Appeal brought on 1 March 2024 by Mainova AG against the judgment of the General Court (Fifth Chamber, Extended Composition) delivered on 20 December 2023 in Case T-64/21, Mainova AG v European Commission

(Case C-178/24 P)

Language of the case: German

Parties

Appellant: Mainova AG (represented by: C. Schalast, Rechtsanwalt)

Other parties to the proceedings: European Commission, 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 20 December 2023 in Mainova v Commission (T-64/21) and annul the European Commission’s decision;

in the alternative, dismiss the judgment under appeal and refer the case back to the General Court;

order the Commission to pay the costs of both instances.

Grounds of appeal and main arguments

In support of the appeal, the appellant relies on five grounds of appeal.

First, the General Court misinterpreted Article 3(1) of the Merger Regulation ¹ in relation to the separation of the overall transaction in so far as it referred exclusively to the Commission Consolidated Jurisdictional Notice ² and overlooked both the judgment in Cementbouw ³ and recital 20 of the Merger Regulation. The General Court accordingly infringed the principles governing the hierarchical relationship of legal rules, the primacy of law and the separation of powers.

Secondly, the General Court did not address in its decision whether the demarcation agreement concluded by the parties to the concentration, in accordance with which RWE concentrated exclusively on the generation market and E.ON exclusively on the distribution market, represents a cartel infringement under Article 101 TFEU. In that context, the General Court did not take into account in particular the fact that Article 21(1) of the Merger Regulation does not exclude the applicability of primary law such as Article 101 TFEU. The General Court therefore did not examine essential interests and accordingly made errors of law in the decision.

Thirdly, the General Court incorrectly took the view that the Commission correctly investigated the basis for its data. In so doing, the General Court misjudged that the market survey used by the Commission represented a suitable basis for data. The circumstances of the market survey allowed for considerable uncertainty as to the reliability of the results of the surveyed undertakings. In addition, the results of the market survey are not unambiguous and do not support the result formulated by the Commission. By contrast, the General Court was wrong to overlook the expert reports submitted by the appellant which show the manifest errors of assessment committed by the Commission, since the General Court made an error in law in taking the view that those reports contained data from a time period following the adoption of the approval decision.

Fourthly, the General Court incorrectly assessed the market definition for the retail supply of electricity. The General Court was wrong to conclude that there was no competition between basic suppliers and providers of special contracts and accordingly that it was necessary to take the view that there were two objectively separate markets. The General Court overlooked the main arguments of the appellant in its assessment and consequently misjudged the manifest errors of assessment of the Commission.

Fifthly and finally, the General Court incorrectly assessed the potential competitive pressure. The General Court overlooked that there was potential competition between the parties to the concentration that could have converted to actual competition at any time. The view of the General Court that the parties to the concentration were not close competitors is therefore incorrect.

____________

¹     Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation; ‘the Merger Regulation’) (OJ 2004 L 24, p. 1).

¹     Commission Consolidated Jurisdictional Notice under Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings (OJ 2008, C 95, p. 1, as corrected by OJ 2009 C 43, p. 10).

¹     Judgment of 23 February 2006, Cementbouw Handel & Industrie v Kommission, T-282/02, EU:T:2006:64.