Case T-452/04

Éditions Odile Jacob SAS

v

European Commission

(Competition – Concentrations – French-language publishing – Decision declaring the concentration compatible with the common market subject to sale of assets – Decision to approve the purchaser of the assets sold – Action for annulment brought by an unsuccessful prospective purchaser – Trustee’s independence – Regulation (EEC) No 4064/89)

Summary of the Judgment

1.      Competition – Concentrations – Commission Decision declaring a concentration compatible with the common market subject to meeting commitments – Commitment to sell assets under the supervision of an independent trustee – Decision to approve the purchaser of transferred asset – Trustee not independent – Decision to approve unlawful

(Council Regulation No 4064/89)

2.      Competition – Concentrations – Commission Decision declaring a concentration compatible with the common market subject to compliance with undertakings – Commitment to sell assets under the supervision of an independent trustee – Trustee not independent

(Council Regulation No 4064/89)

1.      Where the Commission declares a concentration compatible with the common market subject to certain commitments being met, those commitment including the obligation to sell assets and to appoint an independent trustee to ensure that the commitments are met, a decision whereby the Commission approved a purchaser of the assets sold in reliance on, inter alia, a report by a non-independent trustee must be annulled.

(see paras 83, 108-109, 118-119)

2.      Where the Commission declares a concentration compatible with the common market subject to certain commitments being met, those commitment including the obligation to sell assets and to appoint an independent trustee to ensure that the commitments are met, it is not possible to regard as being independent a person who was a member of the executive board of one of the companies which are parties to the concentration and who, in addition, performed his duties as such at the same time as the duties of trustee for more than a month, thereby having a dependence on one of the parties capable of casting doubt on his having the neutrality required to perform his tasks as trustee. Even if that person was a member of the executive board concerned as an independent third party, to the extent that he was associated with the exercise of the full range of statutory powers attached to such duties, he could not provide an entirely independent discharge of his responsibilities as a trustee.

(see paras 88-89, 93-94, 100, 103-105)