Appeal brought on 21 July 2023 by EnergieVerbund Dresden GmbH against the judgment of the General Court (Fourth Chamber, Extended Composition) delivered on 17 May 2023 in Case T-317/20, EnergieVerbund Dresden GmbH v European Commission
(Case C-468/23 P)
Language of the case: German
Parties
Appellant: EnergieVerbund Dresden GmbH (represented by: I. Zenke, Rechtsanwältin, and T. Heymann, Rechtsanwalt)
Other parties to the proceedings: European Commission, Federal Republic of Germany, E.ON SE, RWE AG
Form of order sought
The appellant claims that the Court should:
set aside the judgment of the General Court of the European Union of 17 May 2023, EnergieVerbund Dresden v Commission (T-317/20), and annul the decision of the European Commission of 26 February 2019 on the merger of ‘RWE/E.ON Assets’ (Case M.8871, OJ 2000 C 111, p. 1);
1a. in the alternative, and in any event, refer Case T-317/20 back to the General Court for it to make all necessary decisions;
order the Commission to pay the costs, including lawyers’ fees and travel expenses incurred by the appellant in proceedings T-317/20.
Grounds of appeal and main arguments
By its first ground of appeal, the appellant complains that, in the judgment under appeal, the General Court misinterpreted EU law – namely Article 101 TFEU and Article 21(1) of Regulation (EC) 139/2004. 1
First, EU law was infringed on account of the failure to apply Article 101 TFEU because of an alleged blocking effect of Article 21 of the EC Merger Regulation (paragraphs 391 et seq. of the judgment under appeal).
Secondly, account was not taken of the evidence submitted by the appellant of a cartel agreement between RWE and E.ON for the purposes of Article 101 TFEU (paragraphs 391 et seq. of the judgment under appeal).
Thirdly, the failure to take account of the facts submitted by the appellant on formal grounds is regarded as an infringement of procedural rights (paragraphs 392, 393 and 405 et seq. of the judgment under appeal).
By its second ground of appeal, the appellant submits that the General Court erred in not regarding the merger control proceedings of the Commission in Cases M.8871 and M.8870 and the merger control proceedings of the Bundeskartellamt (Federal Cartel Office) in Case B8-28/19 as integral parts of a single concentration, which were to be examined in merger proceedings.
In that context, first, the General Court is criticised for having excluded RWE’s investment in E.ON of 16.67% in Case B8-28/19 (paragraphs 64 et seq. of the judgment under appeal).
Secondly, the interpretation of the definition of a ‘single concentration’ under Article 3, read in conjunction with recital 20, of the EC Merger Regulation is criticised (paragraphs 73 et seq. of the judgment under appeal).
The third ground of appeal maintains that the General Court also infringed and incorrectly applied Article 2 of the EC Merger Regulation on account of an erroneous assessment of the market in Case M.8871.
First, the General Court erred in approving the fact that the Commission left open the definition of the market (paragraphs 219 et seq. of the judgment under appeal).
Secondly, the General Court failed to challenge the Commission’s inadequate forecast of market developments (paragraphs 228 et seq. of the judgment under appeal).
Thirdly, the appellant challenges the allegedly inadequate assessment of RWE’s increasing market power (paragraphs 259 et seq. of the judgment under appeal).
Fourthly, the General Court is alleged to have inadequately assessed the competitive relationship between RWE and E.ON and the elimination of E.ON (paragraphs 336 et seq. of the judgment under appeal).
Lastly, in the fourth ground of appeal, the appellant alleges that the General Court infringed the principles of the allocation of the burden of proof by imposing an excessive standard of proof on the appellant in the judgment under appeal (paragraphs 272, 277 et seq., 327, 340, 343 and 381).
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1 Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) (OJ 2004 L 24, p. 1).