentration have, after the concentration operation at issue, a market share of 65% in the Dutch market for the purchase of live pigs for slaughter, whereas, as can be seen from the data submitted by NVV, the other slaughterhouses have market shares of no more than 8% each.
144 Secondly, the applicants criticise the finding in recital 50 of the contested decision that the average spare capacity of pig slaughterhouses in the Netherlands is 12%. They maintain that, on the contrary, there is no spare capacity in the present case because, in the interests of good management, the capacity of a slaughterhouse is never fully used. A margin corresponding to approximately 10% of the capacity of a slaughterhouse is always left unused, so as to be able to react correctly to fluctuations in the supply of pigs for slaughter. The result of 100% use of a slaughterhouse’s capacity would be a market in which farmers or pig dealers would no longer have a free choice to deal with a given slaughterhouse, which could create disturbances on the market.
145 Thirdly, the applicants complain that the Commission took no account of a number of factors in its assessment of the competitive effects of the concentration and, in particular, the fact that: (i) exports of slaughter pigs from the Netherlands to Germany never exceeded 10% to 15% of total production; (ii) the export market is complementary since the Dutch market absorbs 85% to 90% of production capacity; (iii) the import market is a complementary market in Germany; (iv) imports of pigs into Germany from the Netherlands are in competition with imports from Denmark; and (v) all those factors are reinforced by the financial and other barriers to exports mentioned in the context of the third branch of the first plea in law.
146 Fourthly, the applicants claim that the dominant position created by the concentration operation at issue flows not only from the very high market shares held by the parties to the concentration but also from the ‘the considerable overlap of interests in various organisations having a certain degree of power in the relevant market’, such as the Centrale Organisatie voor de Vleessector (COV), the PVVE, the Land- en Tuinbouw Organisatie Nederland (LTO), the Zuidelijke Land- en Tuinbouw Organisatie (ZLTO) and the Noord-Brabantse Christelijke Boerenbond (NCB).
147 The Commission, supported by the intervener, disputes the arguments put forward by the applicants.
b) Findings of the Court
148 It should be recalled that, pursuant to Article 2(2) of Regulation No 139/2004, concentrations 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, are to be declared compatible with the common market.
149 It should also be borne in mind that, although the existence of a dominant position must be assessed on a case-by-case basis according to the circumstances of the case (see, to that effect, Sun Chemical Group and Others v Commission, paragraph 45 above, paragraph 136), recital 32 in the preamble to Regulation No 139/2004 states that concentrations which, by reason of the limited market share of the undertakings concerned, are not liable to impede effective competition may be presumed to be compatible with the common market. An indication to this effect exists, in particular, where the market shares of the undertakings concerned do not exceed 25% either in the common market or in a substantial part of it.
150 In the present case, the Commission found that, with regard to the markets for the purchase of pigs for slaughter, the parties to the concentration would, as a result thereof, hold market shares of below 30% in each of the three relevant markets (recital 47 of the contested decision). After making that finding, the Commission set out, in recitals 48 to 51 of the contested decision, its competitive assessment, finding that, following the concentration, the markets would remain sufficiently fragmented, with several competitors holding market shares between 4% and 16% (recital 49 of the contested decision) and with spare capacity of approximately 12% in the Netherlands, 14% in Belgium and 28% in the western regions of Germany.
151 With regard to the market for sows for slaughter, the Commission pointed out in the contested decision that, following the concentration, market shares would be even lower, that is to say, less than 20% for each of the three relevant markets (recital 52 of the contested decision). In the light of the limited market shares held – considerably lower than the threshold indicated in recital 32 in the preamble to Regulation No 139/2004 – the Commission did not consider it necessary to take the competitive assessment any further (recital 53 of the contested decision).
152 At the end of that assessment, the Commission therefore concluded that the concentration did not give rise to competition issues in the markets for the purchase of live pigs or sows for slaughter (recital 54 of the contested decision).
153 The Court would point out that the applicants’ arguments are not such as to call into question the Commission’s competitive assessment in the contested decision.
154 First, it should be borne in mind that the argument concerning the incorrect definition of the relevant markets has already been rejected in the examination of the second and third branches of the first plea in law (see paragraphs 69 et seq. and 79 et seq. above, respectively).
155 Secondly, with regard to the finding, in recital 50 of the contested decision, concerning the existence of approximately 12% spare capacity in Dutch slaughterhouses, it should be noted that, in the application and the reply, the applicants themselves admit the existence of that spare capacity when they state that ‘some spare capacity (about 10%) is necessary in order to absorb the fairly fluctuating supply of slaughter pigs’. In any event, the possible existence of such spare capacity in the market is, although important, a complementary factor in the competitive assessment which merely places in context the market positions of the parties to the concentration after the concentration operation has taken place.
156 Thirdly, with regard to the factors mentioned in paragraph 145 above, of which the Commission allegedly did not take account in its competitive assessment, it should be noted, even without addressing the question of their admissibility, raised by the Commission, that the applicants do not explain either the reasons why and how an assessment of those factors should have led the Commission to conclude that the concentration would significantly impede effective competition in the common market or in a substantial part of it, or in what other fashion the Commission made an error of assessment in its competitive assessment of the concentration by reason of not taking those factors into account. Furthermore, the applicants in no way support their claims whereas the supposed barriers to exports to which they refer have already been found not to exist in the context of the examination of the third branch of the first plea in law.
157 Finally, it should be pointed out that the complaint concerning the supposed ‘overlapping interests’ in organisations having a certain degree of power in the relevant market has not been supported by any evidence adduced by the applicants and must therefore be rejected.
158 In the light of the foregoing, since the applicants have not shown that the Commission erred in its assessment of the competitive effects of the concentration, the first and fourth branches of the first plea in law must be rejected.
159 Having regard to the foregoing, the first plea in law must be rejected in its entirety.
B – The second plea in law, alleging breach of the duty of care and of the duty to state reasons
160 The second plea in law, alleging breach of the Commission’s duty of care and of its duty to state reasons (Article 253 EC), may be divided into three branches.
1. The first branch of the second plea in law, alleging breach of the duty of care
a) Arguments of the parties
161 First, the applicants complain that the Commission acted in breach of its duty of care inasmuch as it failed to take account of the arguments and information put forward by the applicants in the course of the administrative procedure, either leaving them entirely out of consideration or, at least, not including them in its assessment notwithstanding the fact that it is on those factors that the definition of the relevant geographic market should be based. Secondly, the applicants complain that the Commission based the contested decision on information provided by the parties to the concentration and third parties connected with them, or by third parties who did not possess sufficient expert knowledge or who were not sufficiently representative, or it based its decision on subjective conjecture which was not supported in an appropriate fashion, without carrying out an independent market investigation as a consequence of the arguments put forward by the applicants and the inconsistencies in the information available to it. The outcome of this was that the Commission arrived at incorrect results and conclusions. With regard to Mr J.’s statement, in particular, the applicants complain that the Commission did not seek any information from them with regard to its content and did not take account of their letters of 21 December 2004 (see paragraph 26 above).
162 The Commission disputes all the applicants’ arguments on those points.
b) Findings of the Court
The duty of care
163 It should first be borne in mind that, according to settled case-law, where the Community institutions have a discretion, as in the matter of the control of concentrations (see the case-law cited in paragraph 53 above), respect for the safeguards guaranteed by the Community legal order in administrative procedures is of even more fundamental importance. Those safeguards include, in particular, the duty of the competent institution to examine carefully and impartially all the relevant aspects in the individual case, the right of the person concerned to make his views known and to have an adequately reasoned decision (see Case C‑269/90 Technische Universität München [1991] ECR I‑5469, paragraph 14; Case T‑167/94 Nölle v Council and Commission [1995] ECR II‑2589, paragraph 73; and Joined Cases T‑528/93, T‑542/93, T‑543/93 and T‑546/93 Métropole télévision and Others v Commission [1996] ECR II‑649, paragraph 93, and the case-law cited therein).
164 With regard to control of concentrations, the Commission, according to well-settled case-law, has a discretion, especially with respect to assessments of an economic nature (see the case-law cited in paragraph 53 above). Respect by the Commission for the safeguards guaranteed by the Community legal order in administrative procedures, such as the duty of care which requires it to examine carefully and impartially all the relevant aspects in the individual case, is therefore even more important in that domain (on the importance of respect for the safeguards conferred by the Community legal order in administrative procedures concerning the control of concentrations, see the Opinion of Advocate General Kokott in Case C‑413/06 P Bertelsmann and Sony Corporation of America v Impala [2008] ECR I‑0000, point 126).
165 Since the Commission is required to comply with the duty of care with regard to its actions in this area, it must determine with the necessary care the elements of fact and of law which are essential to the exercise of its discretion by gathering all the facts which are necessary in order to exercise that discretion and which might affect the result of the decision-making process. That duty implies, first, that the Commission must take account of the facts and the information provided to it by the notifying parties or by any third party taking an active part in the procedure, and, secondly, that it must, if necessary, seek to discover those facts through market investigations or requests for information from market operators.
166 However, it should be pointed out that with regard to control of concentrations, the Commission’s obligation to respect the rights guaranteed by the Community legal order in administrative procedures – hence also its obligation to comply with the duty of care – must, like compliance with the duty to state reasons (see paragraph 192 below), be interpreted in a way which is compatible with the need for speed which characterises the general scheme of Regulation No 139/2004 and which requires the Commission to meet tight deadlines when it exercises its discretion (see, to that effect, with regard to Regulation No 4064/89, Cementbouw Handel & Industrie v Commission, paragraph 139 above, paragraph 39).
167 The criticisms put forward by the applicants with regard to the alleged breaches by the Commission of its duty of care must now be examined in the light of those principles.
The alleged breaches of the duty of care
168 The applicants argue, in substance, that the Commission acted in breach of its duty of care, first, inasmuch as it failed to take account of the arguments and information put forward by them in the course of the administrative procedure and, secondly, inasmuch as it based the contested decision on information provided, essentially, by the parties to the concentration or by third parties connected with them, and, in any event, on information not sufficiently verified by means of an appropriate and independent market investigation.
169 With regard to the first part of this branch, it must first be pointed out that, in the context of the second plea in law, the applicants merely complain, in general terms, that the Commission failed to take account of the facts and information provided by them in the course of the administrative procedure, without stating precisely what facts or information relevant to the case the Commission had failed to assess with the necessary care and impartiality.
170 Moreover, examination of the file and of the considerations set out in paragraph 79 et seq. above with regard to the third branch of the first plea in law shows, contrary to the applicants’ argument, that the Commission did not fail to take account of the facts and information put forward by them in the course of the administrative procedure but that, on the contrary, it took account of those facts and that information, which it then integrated into its assessment. That finding is confirmed by the fact that, in the contested decision, the Commission expressly assessed, essentially, all the elements which the applicants claim to have put forward in the course of the administrative procedure in the present case and which, according to the applicants, the Commission failed to take into account in its assessment.
171 Thus, in the contested decision, the complaint concerning the lack of interchangeability of German and Dutch pigs is assessed in recital 27 (first indent) and in recitals 31 and 32; the complaint concerning the alleged lack of any connection between fluctuations in the difference in purchase price and the volume of exports is addressed in recitals 36 to 38; the consequences of epizootic outbreaks of disease are assessed in recital 27 (third indent) and recital 43; the purported veterinary requirements and other purported additional costs related to exports are assessed in recital 27 (second indent) and recitals 33 to 35; the question of transport distances is addressed in recital 26; the Commission’s previous decisions in the sector at issue are taken into account in recital 17; the question of spare capacity is addressed in recital 50, in the part concerning the assessment of the competitive effects of the concentration. Finally, in recitals 29, 39 and 40 of the contested decision, the Commission addresses the argument based on the duration of supply contracts, referred to by the applicants at the meeting of 10 December 2004 and not raised in the present case. On the other hand, it is not apparent from the file that the applicants expressly put forward, in the course of the administrative procedure, the complaints based on transport distances shorter than the radius of 150 km taken into account by the Commission or the existence of political pressures to reduce the time during which live animals remain in transit.
172 The applicants’ complaints in that regard must therefore be rejected.
173 With regard to the second part of this branch, it should be pointed out that the applicants challenge both the first ‘market investigation’ – referred to in recital 26 of the contested decision and which the Commission carried out by sending a questionnaire to various operators in the markets – and what the Commission calls the ‘supplementary investigation’ in recital 30 et seq. of the contested decision, which was carried out with a view to assessing the validity and relevance of the facts and arguments put forward by the applicants. In particular, the applicants maintain that the supplementary investigation is ‘vitiated’ and ‘unrepresentative’ inasmuch as it was carried out exclusively on the basis of statements from the parties to the concentration and third parties connected with them.
174 With regard to the first ‘market investigation’, it should be pointed out first that, as a rule, in the procedures for control of concentrations, the Commission, after being notified, carries out an investigation pursuant to its powers under Regulation No 139/2004 so as to understand better the functioning of the relevant markets and to obtain information on the competitive situation in those markets. Such an investigation can involve, inter alia, sending a questionnaire to undertakings or other bodies, such as associations of undertakings or professional associations, which have detailed knowledge of the markets in question.
175 However, it is apparent from the file that, in the present case, the investigation which the Commission carried out was quite extensive, inasmuch as nearly 200 market operators were involved in it. In addition, the questionnaire sent to the various market operators contained 36 very detailed questions concerning the relevant markets and the competitive assessment of the effects of the concentration. Of those questions, 14 concerned the market for the purchase of live pigs for slaughter and 6 others dealt specifically with the extent of the geographic market and, in particular, with the questions of transport distance, the size of the national market, the regions proposed by the parties to the concentration as the centre of the 150 km radius, and transport costs. NVV received the questionnaire and replied to it.
176 In view of those findings, the applicants cannot claim that the Commission did not carry out an adequate investigation in order to determine the facts relevant to the present case with particular regard to the definition of the geographic markets for the purchase of pigs or sows for slaughter. With regard to the applicants’ claim that nothing in the contested decision makes it possible to determine the factors on which the market investigation was based, it should first be noted that in several recitals in the decision, the Commission refers in a precise fashion to the operators who provided the information in question (see, in particular, recitals 32, 38 and 42 of the contested decision) and, secondly, that, in any event, the Commission is not required, in the context of a decision adopted under Article 6(1)(b) of Regulation No 139/2004, to specify in detail the documents and sources on which it has based its assessment, provided that specific references are not necessary in order for its reasoning to be clear and unequivocal (see, to that effect, Verband der freien Rohrwerke and Others v Commission, paragraph 41 above, paragraph 185).
177 Moreover, the applicants’ arguments are also directed against the ‘supplementary investigation’, referred to in recital 30 of the contested decision, which the Commission carried out with a view to assessing the validity and the relevance of the arguments and facts put forward by the applicants themselves in the course of the procedure.
178 In that regard, it is apparent from the file that, as a result of the replies received to the questionnaire and the meeting with the applicants, the Commission carried out a specific supplementary investigation in the light of the arguments and facts put forward by the applicants. It is also apparent from the file that, in the ‘supplementary investigation’, the Commission, in reality, merely sent, on the same day as the meeting with the applicants, an e-mail to the representatives of the parties to the concentration containing a request for information concerning the facts, put forward by the applicants in the course of the meeting, which they regarded as constituting barriers to exports. Because of the very tight procedural deadlines, the Commission allowed the parties to the concentration only a very short time in which to reply (two days at the end of a week).
179 The day after that request for information was sent, the representatives of the parties to the concentration sent a note in which they replied point by point to the Commission’s questions and provided additional documents in support of their assertions. Two days later, the representatives of the parties to the concentration also sent, in support of their arguments, several statements from ‘third parties’ which confirmed their assertions in the note. After receiving that information and those statements, the Commission did not consider it necessary to carry out further investigations.
180 However, the applicants challenge the way in which the ‘supplementary investigation’ was carried out, arguing that the Commission based itself solely on information provided, essentially, by the parties to the concentration. The Court must therefore verify whether, by carrying out the supplementary investigation as described above, the Commission acted in breach of its duty of care, which required it to determine with the necessary care and impartiality the elements of fact and of law to which its discretion is to be applied.
181 It should be pointed out in that regard that, in the present case, although the Commission’s ‘supplementary investigation’ was indeed limited to a request for additional information from the parties to the concentration, that investigation dealt with a single question, namely the definition of the geographic market, in regard to which the Commission had already carried out an in-depth market investigation, which, as is apparent from the file, produced preliminary results substantially compatible with the definition proposed by the parties to the concentration and later adopted in the contested decision. It is precisely because certain qualified third parties, in particular, the applicants, expressed different positions that the Commission considered it necessary to carry out the supplementary investigation in order to assess the relevance of the facts put forward by those third parties.
182 In that context, the fact that the Commission turned to the parties to the concentration to get their opinion on the points raised is not surprising inasmuch as, not merely did they have a detailed knowledge of the markets, but they were also the parties primarily interested in the concentration operation in question and had, in any event, to be given the opportunity, as part of their right to be heard, to express their views on the relevant questions raised by the third parties in the course of the procedure.
183 As it is, in the present case, the parties to the concentration did not merely refute the applicants’ arguments but also produced, in support of their own arguments, statements from third parties active in the sectors at issue, who were probably informed as to the situation in the affected markets. It must be stated that it is not apparent from the file that the Commission verified the independence of the third parties who provided information in support of the positions of the parties to the concentration. On the question whether the Commission was, for that reason, in breach of its duty of care as defined in paragraph 163 et seq. above, the following considerations must be set out.
184 It should be pointed out first that, in view of the need for speed and the very tight deadlines to which the Commission is subject in the procedure for the control of concentrations, the Commission cannot be required, in the absence of evidence indicating that information provided to it is inaccurate, to verify all the information it receives. Although the diligent and impartial examination which the Commission is obliged to carry out in the context of that procedure does not permit it to base itself on facts or information which cannot be regarded as accurate, the abovementioned need for speed presupposes that it cannot itself verify down to the last detail the authenticity and reliability of all the information it receives, since the procedure for the control of concentrations is based, of necessity and to a certain extent, on trust.
185 It should be recalled in that regard that, in the context of the legislation on the control of concentrations, various measures have been provided for in order to discourage and punish the communication of inaccurate or misleading information. As the Commission rightly points out, not only do the notifying parties have an express obligation to make a full and honest disclosure to it of the facts and circumstances which are relevant for the decision (recital 5 in the preamble to, Article 4(1) and Article 6(2) of Regulation No 802/2004) – that obligation being confirmed by Article 14 of Regulation No 139/2004 – the Commission may also revoke the decision on compatibility if it is based on incorrect information for which one of the undertakings is responsible or where it has been brought about by deceit (see Article 6(3)(a) and Article 8(6)(a) of Regulation No 139/2004).
186 In any event, it must be held that, in the present case, as is apparent from the considerations set out in paragraph 91 et seq. above, the applicants have in no way substantiated their claims that the statements produced during the ‘supplementary investigation’ emanated, almost without exception, from parties directly or indirectly within the sphere of influence of the parties to the concentration, and are therefore wholly incapable of proving that, by not specifically investigating the independence of those third parties, the Commission acted in breach of the duty of care which required it to examine diligently and impartially all the facts relevant to the present case.
187 With regard, specifically, to Mr J.’s statement, it should be pointed out, first, that, as follows from the considerations set out in paragraph 92 above, the Commission had no obligation to hear the applicants on the subject of the statement made by the secretary of the PVVE and, secondly, that, in any event, the letters of 21 December 2004 did not, by themselves, cast doubt on the Commission’s assessment since Mr J.’s statement was merely one of the many pieces of evidence in support of the Commission’s conclusions and, indeed, its content tallied with the other evidence.
188 In the light of the foregoing, it must be concluded that the Commission did not act in breach of its duty of care in the present case and that the present branch of the second plea in law must, consequently, be rejected.
2. The second branch of the second plea in law, alleging breach of the duty to state reasons
a) Arguments of the parties
189 The applicants also claim that the Commission did not provide an adequate statement of reasons for the contested decision or for the rejection of the arguments and facts that the applicants put forward in the course of the administrative procedure. With regard to the latter point, the applicants complain, more precisely, that the Commission set out their arguments too briefly and in an inadequate fashion in recitals 27 to 29 of the contested decision and did not indicate in a clear, comprehensible and sufficiently detailed fashion the grounds on which those arguments were rejected or, at least, the grounds on which the Commission based the contested decision.
190 The Commission disputes the applicants’ arguments.
b) Findings of the Court
191 According to established case-law, the statement of reasons required under Article 253 EC 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 the measure and to enable the competent court 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 grounds relied on 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 go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 253 EC 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 (Case C‑367/95 P Commission v Sytraval and Brink’s France [1998] ECR I‑1719, paragraph 63, and Case C‑42/01 Portugal v Commission [2004] ECR I‑6079, paragraph 66).
192 The institution which adopted the act is not required, however, to define its position on matters which are plainly of secondary importance or to anticipate potential objections (Joined Cases C‑465/02 and C‑466/02 Germany and Denmark v Commission [2005] ECR I‑9115 (‘Feta’), paragraph 106). Moreover, the degree of precision of the statement of the reasons for a decision must be weighed against practical realities and the time and technical facilities available for making the decision (Case C‑350/88 Delacre and Others v Commission [1990] ECR I‑395, paragraph 16; see also, to that effect, Case 16/65 Schwarz [1965] ECR 877, 888). Thus, the Commission does not act in breach of its duty to state reasons if, when exercising its power to examine concentrations, it does not include precise reasoning in its decision as to the appraisal of a number of aspects of the concentration which appear to it to be manifestly irrelevant or insignificant or plainly of secondary importance to the appraisal of the concentration (see, to that effect, Commission v Sytraval and Brink’s France, paragraph 191 above, paragraph 64). Such a requirement would be difficult to reconcile with the need for speed and the tight procedural deadlines which the Commission is required to meet when exercising its power to examine concentrations and which form part of the particular circumstances of proceedings for control of such operations (Cementbouw Handel & Industrie v Commission, paragraph 139 above, paragraph 39, and Verband der freien Rohrwerke and Others v Commission, paragraph 41 above, paragraph 186).
193 It follows that where the Commission declares a concentration to be compatible with the common market on the basis of Article 6(1)(b) of Regulation No 139/2004, the requirement to state reasons is satisfied where that decision clearly sets out the reasons for which the Commission considers that the concentration in question – where appropriate, following modification by the undertakings concerned – does not raise serious doubts as to its compatibility with the common market (Verband der freien Rohrwerke and Others v Commission, paragraph 41 above, paragraph 185).
194 In that regard, while it is true that the Commission is not obliged, in the statement of reasons for decisions adopted under Regulation No 139/2004, to take a position on all the information and arguments relied on before it, including those which are plainly of secondary importance to the appraisal it is required to undertake, it none the less remains the case that it is required to set out the facts and the legal considerations which are of decisive importance in the conceptual framework of the decision (see, to that effect and by way of analogy, Case 13/60 Geitling and Others v High Authority [1962] ECR 83, 117; Case 41/69 ACF Chemiefarma v Commission [1970] ECR 661, paragraph 78; and Case 158/80 Rewe-Handelsgesellschaft Nord and Rewe-Markt Steffen [1981] ECR 1805, paragraph 26).
195 In the present case, it must be held that recitals 12 to 54 of the contested decision, concerning the markets for the purchase of pigs or sows for slaughter, reveal, clearly and unambiguously, the reasons why the Commission considered that, in respect of those markets, the concentration did not raise serious doubts as to its compatibility with the common market. Those recitals enabled the Court to exercise its powers of review with regard to the various challenges raised by the applicants in the present action.
196 In addition, it should be pointed out that – as may be seen from paragraph 171 above – in recitals 26 to 43 of the contested decision, the Commission set out all the facts and arguments put forward by the applicants in the course of the administrative procedure and stated its position in a detailed fashion on their merits, explaining the content of each argument and the reasons why it was rejected.
197 It follows that the branch alleging breach of the duty to state reasons must be rejected as unfounded.
3. The third branch of the second plea in law, alleging breach of the right to be heard
a) Arguments of the parties
198 In the context of the second plea in law, the applicants claim, several times, that the Commission did not permit them to express their point of view sufficiently in the course of the administrative procedure. The applicants argue, in particular, that, at the meeting of 10 December 2004, they were not heard with sufficient attention; that they did not really have an opportunity to set out their position; that the Commission’s representatives spoke only in English and that, accordingly, they were not in a position to defend their point of view in a complete and comprehensible fashion.
199 The Commission disputes the applicants’ arguments.
b) Findings of the Court
200 It should be pointed out that, by arguing that the Commission did not give them a sufficient opportunity to set out their arguments in the course of the administrative procedure, the applicants are arguing, in substance, that their right to be heard was infringed.
201 It should be pointed out that, in the context of the procedure for the Community control of concentrations, the right to be heard is expressly granted, by Article 18(4) of Regulation No 139/2004 and Article 16(1) of Regulation No 802/2004, to third parties, such as the applicants, who show that they have a sufficient interest.
202 Those third parties have a right to be heard by the Commission, if they so request, in order to make known their views on the harmful effects on them of the proposed concentration notified, but such a right must nevertheless be reconciled with the observance of the rights of the defence of the parties to the concentration and with the primary aim of the regulation, which is to ensure effectiveness of control as well as legal certainty for the undertakings to which the regulation applies. It is therefore in the context of this system for the protection of the respective rights of interested parties and third parties that it is necessary to determine whether, in the present case, the applicants’ rights were disregarded (see, to that effect, Case T‑290/94 Kayserberg v Commission [1997] ECR II‑2137, paragraphs 109 and 110).
203 In that regard, it is apparent from the file that NVV and NBHV made full use of the opportunity offered to third parties of taking part in the administrative procedure and of expressing their point of view on the concentration.
204 NVV received the questionnaire sent by the Commission as part of its market investigation and, at its request, that questionnaire was also sent to it in the Dutch language. On 2 December 2004, it sent back its reply to the questionnaire, setting out its arguments in detail and adding a number of annexes in support of those arguments. In addition, on 10 December 2004, it attended a meeting together with NBHV at the Commission’s invitation, for the purpose of presenting their arguments orally. Finally, on 21 December 2004, it wrote once again to the Commission to dispute the content of Mr J.’s statement.
205 NBHV sent its first complaint by letter of 30 November 2004 following publication of the notice in the Official Journal calling upon interested third parties to submit their observations on the concentration (see paragraph 21 above). Subsequently, it attended the meeting with the Commission on 10 December 2004, following which, on 16 December 2004, it sent another letter in which it further clarified the objections to the concentration which it had set out in the course of the administrative procedure and, in particular, at that meeting. Finally, on 21 December 2004, NBHV sent a letter to the Commission in which it disputed the content of Mr J.’s statement.
206 In those circumstances, NVV and NBHV cannot complain that the Commission did not permit them to express their point of view sufficiently during the course of the administrative procedure.
207 However, the applicants specifically challenge the conduct of the meeting of 10 December 2004. They claim that they were not heard with sufficient attention at that meeting and did not really have an opportunity to present their point of view in a complete and comprehensible fashion, partly because the Commission’s representatives spoke only in English.
208 First of all, the Court notes that the applicants’ claims are very general and that they have failed to support them to the requisite legal standard, such as by specifying which arguments were not heard by the Commission and which they were unable to present sufficiently.
209 Secondly, a detailed analysis of the file shows that the Commission certainly took account of the arguments that the applicants put forward at the meeting of 10 December 2004. As can be seen from paragraphs 25 and 205 above, following that meeting, NBHV sent a letter on 16 December 2004 which was intended, precisely, to clarify the objections to the concentration which NBHV had put forward in the course of the administrative procedure and in particular at the meeting.
210 It must be stated that the subjects raised in that letter are broadly those regarding which the Commission had asked for further information in the e-mail which it sent to the parties on 10 December 2004, the day of the meeting, in order to obtain clarifications on the points raised by the applicants in their letters and which they had explained orally at the meeting (see paragraphs 24, 204 and 205 above). In addition, those subjects also correspond broadly to the facts which, according to the applicants, the Commission did not take into account in its assessment.
211 With regard to the fact that the meeting of 10 December 2004 was conducted in English rather than in Dutch, it should be pointed out that the applicants have not managed to indicate – whether in their written pleadings or in their answers to various questions put by the Court at the hearing – precisely which arguments and facts they were unable to present at the meeting by virtue of it being conducted in English and which, for that reason, the Commission did not take into account in its assessment. In addition, it does not emerge from the letter of 16 December 2004, sent by NBHV following that meeting, that the applicants complained about the way the meeting was conducted. Thus, although it is regrettable that the Commission did not give the applicants the opportunity of expressing themselves in Dutch at that meeting, it must be concluded in the light of the foregoing considerations that that fact did not have any harmful consequences capable of vitiating the administrative procedure (see, to that effect, ACF Chemiefarma v Commission, paragraph 194 above, paragraph 52).
212 It follows from all the foregoing that NVV and NBHV cannot complain that the Commission did not hear them with sufficient attention or did not give them an opportunity to defend their point of view in a complete and comprehensible fashion.
213 With regard, finally, to Mr Schep, who is, in any event – unlike NBHV – a member of NVV, he did not react to the notice published in the Official Journal (see paragraph 21 above); nor did he apply to be heard under Article 18(4) of Regulation No 139/2004 and Article 16(1) of Regulation No 802/2004. He cannot therefore complain that the Commission did not give him an opportunity to present his arguments sufficiently in the course of the administrative procedure.
214 In the light of the foregoing considerations, the present branch of the second plea in law must also be rejected.
215 In consequence, the second plea in law must be dismissed in its entirety.
The application by the applicants for measures of organisation of procedure
216 By letter of 13 July 2005, the applicants requested the Court to order the Commission, pursuant to Article 64(3)(d) of the Rules of Procedure, to produce all documents and papers relating to the case and to send them a copy of those documents and papers. The Commission contends that that request should be refused.
217 Without prejudice to the measure of organisation of procedure ordered on 1 April 2008 (see paragraph 36 above), it should be borne in mind, first of all, that, under Article 49 of the Rules of Procedure, the Court may, at any stage of the proceedings, prescribe any measure of organisation of procedure or any measure of inquiry referred to in Articles 64 and 65 thereof. A direction to produce documents is such a measure.
218 However, in order to enable the Court to determine whether it is conducive to proper conduct of the procedure to order the production of certain documents, the party requesting production must identify the documents requested and provide the Court with at least minimum information indicating the utility of those documents for the purposes of the proceedings (Case C‑185/95 P Baustahlgewebe v Commission [1998] ECR I‑8417, paragraph 93). Moreover, although it is true that the Commission cannot rely on documents to which neither the Court nor the applicants have had access, it must be observed that this circumstance alone does not, as such, justify an order by the Court for the production of documents on the basis of Article 64 of the Rules of Procedure. The Court may order such a measure for the organisation of procedure only if the applicants make out a plausible case that the documents are necessary and relevant for the purposes of judgment (Verband der freien Rohrwerke and Others v Commission, paragraph 41 above, paragraph 201).
219 It must be stated that, as it is formulated, the request for measures of organisation of procedure made by the applicants does not identify the documents they wish to have sight of with sufficient precision for the Court to be able to assess the utility of the documents for the purposes of the proceedings; nor have the applicants made out a plausible case that the documents are necessary and relevant for the purposes of judgment. The request for measures of organisation of procedure must therefore be refused.
Costs
220 Under Article 87(2) of the Rules of Procedure, 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 applicants have been unsuccessful, they must be ordered to pay the costs, in accordance with the form of order sought by the Commission and the intervener.
On those grounds,
THE COURT OF FIRST INSTANCE (Third Chamber)
hereby:
1. Dismisses the action;
2. Orders Nederlandse Vakbond Varkenshouders (NVV), Marius Schep and Nederlandse Bond van Handelaren in Vee (NBHV) to bear their own costs and to pay those incurred by the Commission and by Sovion NV.
Azizi | Cremona | Frimodt Nielsen |
Delivered in open court in Luxembourg on 7 May 2009.
[Signatures]
Table of contents
Legal context
Background to the dispute
I – Parties to the proceedings and to the concentration
II – Administrative procedure
Procedure and forms of order sought
Law
I – Admissibility
A – Arguments of the parties
B – Findings of the Court
II – Substance
A – The first plea in law, alleging infringement of Articles 2, 6 and 8 of Regulation No 139/2004
1. The lack of clarity in the first plea in law
a) Arguments of the parties
b) Findings of the Court
2. Infringement of Article 8 of Regulation No 139/2004
3. The second branch of the first plea in law, alleging the inclusion of sows in the definition of the relevant geographic market for the purchase of live pigs for slaughter
a) Arguments of the parties
b) Findings of the Court
4. The third branch of the first plea in law, alleging failure to take account of factors essential to the definition of the geographic market, or basing erroneous conclusions on such factors
a) The fact that pigs intended for the German market and pigs intended for the Dutch market are not interchangeable
Arguments of the parties
Findings of the Court
b) Lack of any connection between fluctuations in the difference in the purchase price of pigs as between the Netherlands and Germany and the volume of exports between those two countries
Arguments of the parties
Findings of the Court
c) Effects on exports of veterinary measures adopted as a result of epizootic outbreaks of disease
Arguments of the parties
Findings of the Court
d) Existence of other barriers to exports
Arguments of the parties
Findings of the Court
e) Transport distances under 150 km taken into account by the Commission and the exertion of political pressure
Arguments of the parties
Findings of the Court
f) Previous decision-making practice
Arguments of the parties
Findings of the Court
5. The first and fourth branches of the first plea in law, concerning the assessment of the concentration in the light of competition law
a) Arguments of the parties
b) Findings of the Court
B – The second plea in law, alleging breach of the duty of care and of the duty to state reasons
1. The first branch of the second plea in law, alleging breach of the duty of care
a) Arguments of the parties
b) Findings of the Court
The duty of care
The alleged breaches of the duty of care
2. The second branch of the second plea in law, alleging breach of the duty to state reasons
a) Arguments of the parties
b) Findings of the Court
3. The third branch of the second plea in law, alleging breach of the right to be heard
a) Arguments of the parties
b) Findings of the Court
The application by the applicants for measures of organisation of procedure
Costs