JUDGMENT OF THE COURT OF FIRST INSTANCE (Second Chamber,Extended Composition)

27 November 1997(1)

(Competition — Regulation No 4064/89 — Decision declaring a concentration tobe compatible with the common market — Commitments — Feminine hygieneproducts — Action for annulment — Admissibility — Infringement of essentialprocedural requirements — Consultation of third parties — Dominant position)

In Case T-290/94,

Kaysersberg SA, a company incorporated under French law, established inKaysersberg (France), represented by Dominique Voillemot and Jacques-PhilippeGunther, of the Paris Bar, with an address for service in Luxembourg at theChambers of Jacques Loesch, 11 Rue Goethe,

applicant,

v

Commission of the European Communities, represented initially by FranciscoGonzález Díaz, of its Legal Service, and Géraud de Bergues, a national civil servanton secondment to the Commission, subsequently by Giuliano Marenco, PrincipalLegal Adviser and Guy Charrier, a national civil servant on secondment to theCommission, acting as Agents, with an address for service in Luxembourg at theoffice of Carlos Goméz de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,

defendant,

supported by

Procter & Gamble GmbH, a company incorporated under German law, establishedin Schwalbach (Germany), represented by Mario Siragusa, of the Rome Bar,Giuseppe Scasselati-Sforzolini, of the Bologna Bar, and Nicholas Levy, Barrister,of the Bar of England and Wales, with an address for service in Luxembourg at theChambers of Elvinger and Hoss, 2 Place Winston Churchill,

intervener,

APPLICATION for the annulment of Commission Decision 94/893/EC of 21 June1994 relating to a proceeding under Council Regulation (EEC) No 4064/89declaring a concentration to be compatible with the common market and thefunctioning of the EEA Agreement (IV/M.430 — Procter & Gamble/VPSchickedanz (II), (OJ 1994 L 354, p. 32),

THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES (Second Chamber, ExtendedComposition),

composed of: C.W. Bellamy, President, C.P. Briët, A. Kalogeropoulos, A. Potockiand M. Jaeger, Judges,

Registrar: J. Palacio González, Administrator,

having regard to the written procedure and further to the hearing on 23 April 1997

gives the following

Judgment

Facts and procedure

General context of the concentration

1. Commission Decision 94/893/EC of 21 June 1994 declaring a concentration to becompatible with the common market and the functioning of the EEA Agreement(IV/M.430 — Procter & Gamble/VP Schickedanz (II)), (OJ 1994 L 354, p. 32)(hereinafter 'the Decision‘ or 'the contested decision‘) (see paragraph 41 et seqbelow) concerns the acquisition by Procter & Gamble GmbH (hereinafter 'P&G‘)of Vereinigte Papierwerke Schickedanz AG (hereinafter 'VPS‘).
   
   
2. P&G is a wholly owned subsidiary of its US American parent company, Procter &Gamble Company. The consolidated turnover of the group in 1992/1993 wasECU 23.626 million, 7.814 million of which was achieved within the Community. Besides laundry, hygiene and beauty products, food and beverages, P&G is activein the paper tissue products and sanitary protection businesses.
   
   
3. At the relevant time P&G was the leading operator on the market for sanitarytowels in Western Europe, with market shares for 1993 estimated at 42% by valueand 33.5% by volume throughout the Community and the EFTA countries. Asregards more specifically the German market, P&G's market shares in terms ofvalue which, according to point 119 of the contested decision, were between 35 and40%, made it, by virtue of its Always brand, the leading manufacturer of sanitarytowels. In 1993, thanks to its Ausonia and Evax brands, P&G held market sharesin Spain of between and 75 and 80% by value and between 65 and 70% by volume(point 119 of the Decision).
   
   
4. P&G also held a strong position on the market for baby nappies, particularly bythrough its Pampers brand, with a Community market share for 1993 of between45 and 50% by volume (point 25 of the Decision). On the other hand, until 1994,even though the group was the leading operator on the American market, P&Ghad not been active in Europe in household hygiene paper products, whichcomprise, inter alia, paper handkerchiefs, toilet paper, kitchen towels and facialtissues.
   
   
5. Before the concentration with P&G, VPS was a wholly owned subsidiary of Gustavund Grete Schickedanz Holding KG (hereinafter 'GGS‘), a limited partnershipunder German law. Its consolidated turnover in 1992/1993 was ECU 681 million,of which 645 million was achieved within the Community. VPS's activities concernfeminine hygiene products, household hygiene paper products, babies' nappies, aswell as adult incontinence products, cotton products and certain body careproducts.
   
   
6. As regards feminine hygiene products in particular, VPS was present, mainly inGermany, on the market for sanitary towels through its premium brand, Camelia,and its secondary brands, Blümia and Femina, and also as a manufacturer of own-label towels. In 1993 the market shares of VPS's Camelia products on the Germanmarket for sanitary towels were between 20 and 25% (by value and volume), theshare held jointly by the Blümia and Femina brands being between 5-10% by valueand 10-15% by volume (point 119 of the Decision). VPS also marketed its Cameliaproducts in Spain, where its market shares were, however, less than 5% in 1993,as well as in Austria, Italy and Switzerland. Lastly, VPS manufactured tamponswhich it marketed under the Tampona trademark.
   
   
7. Besides feminine hygiene products, VPS was present on the market for babynappies through its Moltex and Born brands, with a Community market share ofbetween 1 and 5% in 1993 (point 25 of the Decision).
   
   
8. In the household hygiene paper products sector, VPS's overall market shares weremodest, but between 15 and 20% (by volume) on the German market for 1993(point 13 of the Decision).
   
   Procedure before the Commission
   
   
9. On 9 December 1993 P&G notified the Commission in accordance withArticle 4(1) of Council Regulation (EEC) No 4064/89 of 21 December 1989 on thecontrol of concentrations between undertakings (corrected version published in OJ1990 L 257, p. 13) of the proposed acquisition of the entire share capital of VPS.
   
   
10. On 21 December 1993, in the context of that original notification, Kaysersbergreplied to a Commission questionnaire of 17 December 1993 by sendinginformation relating to the feminine hygiene and adult incontinence sectors inFrance, together with its observations on the impact of the proposed concentration.
    
    
11. Kaysersberg is a public limited company incorporated under French law, asubsidiary of the Netherlands Jamont NV group which is controlled jointly byJames River Corporation and Cragnotti & Partners, whose consolidated turnoverin 1993 was FF 4 billion 818 million. Kaysersberg is involved in the femininehygiene sector, principally in France and in Belgium. With its subsidiary VaniaExpansion, which markets sanitary towels and tampons, Kaysersberg was theleading operator in France in 1993 with an overall market share of more than 30%in value. Kaysersberg is also present in the household hygiene paper productssector, in particular through its Lotus brand, the adult incontinency sector and thearea of infant hygiene (baby nappies).
    
    
12. On 17 January 1994, following the withdrawal of its original notification, P&Gnotified the Commission under Article 4(1) of Regulation No 4064/89 of a newconcentration plan in which P&G proposed to acquire the entire share capital ofVPS and of other subsidiaries of GGS operating in related sectors.
    
    
13. In the context of that new plan the acquisition agreement concluded by P&G andGGS and a side agreement between P&G, GGS and VPS provided that VPS wouldseparate its 'baby nappy‘ business from its other activities and would transfer themto a separate company until the transaction had been completed and thatimmediately after the closing of the purchase of VPS, P&G would transfer theshares of that separate company to a trustee, who had been designated by P&G on22 December 1993, with a mandate to find a final buyer for those shares (points5 and 6 of the Decision).
    
    
14. Furthermore, the notification included an offer of a commitment by P&G not toacquire control of the 'non-Camelia‘ business of VPS's 'catamenials‘ activities,that is to say, the tangible and intangible assets related to the three brands Blümia,Femina and Tampona and to the activities of VPS as manufacturer of private labelsfor retailers (hereinafter referred to as 'the non-Camelia business‘) (point 8 of theDecision).
    
    
15. On 22 January 1994 the Commission published the notice provided for in Article4(3) of Regulation No 4064/89 in the Official Journal of the EuropeanCommunities (OJ 1990 C 19, p. 15). In point 4 of that notice the Commissioninvited 'interested third parties to submit their possible observations on theproposed operation‘.
    
    
16. On 24 January 1994, in reply to a questionnaire which the Commission had sent toit on 19 January, Kaysersberg provided the information requested regarding thegeographical market and the competitive situation in the feminine hygiene productssector and submitted to the Commission its observations regarding the impact ofthe proposed operation.
    
    
17. Kaysersberg sent further letters to the Commission on 14 March, 29 April, 18 and31 May 1994.
    
    
18. After examining the notification, the Commission decided on 17 February 1994,pursuant to Article 6(1)(c) of Regulation No 4064/89, to initiate proceedings inregard to sanitary towels on the ground that the notified concentration raisedserious doubts as to its compatibility with the common market.
    
    
19. On 30 March 1994 the Commission sent its statement of objections to P&G.
    
    
20. By letter of 12 April 1994 the Commission sent to Kaysersberg a copy of thestatement of objections pursuant to Article 15 of Commission RegulationNo 2367/90 of 25 July 1990 on the notifications, time limits and hearings providedfor in Council Regulation (EEC) No 4064/89 (OJ 1990 L 219, p. 5), in order toinform it of the nature and subject-matter of the procedure and to invite it tosubmit its views.
    
    
21. The statement of objections was essentially in the following terms.
    
    
22. First, the Commission observed that pursuant to the acquisition agreements thebaby nappy business of VPS was to be transferred to a separate company, whicha trustee designated by P&G on 22 December 1993 would be mandated to sell toa new purchaser. It deduced from this that the commitment formed an integralpart of the notification and for that reason, despite the objections the Commissionwould have had to any such acquisition, the statement of objections did not addressthat question (point 7 of the statement of objections). It also pointed out thatP&G had voluntarily offered a commitment not to acquire control of the non-Camelia business of VPS and explained that following the initiation of proceedingspursuant to Article 6(1)(c) of Regulation No 4064/89 P&G had confirmed thatthose commitments would remain in force, provided that the Commission adopteda decision under Article 8 of Regulation No 4064/89 finding that the whole of thenotified operation was compatible with the common market (points 8,9 and 10 ofthe statement of objections).
    
    
23. After observing that the notified operation was a concentration with a Communitydimension, the Commission stated that the proceedings were initiated in regard tosanitary towels. The evidence on which the Commission relied in its statement ofobjections may be summarized as follows.
    
    
24. As regards the relevant product market, the Commission considered that there wasa separate market for each feminine hygiene product, namely pantliners, tamponsand sanitary towels. As to the definition of the geographic market, the Commissionconsidered that the market for sanitary towels had a national dimension. In thatregard the Commission took into account in particular the high degree ofconcentration in Germany and in Spain, the high degree of brand loyalty fromcustomers, difficulties of access to retailers, the need for heavy investment inadvertising in order to establish the product and the unsuccessful nature of severalattempts to enter the market in recent years.
    
    
25. In its assessment of the concentration the Commission emphasized the rapidincrease in the value of the West European towel market since the introduction inthe early 1990s of new sophisticated products, such as Always, which broughtconsiderable added value in comparison with traditional products. In order toassess the market shares of the parties, the Commission considered that the mostappropriate measure was market share by value, in particular because of theestimated price differences of between 50 and 100% between premium brands andsecondary brands or own-label products, the predominance of heavily promotedbranded articles, and the need to take into account the financial strength of thecompanies, having regard to the buoyant nature of the premium products sector.
    
    
26. According to the Commission, on the national markets for sanitary towelsprincipally concerned by the concentration, market shares for 1993 were as follows(point 93 of the statement of objections);

    	GERMANY		SPAIN		AUSTRIA
    	value1993	volume1993	value1993	volume1993	value1993	volume1993
    P&G	36.3%	20.4%	79.8%	65.9%	24.6%	17.6%
    VP CAMELIA	24.5%	21.6%	1.4%	1.1%	13.9%	12.6%
    P&G+CAMELIA	60.8%	42%	81.2%	67%	38.5%	30.2%
    VP other brands	6.9%	12%	—	0.1%	2.9%	2.4%
    Johnson & Johnson	13.4%	9.2%	1.1%	0.8%	30.1%	24.8%
    Mölnlycke	—	—	—	—	—	—
    Kimberly-Clark	0.9%	0.8%	—	—	—	—
    Rauscher	—	—	—	—	17.8%	27.6%
    Private labels	12.5%	23.7%	10.6%	18.6%	9.2%	2.2%
    Others	5.1%	12.3%	7.1%	13.5%	1.5%	12.81%

    
    
    
27. The Commission observed that the market for sanitary towels was characterized,particularly in Germany, by high barriers to entry as a result, inter alia, of highbrand loyalty, the need to develop innovative products and to undertake large scaleadvertising campaigns, as well as the difficulty of gaining access to retailers. Moreover, the already high degree of concentration in Germany and in Spainbefore the operation had increased still further.
    
    
28. The Commission also took into account P&G's position on the sanitary towelmarket, which was particularly strong in the growth area of ultra-thin towels, itscommercial strength vis-à-vis retailers as a major supplier of products for regularconsumption, and its financial strength in relation to its competitors in the sanitarytowel sector. According to the Commission, the entry of potential competitors whomight challenge P&G's domination in Germany and Spain appeared unlikely havingregard to the various unsuccessful attempts to penetrate the German market madeby Mölnlycke and Kimberly Clark over the last 10 to 15 years and by Kaysersbergbetween 1970 and 1985.
    
    
29. In view of those factors, and in particular of the analysis of the market shares whichP&G would hold at the end of the operation, of the barriers to entry and ofpotential competition, the Commission considered that, given the factors inherentin the German, Spanish and Austrian markets for sanitary towels, the acquisitionof VPS by P&G, even after the divestment of VPS's baby nappy business andtaking account of P&G's commitment not to acquire control of the non-Cameliabusiness, would allow P&G to act independently of its customers and competitorsin those markets (point 145 of the statement of objections). With regard inparticular to the German market, the Commission considered that the acquisitionof VPS and its major German brand, Camelia, which is also the last majorindependent national brand, would make it more difficult for other entrants to gainaccess to the German market in that it would require them to establish themselvesdirectly on the market rather than through the acquisition of an already establishedundertaking (point 146 of the statement of objections).
    
    
30. The Commission therefore concluded that the concentration notified could beincompatible with the common market since it would be likely to create a dominantposition on the German and Austrian markets for sanitary towels and to strengthena dominant position in Spain as a result of which effective competition would besignificantly impeded in a substantial part of the common market within themeaning of Article 2(3) of Regulation No 4064/89 (point 151 of the statement ofobjections).
    
    
31. On 25 and 26 April the Commission held, in accordance with Articles 13 to 15 ofRegulation No 2367/90, an initial hearing of the parties to the concentration andthird parties, including Kaysersberg, which was followed on 6 May 1994 by a secondhearing of the parties to the concentration and third parties. On 9 May 1994Kaysersberg sent to the Commission a copy of the statements made by its managingdirector at the initial hearing.
    
    
32. On 27 May 1994 the Advisory Committee on concentrations met for the first timeand delivered an opinion which was unfavourable to the notified concentration(Opinion of the Advisory Committee on concentrations given at the 20th and 22ndmeetings on 27 May and 20 June 1994 concerning a revised preliminary draftdecision relating to Case IV/M.430 — Procter & Gamble/VP Schickedanz (II), OJ1994 C 379, p. 34, paragraphs 1 to 8).
    
    
33. On 10 June 1994 P&G proposed new commitments to the Commission relating tothe transfer of the Camelia business of VPS in order to remove the Commission'sobjections as to the compatibility of the proposed concentration with the commonmarket.
    
    
34. By letter of 13 June the Commission requested P&G to amend its proposals incertain respects. To that end the Commission sent to P&G an amended draftcommitment which took account of the changes requested and asked it also toprepare a non-confidential version of that draft so that third parties could beconsulted. By letter of 14 June 1994 P&G accepted the proposed amendments.
    
    
35. On Wednesday 15 June 1994 the Commission sent to Kaysersberg a letter fromP&G dated 15 June which contained the non-confidential version of the draftcommitments which had been accepted and informed it that it was being given anopportunity pursuant to Article 18(4) of Regulation No 4064/89 and Article 15 ofRegulation No 2367/90 to submit its written observations, which had to be receivedby the Commission at the latest on the morning of Monday 20 June 1994 in orderthat they might be sent to the Advisory Committee.
    
    
36. Under the non-confidential version communicated to Kaysersberg, P&G proposedcommitments regarding the Camelia business and including, (a) the Forschheimplant and the production lines dedicated to the manufacture of feminine hygieneproducts, (b) the Camelia brand name and (c) all other assets and liabilities thatformed part of or were necessary for the operation of the Camelia business. Thoseproposed commitments were as follows:
    
    '1.    P&G undertakes that, as soon as practicable after the Commission hasadopted a favourable decision under Regulation No 4064/89 and in any event nolater that 1 July 1994, it shall appoint Goldman Sachs International Limited(”Goldman Sachs") to act on its behalf in conducting good faith negotiations withinterested third parties with a view to selling the Business. P&G and GoldmanSachs shall agree on the latter's remuneration, it being understood that part of suchremuneration shall consist of a fee related to the consideration of the sale.
    
    2.    P&G undertakes that it shall give Goldman Sachs an irrevocable mandateto find a purchaser for the Business within [CONFIDENTIAL] of its appointment,it being understood that such purchaser shall be a viable existing or prospectivecompetitor independent of and unconnected to P&G and capable of maintainingand developing the Business as an active competitive force on the marketconcerned. P&G shall take all reasonable steps to encourage the relevantpersonnel currently employed in the Business, including sales and administrativepersonnel, to take up employment with such independent third party. P&G shallbe deemed to have complied with this undertaking if, within [CONFIDENTIAL],it has entered into a binding letter of intent for the sale of the Business, providedthat such sale is completed within [CONFIDENTIAL]. P&G undertakes to give,on an arm's length basis, all assistance requested by Goldman Sachs prior to thesale to the third party.
    
    3.    P&G alone shall be agree to accept any offer or to select the offer itconsiders best in case of a plurality of offers. The value of any such offers shall bedetermined by the price offered plus other obligations affecting the value of suchoffers.
    
    4.    P&G undertakes that, within [CONFIDENTIAL], the Forchheim plant shallbe rendered capable of being transferred to an independent third party and, mostparticularly, that the Forchheim plant is capable of being managed separately fromP&G.
    
    5.    Prior to the completion of the sale of the Business to a third party, P&Gshall ensure that the Business is managed as a distinct and saleable entity with itsown management, accounts and a sales distribution effort for the Business that isseparate from P&G's catamenials business. P&G further undertakes that theBusiness shall have its own management that shall be under instructions to manageit on an independent basis in order to ensure its continued viability and marketvalue, and that P&G shall provide sufficient financial resources to this end in theordinary course of business. Prior to the completion of the sale of the Business toa third party, P&G shall not integrate the Business into any P&G business unit. P&G further undertakes that it shall make no structural changes to the Businesswithout prior Commission approval.
    
    6.    P&G shall not obtain from the Business management any business secrets,know-how, commercial information, or any other industrial information of aconfidential or proprietary nature relating to the Business.
    
    7.    P&G undertakes that it shall cause Goldman Sachs to provide a writtenreport on a [CONFIDENTIAL] basis on any relevant developments in itsnegotiations with third parties interested in purchasing the Business, and that suchreports, together with supporting documentation, shall be furnished to theCommission. Such supporting documentation shall include a report prepared bythe management of the Business on its on-going commercial operations.
    
    8.    Any dispute between P&G and the third party purchasing the Businessarising out of or in the connection with the implementation of these undertakingsshall be submitted to independent arbitration to be mutually agreed between P&Gand such third party.‘
    
    
37. On 16 June 1994 P&G sent to the Commission a letter in which it confirmed thatthe commitments given on 14 June 1994 amended and replaced those offered on17 January 1994 in regard to VPS's feminine hygiene products and that,consequently, in the event of a favourable decision by the Commission, it would beentitled to acquire and retain control over VPS's non-Camelia business.
    
    
38. On Friday 17 June 1994 Kaysersberg sent its observations to the Commission. Inits letter Kaysersberg began by contending that the commitments proposed by P&Gmust be regarded as inadmissible because they were submitted at a very late stageand third parties were given only a short time within which to react. It then wenton to state the reasons for which it considered that the commitments proposedwere unsatisfactory and the amendments which it sought.
    
    
39. On 20 June 1994 the Advisory Committee on concentrations met for a second time. In its Opinion the Advisory Committee states that:
    
    '9.    (...) having taken into account the information received from theCommission on the remedies proposed by Procter & Gamble in its letter of15 June 1994 to solve the competition problems raised by the proposedconcentration, [the Committee] agrees with the Commission in finding theconcentration compatible with the Common Market and with the functioning of theEEA Agreement subject to the divestiture of the Camelia-branded femininehygiene products business.
    
    10.    (...) the said remedies suffice (...) if the following conditions are respected:
    
    (a)    the nomination of an independent trustee by Procter & Gamble to carry outthe divestiture of the Camelia-branded feminine hygiene products businessand its management independent from Procter & Gamble until the saiddivestiture has been carried out;
    
    (b)    the setting of a short deadline for carrying out the divestiture;
    
    (c)    the potential purchaser should have the financial resources and provenexpertise in consumer product markets to allow it to maintain and todevelop actively the Camelia-branded feminine hygiene products businessin competition with Procter & Gamble;
    
    (d)    the Camelia-branded feminine hygiene products business should bemaintained independent from Procter & Gamble until its divestiture;
    
    (e)    the Commission should have the right to examine in advance the profile ofthe potential purchasers notwithstanding Procter & Gamble's right tochoose the final purchaser;
    
    (f)    the Commission should maintain sufficient power of control and of decisionto ensure the correct fulfilment of the undertakings.
    
    11.    Furthermore, a minority of the Committee considers that Procter & Gambleshould be obliged to divest the secondary and private label brands of VPSchickedanz.‘
    
    
40. Following that meeting of the Advisory Committee, the final version of P&G'scommitments was prepared by the Commission and accepted by P&G.
    
    The contested decision of 21 June 1994
    
    
41. On 21 June 1994, in the light of the commitments given to it by P&G, theCommission adopted the contested decision declaring the concentration compatiblewith the common market and with the functioning of the EEA Agreement.
    
    
42. Article 1 of the operative part reads as follows:
    
    'Article one
    
    Subject to the full compliance with all conditions and obligations contained inProcter & Gamble's commitment vis-à-vis the Commission in respect of theCamelia-branded feminine hygiene business of VPS, as set out in Recital 186 of thisDecision, the concentration notified by Procter & Gamble GmbH on 17 January1994 relating to the acquisition of VP Schickedanz AG is declared compatible withthe common market and the functioning of the EEA Agreement.‘
    
    
43. That decision was notified to Kaysersberg, for information, on 27 June 1994.
    
    
44. The Decision may be summarized as follows.
    
    
45. As a preliminary point, the Commission observes that the commitment not toacquire control of VPS's baby nappy business forms an integral part of thenotification and for that reason, despite the objections the Commission would haveto any such acquisition, the Decision does not address that market (Decision, point7). As regards the offer by P&G, included in its notification, of a commitment notto acquire control of the non-Camelia business of VPS, the Commission states thatin the light of the objections raised by the Commission, P&G substantially alteredboth the brands to be divested and the terms of such a divestiture, and thussubstituted Camelia-branded feminine hygiene products for the non-Cameliaproducts of VPS (point 8 of the Decision).
    
    
46. After observing that the notified operation is a concentration with a Communitydimension, the Commission notes that the concentration concerns the followingproducts manufactured by VPS: household hygiene paper products, femininehygiene products, adult incontinence products, cotton products and certain personalbody care products, and that proceedings were initiated with respect to sanitarytowels.
    
    
47. As to household hygiene paper products, the Commission observes that P&G,although it is a market leader in the United States and Canada, is not active in thatsector in Europe and that, according to P&G, the strategic aim of the concentrationis to enter the European market for those products. The Commission states,moreover, that the market shares of VPS in that overall sector are modest in theCommunity and lie between 15 and 20% in Germany and that, for each productmarket considered separately, VPS will hold in Germany between 35 and 40% ofthe handkerchief market and between 15 and 20% of the market for toilet paper.
    
    
48. The Commission concludes as follows:
    
    'In the absence of any overlap between P&G and VPS in this sector and in thelight of VPS's limited market shares, the operation does not give rise to anycompetition concerns for these products‘ (point 13 of the Decision).
    
    
49. As to adult incontinence products, cotton products and cosmetics, the Commissionalso concludes, after analysing in particular the positions of P&G and VPS on thosemarkets, that the operation does not raise serious doubts as to its compatibility withthe common market (points 14 to 23 of the Decision).
    
    
50. As regards baby nappies, the Commission considers that, given P&G's marketshares in the Community of between 45 and 50%, its financial resources, advancedtechnologies and strong position in relation to retailers, the operation would, in theabsence of the commitment contained in P&G's notification, create a dominantposition for P&G despite the slight increase in market shares (points 24 to 26 ofthe Decision).
    
    
51. As to feminine hygiene products, the Decision, after a statement based essentiallyon all of the factors set out in the statement of objections (points 27 to 182 of theDecision), concludes, first, that the operation as notified with P&G's original offerto divest itself of VPS's non-Camelia feminine hygiene products business wouldenable P&G, as newly formed, to act independently of its customers andcompetitors on the German and Spanish markets for sanitary towels (point 183 ofthe Decision). It finds in particular that after the concentration P&G would holdmarket shares in Germany of between 60 and 65% by value and between 40 and45% by volume, its closest competitor having only 10 to 15% of the market byvalue and 5 to 10% of the market by volume, and adds that the acquisition by P&Gof VPS's Camelia-brand would make entry into the German market for otherentrants more difficult by obliging them to enter directly rather than through theacquisition of an existing undertaking (point 184 of the Decision).
    
    
52. The Commission then indicates that P&G has offered to modify the originalconcentration plan as notified by entering into commitments in regard to VPS'sCamelia business (point 186 of the Decision).
    
    
53. P&G's commitments, reproduced in the Decision, include the following:
    
    'P&G hereby gives the following undertakings to the Commission with respect toVP's Camelia-branded feminine hygiene products business, which comprises: (i) theForschheim plant and the production lines dedicated to the manufacture offeminine hygiene products; (ii) the Camelia brand name; (iii) all other assets andliabilities that form part of or are necessary for the operation of VP's Camelia-branded feminine hygiene products business (hereafter ”the Business").
    
    (1)    P&G undertakes that, as soon as practicable after the Commission hasadopted a favourable decision under Regulation (EEC) No 4064/89 and in anyevent no later than at closing of its acquisition of the shares of VP, it shall appointan independent trustee to be approved by the Commission, to act on its behalf inoverseeing the ongoing management of the Camelia Business to ensure itscontinued viability and market value and its rapid and effective divestiture from therest of P&G's activities (hereafter referred to as ”the Trustee"). The Trustee shallsimultaneously appoint Goldman Sachs International Limited (”Goldman Sachs")to act on its behalf in conducting good faith negotiations with interested thirdparties with a view to selling the Business (...).
    
    (2)    P&G undertakes that it shall give the Trustee an irrevocable mandate tofind a valid purchaser for the Business within [...], it being understood that such apurchaser shall be a viable existing or prospective competitor independent of andunconnected to P&G and, possessing the financial resources and proven expertisein consumer product markets, enabling it to maintain and develop the Business asan active competitive force in competition to P&G's catamenials business on thevarious markets concerned. [...]
    
    [...]
    
    (8)    P&G shall not integrate VP's secondary and own-label catamenial businessinto its own commercial and production structures for catamenials until the sale ofthe Camelia Business is completed.
    
    [...]‘ (point 186 of the Decision).
    
    
54. The Commission then states:
    
    'The Commission is satisfied that P&G's offer to divest a business including theCamelia towel brand will prevent P&G from acquiring a dominant position inGermany and from reinforcing its dominant position in Spain. Post-concentrationand post-divestment of Camelia the market structure in Germany and Spain willbe as follows, taking into account that P&G will not now divest the non-Cameliabusiness of VPS (¹):
    
    ___________________________
    
    ^{(1) Exact market shares deleted as business secret.}
    
    

    	Germany		Spain
    	Value %1993	Volume %1993	Value %1993	Volume %1993
    P&G VP other brands	35—40 5—10	20—2510—15	75—80 0	65—70 <1
    Total P&G	40—45	30—35	75—80	65—70
    VP Camelia	20—25	20—25	1—5	1—5
    Johnson & Johnson	10—15	5—10	1—5	<1
    Kimberly-Clark	<1	<1	—	—
    Private labels	10—15	20—25	10—15	15—20
    Others	5—10	10—15	5—10	10—15

    As can be seen, P&G will increase its share of the German market by 6.9% to atotal share of 43.2% by value with Camelia holding a 24.5% and J&J a 13.4%share. The increase in P&G's market share will be solely attributable to itsacquisition of VPS's secondary and store brand business (ie. non-premium brands)while P&G's existing Always business will be subject to competition from twosignificant suppliers of branded premium towels. In Spain, P&G's share willincrease by less than 0.1%. The Commission has therefore concluded that thecommitments offered by P&G in respect of the Camelia-branded feminine hygienebusiness of VPS are sufficient to prevent the creation or reinforcement of adominant position on the German and Spanish markets, or indeed elsewhere in theEEA‘ (Decision, point 187).
    
    Events following the Decision
    
    
55. By letter of 5 July 1994 P&G informed the Commission that negotiations regardingthe divestiture of the Camelia business of VPS had taken place with KimberlyClark and that the divestiture could take place upon or shortly after the finalclosing of the sale of VPS's assets to P&G.
    
    
56. On 20 July 1994 the Commission announced in a press release that the sale of VPSto P&G had been closed on 16 July 1994 and that at the same time the whole ofVPS's feminine hygiene products business (including the Camelia business) hadbeen sold to Kimberly Clark and that VPS's baby nappy business had been sold tothe Wirths group.
    
    
57. According to P&G, the intervener in the proceedings, the Camelia and Tamponabrands and the private brands were sold to Kimberly Clark and the Blümia marklicensed to that company on 16 July 1994. The Commission and P&G indicate thatVPS's Femina brand was acquired by Rewe, the German retail chain.
    
    Procedure and forms of order sought
    
    
58. By application lodged at the Registry of the Court of First Instance on19 September 1994 Kaysersberg brought the present action.
    
    
59. By application lodged at the Registry of the Court on 8 January 1995 P&G soughtleave to intervene in support of the form of order sought by the Commission and,pursuant to Article 35(2)(b) of the Rules of Procedure of the Court of FirstInstance, sought leave to use the English language both in the written and oralprocedures.
    
    
60. By letter lodged at the Registry of the Court on 1 February 1995 the applicantrequested that confidential treatment be given to certain documents in its file,should the application for leave to intervene be allowed.
    
    
61. By order of the President of the First Chamber, Extended Composition, of theCourt of 19 May 1995 P&G's application for leave to intervene was allowed andthe applicant's request for confidentiality granted in respect of several documentsin the file.
    
    
62. By order of 16 August 1995 (Case T-290/94 Kaysersberg v Commission [1995] ECRII-2249) the Court rejected the request submitted by P&G for derogation from therules on the use of languages as regards the written procedure, but granted P&Gleave to use English during the oral procedure.
    
    
63. Upon hearing the Report of the Judge-Rapporteur, the Court of First Instancedecided to open the oral procedure without any preparatory measures of enquiry. However, on 24 January 1997, as part of measures of organization of procedureunder Article 64 of the Rules of Procedure the Commission was requested to replyto certain written questions and to produce non-confidential versions of certaindocuments. On 19 February 1997 the Commission replied to the written questionsput by the Court and produced the documents requested.
    
    
64. The main parties and P&G presented oral argument and their replies to the oralquestions put by the Court at the hearing on 23 April 1997.
    
    
65. The applicant claims that the Court should:
    
    
    • annul the Commission Decision of 21 June 1994;
      
      
    • order the Commission to pay the costs.

    
    
    

66. The defendant contends that the Court should:
    
    
    • dismiss the application;
      
      
    • order the applicant to pay the costs.

    
    
    

67. The intervener contends that the Court should:
    
    
    • declare, without examining the substance of the case, that the applicationis inadmissible since the applicant has not shown a legal interest in bringingproceedings; or
      
      
    • dismiss the application as unfounded;
      
      
    • order the applicant to pay the costs, including the costs incurred by theintervener.

    
    
    

68. In its observations on the statement in intervention the applicant claims that theCourt should:
    
    
    • reject all the pleas raised by the defendant and the intervener;
      
      
    • order the intervener to pay the costs.

    Admissibility
    
    
    
    Summary of the arguments of the parties
    
    

69. In its application the applicant states that under the fourth paragraph of Article173 of the EC Treaty it is entitled to seek the annulment of the Decision. Itsubmits, first, that it was an active participant in the procedure leading up to theadoption of the Decision. Moreover, as a leading operator in France and Belgiumin the feminine hygiene, tissue paper and baby hygiene sectors, it is directly andindividually concerned since the operation is of such a nature as to restrict stillfurther its access to the German market, in particular the market for sanitarytowels. That is already a closed market and the applicant has attempted toestablish itself on it, but without success, despite continuous commercialinvestments and the closeness of its production plant. Finally, the Decisiondeprived it of the opportunity of acquiring the Camelia business, since it allowedP&G to dispose of that business to Kimberly Clark in non-transparentcircumstances.
    
    
70. The Commission has not submitted any observations as regards the admissibility ofthe action.
    
    
71. P&G, the intervener, considers that the action for annulment should be declaredinadmissible. It accepts that the Commission has not contested the admissibility ofthe present action and that, as an intervener, it is not entitled to raise an objectionof inadmissibility. It observes, however, that, in a similar case, the Court of Justiceconsidered the issue of admissibility of its own motion (Case C-225/91 Matra vCommission [1993] ECR I-3203, paragraph 13).
    
    
72. In the present case, according to the intervener, the Decision had no significantinfluence on the applicant's competitive position, so that it cannot be regarded asbeing directly and individually concerned within the meaning of Article 173 of theTreaty (Joined Cases 10/68 and 18/68 Eridania v Commission [1969] ECR 459). The intervener submits that it has not gained any market share in the femininehygiene sector, because, upon acquiring VPS, it divested itself not only of theCamelia business in accordance with the Decision, but also the non-Cameliabusiness. Similarly, it points out that it did not acquire any of VPS's business onthe baby nappy market. The market shares acquired in the household hygienepaper products sector are negligible.
    
    
73. Moreover, the Decision did not deprive the applicant of the possibility of acquiringthe Camelia business; nor has the applicant ever displayed any such intention,despite the divestiture commitment given by P&G.
    
    
74. Lastly, the applicant has no legal interest in bringing proceedings, since theannulment of the Decision would not compensate it in any way and, in particular,would not enable it to acquire the Camelia business. Furthermore, the Commissiontook the objections submitted by the applicant fully into account during theadministrative procedure.
    
    Findings of the Court
    
    
75. The Court observes that the defendant has not claimed that the action isinadmissible and had confined itself to requesting that it be dismissed on its merits. According to the fourth paragraph of Article 37 of the Statute of the Court ofJustice of the EC, which applies to the procedure before the Court of FirstInstance by virtue of the first paragraph of Article 46 of that statute, thesubmissions in the statement in intervention are to be limited solely to supportingthe form of order sought by one of the parties. Moreover, Article 116(3) of theRules of Procedure of the Court of First Instance provides that the intervener mustaccept the case as he finds it at the time of his intervention.
    
    
76. It follows that P&G is not entitled to raise an objection of inadmissibility and thatthe Court is not therefore required to consider the pleas of inadmissibility on whichit relies (judgments of the Court of Justice in Case C-313/90 CIRFS and Others vCommission [1993] ECR I-1125, paragraphs 20 to 22 and Case C-225/91 Matra vCommission, paragraph 12 and judgments of the Court of First Instance in CaseT-266/94 Skibsvaerftsforeningen and Others v Commission [1996] ECR II-1399,paragraph 39, and Case T-19/92 Leclerc v Commission [1996] ECR II-1851,paragraph 50).
    
    
77. In the circumstances of the present case, the Court considers that it is notnecessary to consider the admissibility of the action of its own motion.
    
    Substance
    
    
78. In support of its action the applicant puts forward five pleas in law alleging variousinfringements of essential procedural requirements and a sixth plea allegingmanifest errors of appraisal.
    
    
79. The first plea alleges a lack of real and serious consultation of the AdvisoryCommittee on concentrations, contrary to Article 19(5) and (6) of RegulationNo 4064/89. The second plea is based on infringement of Article 18 of RegulationNo 4064/89 in that the applicant was not placed in a position in which it couldsubmit its observations on the substance of P&G's commitments. In its third pleathe applicant complains that the Commission consented to a material amendmentof the notification, contrary to Articles 6 and 8 of Regulation No 4064/89 andSection I of Regulation No 2367/90. The fourth plea alleges infringement ofgeneral principles of Community law, the provisions of Regulation No 4064/89 andRegulation No 2367/90 in that the Commission failed to observe sufficient andreasonable time-limits before adopting the Decision. The fifth plea alleges failureto state the reasons on which the Decision was based, contrary to Article 190 of theEC Treaty. Lastly, the sixth plea alleges infringement of Articles 2 and 8 ofRegulation No 4064/89 in that the Commission committed manifest errors ofappraisal in regard to the effects of the concentration on various markets.
    
    The first plea: lack of genuine and serious consultation of the Advisory Committee
    
    Arguments of the parties
    
    
80. The applicant claims that the consultation of the Advisory Committee did not takeplace under the conditions laid down by Article 19(5) and (6) of RegulationNo 4064/89. The Advisory Committee did not have the necessary time in which toconsider P&G's proposed commitments in regard to the sale of Camelia and toissue a genuine and considered opinion on the concentration plan. The AdvisoryCommittee was convened by the Commission on 15 June 1994 and it met on20 June 1994, that is to say less than 14 days after the invitation, contrary to therequirements of Article 19(5). The Commission has not shown that in this case itshortened that period, exceptionally, in order to avoid serious harm to P&G.
    
    
81. Furthermore, the documents sent to the Advisory Committee for the purpose ofits meeting did not enable it to obtain a true and correct understanding of theconcentration plan. Thus, the Advisory Committee gave its opinion without beingaware of the real importance of VPS's non-Camelia business, since the originalcommitment to divest that business was still part of P&G's proposed commitmentsof 15 June which had been submitted for scrutiny by the Committee. Moreover,the arrangements for divesting the Camelia business set out in the proposal of15 June were substantially altered following the meeting of the Committeeinasmuch as it was initially provided that P&G should sell that business to a thirdparty of its choice, whereas the final commitments proved to be more restrictive.
    
    
82. The Commission contends that according to the case-law a failure to observe the14-day rule is not in itself such as to vitiate a decision adopted on the basis ofRegulation No 4064/89, where the invitation was sent in circumstances whichenabled the Committee to give its opinion in full knowledge of the facts (CaseT-69/89 RTE v Commission [1991] ECR II-485). Moreover, where concentrationsare concerned, the shortness of the periods which characterize the general schemeof Regulation No 4064/89 should be taken into account (Case T-83/92 ZunisHolding and Others v Commission [1993] ECR II-1169, paragraph 38). TheCommission states that by virtue of the last sentence of Article 19(5) of RegulationNo 4064/89 it may, in exceptional cases, shorten the period of 14 days in order toavoid serious harm to one or more of the undertakings concerned by aconcentration. Although not suggesting that there was a risk of serious harm toP&G, the Commission contends that it had grounds for fearing a deterioration inthe situation of VPS if a rapid decision were not taken.
    
    
83. The Commission considers, in any event, that, in view of the circumstances of thiscase, the time allowed to the Advisory Committee for considering P&G's proposedcommitments of 15 June, that is to say ultimately to sell the Camelia business, wassufficient to enable it to give its opinion in full knowledge of the facts. It observesthat the national authorities were closely and continuously involved in theprocedure, in particular by the despatch of the main documents from the file andthe holding of two formal hearings, and that the Committee had already met fora first time on 27 May 1994.
    
    
84. Furthermore, the terms of P&G's final commitment, namely not to acquire theCamelia business, did not differ substantially from the proposals of 15 June whichwere sent to the Advisory Committee. Only the arrangements for implementingthem were strengthened following its opinion. As regards P&G's originalcommitment not to acquire the non-Camelia business, the Commission contendsthat it was still current when the Advisory Committee met and that since only aminority of the Committee took the view that P&G should also divest itself of thatbusiness, it decided, in accordance with the majority opinion, not to require P&Gto implement it.
    
    
85. The intervener states that the final amendments to its proposals of 15 June 1994,which were accepted by it following the meeting of the Committee, are essentiallyprocedural in nature and were made by the Commission in order to take accountof the observations of the national authorities and third parties. The Commissiontherefore fully took into account the opinion expressed by the Advisory Committee,even though it is not bound by its opinions. Moreover, it claims that no objectionwas raised by the Advisory Committee as regards the period within which it wasconvened.
    
    Findings of the Court
    
    
86. As a preliminary point, it should be noted that, pursuant to Article 19(3) ofRegulation No 4064/89, the Advisory Committee on concentrations is to beconsulted before any decision is taken, inter alia, pursuant to Article 8(2) of thatregulation. Article 19(5) of the regulation provides that the Committee is to meetnot earlier than 14 days after the invitation is sent, but that the Commission mayexceptionally shorten that period as appropriate in order to avoid serious harm toone or more of the undertakings concerned by a concentration. Article 19(6) ofthe regulation provides, moreover, that the Commission 'shall take the utmostaccount of the opinion delivered by the Committee‘.
    
    
87. It is not disputed in this case that when the Advisory Committee was convened forits second meeting, of 20 June 1994, the 14 days' notice referred to in Article 19(5)of Regulation No 4064/89 was not complied with. The Court observes, moreover,that, while referring to its concern of a possible deterioration in VPS's situation ifa decision had not been rapidly adopted, the Commission does not allege that itshortened the period for convening the Advisory Committee in order to avoidserious harm to VPS or P&G. Furthermore, according to the uncontestedobservations of the applicant, neither of those two undertakings requested theCommission during the administrative proceedings to apply Article 7(4) of theRegulation under which the Commission may, exceptionally, authorize the carryingout of a concentration in the course of the proceedings in order to prevent seriousdamage to one or more undertakings concerned by a concentration.
    
    
88. However, the Court considers that, even in the absence of exceptionalcircumstances relating to the risk of serious harm within the meaning ofArticle 19(5) of Regulation No 4064/89, the failure to comply with the period ofnotice for convening the Advisory Committee is not in itself such as to render theCommission's final decision unlawful. That 14-day period constitutes a purelyinternal rule of procedure, like the period for convening the Advisory Committeeon cartels and dominant positions laid down in Article 10(5) of Regulation No 17(Council Regulation of 6 February 1962, First Regulation implementing Articles 85and 86 of the Treaty, OJ, English Special Edition 1959-1962, p. 87, 'RegulationNo 17‘), which also provides that the Committee is to be consulted 'not earlierthan fourteen days after dispatch of the notice convening it‘. It is settled law thatthe failure to comply with that rule can render the Commission's final decisionunlawful only if it is sufficiently substantial and it had a harmful effect on the legaland factual situation of the party alleging a procedural irregularity (RTE vCommission, cited above, paragraph 27). That cannot be the case where theAdvisory Committee in fact had a sufficient period of time to enable it to gainknowledge of the important factors in the case and was able to give its opinion infull knowledge of the facts, that is to say, without having being misled on anessential point by inaccuracies or omissions. In such circumstances, the failure tocomply with the period of notice for convening the Committee cannot have anyeffect on the outcome of the consultation procedure or, as the case may be, on theterms of the final decision.
    
    
89. In the present case, it should first be noted that the Advisory Committee itself didnot object to its meeting taking place at the date fixed by the Commission, that isto say, less than 14 days after it was convened.
    
    
90. Moreover, the Court considers that it is apparent from the opinion of the AdvisoryCommittee itself that, despite the shortness of the time which had been allowed toit, the Committee was able to express its view in full knowledge of the facts on thecommitments offered by P&G and, accordingly, on the Commission's draft decision. While declaring itself to be in agreement with the Commission in considering thatthe commitments regarding the divestiture of the Camelia business were sufficientto ensure the compatibility of the operation with the common market and theEuropean Economic Area, the Committee also expressed the view that certainaspects should be clarified and applied in practice. Those aspects were thenomination of a trustee, the setting of a short deadline for the divestiture, thequalities of the potential purchaser, the independence of the Camelia managementuntil the divestiture was completed and, finally, the possibility for the Commissionto consider the qualities of potential purchasers and to oversee fulfilment of thecommitments (see paragraph 39 above). It is therefore clear that, despite the factthat the period of notice for convening it had not been observed, the AdvisoryCommittee nevertheless had the time necessary within which to formulate preciserecommendations regarding the circumstances in which, in its opinion, the proposeddivestiture of VPS's Camelia business should be carried out.
    
    
91. The Court finds, furthermore, that those recommendations of the Committeeconcerning the detailed arrangements for the divestiture of the Camelia businesswere essentially included in full in the final version of the commitments drawn upfollowing its meeting. In particular, the final form of the commitments, as set outat point 186 of the Decision, provides that a trustee is to be appointed by P&G andapproved by the Commission by closing of the acquisition of VPS in order toensure the transfer of the Camelia business to a viable purchaser and also that thepurchaser will be able to develop the Camelia business in such a way as to competewith 'P&G's catamenials business on the various markets concerned‘ (seeparagraph 53 above). In that regard, the applicant's argument to the effect thatthe detailed arrangements for the divestiture of the Camelia business were,therefore, substantially amended following the meeting of the Committee, in thatthey were made more strict, is not such as could demonstrate that the Committeewas misled in regard to an essential point. Inasmuch as those amendments weremade precisely on the basis of the Advisory Committee's recommendations in orderto strengthen the arrangements for implementing P&G's commitment to divestitself of that business, the amendments so made, far from proving that theCommittee was unable to give its opinion in full knowledge of the facts, show, tothe contrary, that the Commission took the utmost account of the Committee'sopinion, in conformity with the requirements of Article 19(6) of RegulationNo 4086/89.
    
    
92. Nor, in the Court's opinion, is it possible to uphold the applicant's argument thatthe Advisory Committee could not have assessed the real importance of the non-Camelia business on the ground that P&G's proposed commitments of 15 June1994, which were communicated to it when it was convened, did not provideexpressly for the withdrawal of the original commitment whereby P&G was todivest itself of that business.
    
    
93. Admittedly, P&G's proposed commitments, as sent to the Advisory Committee, didnot contain any express stipulation as to what would happen to the non-Cameliabusiness of VPS and it was only by letter of 16 June, that is to say, after theconvocation of the Advisory Committee, that P&G confirmed to the Commissionthat it intended to retain that business.
    
    
94. However, the Court finds, first, that neither the absence of a provision relating tothe non-Camelia business in P&G's proposed commitments communicated to theAdvisory Committee on 15 June 1994 nor the fact that P&G expressly informed theCommission, after the Advisory Committee was convened, of its intention to retainthat business were such as to prevent the Committee from expressing its views onthe question whether P&G should also be compelled to divest itself of the non-Camelia business. That interpretation is confirmed by the fact that the AdvisoryCommittee's opinion states that only a minority of its members considered, at theend of the meeting, that 'Procter & Gamble should be obliged to divest thefeminine hygiene protection businesses under the ”own-label and secondary brands"of VPS Schickedanz‘ (see paragraph 39 above and paragraph 11 of the opinion ofthe Advisory Committee). It follows that, as is apparent from the uncontestedobservations of the Commission, the Advisory Committee was in any eventinformed of P&G's intentions in regard to the non-Camelia business at the timewhen its meeting commenced.
    
    
95. Second, consideration of the file in this case has not brought to light anything tosuggest that the Advisory Committee did not have all the necessary evidence inorder to assess the importance of VPS's non-Camelia business. On the contrary,it is apparent that the authorities of the Member States were closely and constantlyassociated with the procedure in which the proposed concentration was examinedand that their representatives in the Advisory Committee were thus in a positionto acquaint themselves, at the time of the second meeting, with all the importantevidence in the file concerning, in particular, the market share of that business. Apart from the fact that, in accordance with Article 19(1) of RegulationNo 4064/89, such an association involves the despatch of the notification and themost important procedural documents, it is apparent from the Court's file that inthis case the representatives of the Member States also took part in the formalhearings organized by the Commission on 25-26 April and 6 May 1994, duringwhich the notifying parties and the third parties were heard, and met for the firsttime in the Advisory Committee on 27 May 1994 in order to give their views on theCommission's first draft decision. Although the Committee then gave its opinionon the basis of a draft decision prohibiting the concentration, the fact remains thatthe appraisal of the operation, as originally notified, necessarily entailed an analysisof the scope of the commitment, then proposed by P&G, to divest itself of the non-Camelia business of VPS, and to that end, an appraisal of the importance of thatbusiness on the relevant market.
    
    
96. In those circumstances, and having regard to the fact that there is no allegation offailure to communicate new and significant evidence concerning the importance ofthe non-Camelia business to the Advisory Committee, the Court considers that theCommittee was able to give its opinion in full knowledge of the facts as regards thenecessity for P&G to divest itself of that business.
    
    
97. It follows that the first plea must be rejected as unfounded.
    
    The second plea: failure to consult third parties on P&G's commitments
    
    Arguments of the parties
    
    
98. The applicant claims that the procedure for consulting 'interested competitors‘ wasnot complied with, contrary to Article 18(1), (3) and (4) of Regulation No 4064/
    
    
99. Referring to the judgment in Case 85/76 Hoffmann-La Roche v Commission [1979]ECR 461, it submits that it was not placed in a position in which it could effectivelymake known its point of view regarding P&G's commitments, since the Commissiongave it only a period of two working days in which to submit its observations onP&G's proposals and did not send to it, for a preliminary view, the final version ofP&G's commitments, despite the amendments subsequently made to thoseproposals. Consequently, it was not able to comment on the situation created byP&G's acquisition of VPS's non-Camelia business, because the proposedcommitments of P&G communicated to the third parties on 15 June 1994 gave nogrounds for concluding that the original commitment by P&G to divest itself of thenon-Camelia business had been withdrawn.
    
    
100. The applicant contests the Commission's argument that third-party undertakingsmay only rely on Article 18(4) of Regulation No 4064/89. It claims that the case-law on which the Commission relies, relating to the procedural rights of thirdparties in the context of the application of Regulation No 17, is irrelevant in thepresent case inasmuch as the reasoning adopted is not transposable to theimplementation of Regulation No 4064/89; moreover, the facts of the cases citedwere different.
     
     
101. In any event, even supposing that there is a difference in treatment vis-à-vis theundertakings referred to in Article 18(1) (2) and (3) of Regulation No 4064/89, theapplicant considers that Article 18(4) of that regulation requires that it should beheard at an appropriate time by the Commission and on the basis of fullinformation. Third parties are entitled to participate in the administrativeprocedure in order to safeguard their legitimate interests (Case T-17/93 MatraHachette v Commission [1994] ECR II-595). Respect for the right of competitorsto intervene in the procedure is all the more necessary in the context of control ofconcentrations in view of the difficulty of re-establishing, after the event, thesituation which existed prior to the concentration. Moreover, the reduction in therights of third parties owing to the absence of a complaints procedure should becompensated for by their being given the opportunity to gain awareness of all thecommitments given by the parties during the procedure. Furthermore, underRegulation No 17 the complainants are informed of the outcome of thecommitments given by the undertakings with which the complaint is concerned andthe Commission adopts a final decision only after receiving the complainantsobservations in that regard (Joined Cases 142/84 and 156/84 BAT and Reynolds vCommission [1987] ECR 4487).
     
     
102. The Commission contends that Article 18(1), (2) and (3) of Regulation No 4064/89refer only to the undertakings interested by a concentration, in the present caseP&G, GGS and VPS, and not to third-party undertakings such as the applicant,which can, therefore, rely only on Article 18(4) (Case T-3/93 Air France vCommission ('Dan Air‘) [1994] ECR II-121, paragraph 81). Furthermore, onseveral occasions the Court of Justice and the Court of First Instance have pointedout the distinction between the right of the interested undertakings to be heard andthe rights of third parties in the various procedural regulations concerningcompetition matters (Case 43/85 Ancides v Commission [1987] ECR 3131; BAT andReynolds v Commission; judgment in Matra Hachette v Commission, cited above). As regards the argument that no comparison can be made between the procedurefor the control of concentrations and the implementation of Articles 85 and 86, theCommission observes that the controls which it carries out under Articles 85, 86and 92 to 94 of the Treaty and under Regulation No 4064/89 aim to ensure, in acomplementary fashion, a system of undistorted competition in the commonmarket. As regards the absence of a complaints procedure in the context of thecontrol of concentrations, the Commission replies that this was the choice of theCommunity legislature and that, in any event, Article 4(1) and (3) of RegulationNo 4064/89 requires the undertakings which are parties to a concentration with aCommunity dimension to notify it and requires the Commission to publish the factsuch notification in the Official Journal of the European Communities.
     
     
103. In the present case the Commission considers, first, that it did not infringeArticle 18(4) of Regulation No 4064/89 by allowing Kaysersberg a period of onlytwo working days in which to consider the commitments proposed by P&G. Itclaims that, in view of its participation throughout the procedure, the applicantknew that the question of the resale of Camelia was the principal obstacle to theauthorization of the operation and that it could not have been caught unawares byP&G's proposed commitments. Furthermore, the fact that the applicant sent itsobservations to the Commission on 17 June instead of 20 June shows that it wasable effectively to submit its point of view.
     
     
104. The Commission considers, second, that it did not infringe the applicant'sprocedural rights by not communicating to it the final version of P&G'scommitments for the purpose of inviting its observations on them. In the firstplace, unlike the undertakings referred to in Article 18(1) of RegulationNo 4064/89, third parties do not have a right to be heard at all stages of theprocedure in which a concentration is examined. Moreover, P&G's finalcommitments take ample account of the observations of third parties and inparticular those of the applicant, since the procedural arrangements for the sale ofCamelia were strengthened and the third parties had stressed throughout theprocedure that P&G's original commitment to sell VPS's non-Camelia business wasinsignificant. The Commission concludes from this that it was not obliged toconsult the third parties in regard to the final version of the commitments, since,particularly in the light of their previous observations, it considered that thosecommitments avoided any risk of a dominant position being created. To adopt thecontrary approach might have made it impossible for the Commission to observethe time-limits laid down in Regulation No 4064/89.
     
     
105. P&G considers that under Article 18(4) of the regulation third parties have nomore than a right to receive basic information concerning the notified operationand that the Commission is in no way required to send to them, for theirobservations, the proposed commitments drawn up in the course of the procedure. The Commission therefore permitted the third parties to make known their pointsof view to an extent which exceed its obligations under Regulation No 4064/
     
     
106. Furthermore, the applicant has not shown that, if the consultation procedure hadbeen conducted differently, the terms of the Decision would have been different;consequently, no procedural defect has been shown to exist.
     
     Findings of the Court
     
     
107. The Court observes in limine that it clearly follows from the provisions of Article 18of Regulation No 4064/89 on 'the hearing of the parties and of third persons‘ thatthe procedural position of third parties, such as the applicant, cannot be equatedwith that of the interested persons, undertakings and associations of undertakingsreferred to in the first three paragraphs of that article. While the personsinterested by the concentration in question, namely the parties to the draftconcentration submitted for examination by the Commission, enjoy the specificguarantees laid down in those provisions in order to ensure that their rights ofdefence are observed in the course of the administrative procedure, Article 18(4),in contrast, gives to third parties, since they are merely liable to suffer theincidental effects of the decision, only the right to be heard by the Commission,provided that they have so requested and have shown that they have a sufficientinterest for that purpose (Case T-96/92 CCE de la Société Générale des GrandesSources and Others v Commission [1995] ECR p. II-1213, paragraph 56; and thejudgment in Dan Air, cited above, paragraph 81).
     
     
108. Contrary to the applicant's submissions, that interpretation is confirmed by thejudgment in Ancides v Commission, cited above, in which it was held that qualifyingthird parties cannot be equated with interested persons in the context of RegulationNo 17, Article 19(2) of which expressly provides, in identical terms to those ofArticle 18(4) of Regulation No 4064/89, that third parties showing a sufficientinterest are to be heard solely upon their request (see also CCE de la SociétéGénérale des Grandes Sources, cited above, paragraph 56). The fact that, in thatcase, the third party had not asked to be heard in the procedure before theCommission is irrelevant to the question as to what provisions are applicable tothird parties in the context of Regulation No 4064/89. Similarly, the applicant'sclaim that the judgments in BAT and Reynolds and Matra Hachette, cited above,concerned the access of third parties to the file cannot in any way call into questionthe fact that under Regulation No 4064/89 only Article 18(4) applies to thirdparties.
     
     
109. It follows that the applicant, as a third party to the procedure, cannot invokeguarantees identical to those granted to interested persons and, in particular, therights conferred on them by Article 18(1) and (3), which provides, inter alia, thatthose persons must be given the opportunity, before the adoption of any decisiontaken under the second subparagraph of Article 8(2) 'of making known their viewson the objections against them‘ and that 'the Commission shall base its decisiononly on the objections on which the parties have been able to submit theirobservations‘.
     
     
110. However, although the procedural rights of third parties are not as extensive as therights granted to the interested persons in order to ensure their rights of defence,it is nevertheless the fact that, in so far as they show a sufficient interest, qualifyingthird parties have a right under Article 18(4) of Regulation No 4064/89 to be heardif they have so requested. To that end, Article 15(1) of Regulation No 2367/90states that if third parties showing a sufficient interest apply to be heard pursuantto Article 18(4) of Regulation No 4064/89, 'the Commission shall inform them inwriting of the nature and subject matter of the procedure and shall fix a time-limitwithin which they may make known their views‘. Under Article 15(2) 'the thirdparties referred to in paragraph 1 above shall make known their views in writingor orally within the time-limit fixed. They may confirm their oral statements inwriting‘. On the other hand, where third parties showing a sufficient interest donot ask to be heard, Article 15(3) provides that the Commission 'may ... afford to[them] the opportunity of expressing their views‘, but does not impose anyobligation on it to provide information.
     
     
111. It follows from those provisions taken as a whole that third-party undertakingswhich are competitors of the parties to the concentration have a right to be heardby the Commission, if they so request, in order to make known their views on theharmful effects on them of the notified concentration plan, but such a right mustnevertheless be reconciled with the observance of the rights of the defence andwith the primary aim of the regulation, which is to ensure effectiveness of controlas well as legal certainty for the undertakings to which the regulation applies (see,for example, the Order of the President of the Court of First Instance in CaseT-322/94 R Union Carbide v Commission [1994] ECR II-1159, paragraph 36).
     
     
112. It is in the context of this system for the protection of the respective rights ofinterested parties and third parties that it is, consequently, necessary to determinewhether in the present case the applicant's procedural rights were disregarded onaccount of the fact that it was not placed in a position in which it could effectivelymake known its views on the commitments given by P&G. In that regard, theapplicant claims that it did not have a sufficient period of time within which tocomment on the proposals submitted by P&G on 15 June 1994 and that it was notconsulted on the final version of the commitments, under which P&G wasauthorized to retain the non-Camelia business.
     
     
113. The Court finds, first, that, as is clear from the file, before being informed by theCommission on 15 June 1994 of the proposed commitments submitted by P&G, theapplicant, as a qualifying third party, was closely associated with the procedure andin particular received, following its request to be heard in accordance withArticle 15(1) of Regulation No 2367/90, a copy of the statement of objectionsaddressed to P&G, from which it was apparent that P&G's acquisition of VPS andits Camelia brand was liable to lead to the creation of a dominant position on theGerman market for sanitary towels. In addition to the letters which it sent to theCommission, the applicant also participated in the formal hearings which took placeon 25 and 26 April and 6 May 1994 and at the first of those hearings stressed, interalia, the dangers of the acquisition by P&G of Camelia.
     
     
114. The Court next points out that it was in that context, in which it was apparent thatthe acquisition by P&G of VPS's Camelia business constituted, both in the view ofthe Commission and that of the applicant, the essential obstacle to authorizing theproposed concentration, that by fax dated 15 June 1994 the Commission sent to theapplicant, on the basis of Article 15 of Regulation No 2367/90, a non-confidentialversion of P&G's proposed commitment not to acquire VPS's Camelia business andthat it requested it to make known its views before 20 June 1994. It is apparentfrom the file that in its letter of 17 June the applicant was able to submitsubstantial observations on the commitment offered by P&G and that it requested,in particular, modifications to the arrangements for the divestiture, certain of which,relating to the capacities of the potential purchaser and the need to make thechoice of the purchaser subject to the Commission's prior authorization and toguarantee the independence of the assets of the Camelia business, were adoptedin substance in the final version of the commitments.
     
     
115. In those circumstances, and having regard to the fact that Article 15(2) ofRegulation No 2367/90 does not lay down any specific obligation in regard to thelength of the period fixed by the Commission, the Court considers that the merefact that the applicant had only a period of two working days within which to makeits observations on the amendments proposed by P&G to the plan is not, in thepresent case, such as to show that the Commission failed to have regard for itsright to be heard under Article 18(4) of Regulation No 4064/89. Thatinterpretation is all the more called for since, although the legitimate interest ofqualifying third parties to be heard may require them to be allowed a sufficientperiod for that purpose, such a requirement must, nevertheless, be adapted to theneed for speed, which characterizes the general scheme of Regulation No 4064/89and which requires the Commission to comply with strict time-limits for theadoption of the final decision, failing which the operation is deemed compatiblewith the common market (see the judgment in Dan Air, cited above, paragraph 67,and the order of the President of the Court of First Instance in Case T-96/92 RCCE de la Société Générale des Grandes Sources and Others v Commission [1992]ECR II-2579, paragraph 30).
     
     
116. It follows that the complaint that an insufficient period was granted to the applicantwithin which to make known its views on P&G's proposed commitments isunfounded.
     
     
117. As regards the failure to send to the applicant, for its prior opinion, the finalversion of the commitments made by P&G with a view to the amendment of theoriginal concentration plan, the Court points out that, by this complaint, theapplicant is claiming in substance that it was not enabled to be heard on theacquisition by P&G of the non-Camelia business. In that regard, it should bepointed out that P&G's proposed commitments sent to the applicant on 15 June1994 did not contain any stipulation regarding VPS's non-Camelia business and thatit was only by letter of 16 June 1994 that P&G confirmed to the Commission thewithdrawal of its original offer not to acquire that business, although the applicantwas not expressly advised of that fact by the Commission.
     
     
118. However, the Court observes, first, that, despite the absence of any provisionstipulating what should happen to the non-Camelia business in P&G's proposedcommitments sent to the applicant on 15 June 1994, the applicant could notlegitimately expect at that date that P&G would maintain its original commitmentnot to acquire the non-Camelia business of VPS or that the Commission wouldmake its approval of the concentration plan subject to a condition that thatcommitment be maintained.
     
     
119. First, as is clear from point 10 of the statement of objections addressed to P&G,on which the applicant was invited to submit its views, P&G expressly specified thatthis offer of a commitment would be maintained only in so far as the operation wasdeclared compatible in the form notified, so that any subsequent modification ofthe original concentration plan necessarily replaced that commitment offered byP&G at the time of the notification. Moreover, the Court considers that theapplicant has not adduced any evidence to show that the Commission indicatedduring the proceedings that it intended to authorize the operation only on conditionthat the whole of VPS's feminine hygiene business was disposed of. On thecontrary, it is clear that the applicant had itself pointed out to the Commission thatthe original proposal was inappropriate, since it indicated in its observations of31 January 1994 that 'the changes proposed by P&G are not of such a nature asto reduce its dominant position on the German market for sanitary towels,particularly on account of the decreasing and almost marginal share of productsunder the Blümia and Femina brands‘. Those factors therefore show that, at thetime when it was informed of the commitments proposed by P&G on 15 June 1994,the applicant was in possession of all the relevant information for the purpose ofmaking known its views and that the onus was, therefore, on it to make its positionknown as regards the adequacy or inadequacy of the proposed commitments.
     
     
120. The Court finds, second, that in its letter of 17 June 1994, referred to above, theapplicant in fact expressed a wish that P&G should undertake to divest itself of thewhole of VPS's feminine hygiene businesses to a single purchaser, in order that thelatter would carry sufficient weight to compete effectively on the market, which, inthe circumstances of this case, necessarily meant that the applicant was opposedto P&G's being authorized to retain VPS's non-Camelia business. Thisinterpretation is confirmed by the applicant's own observations at the hearing,namely that it had therefore been able to make known its views regarding the needfor P&G to divest itself of the Camelia and non-Camelia businesses of VPS.
     
     
121. It is therefore clear that in the present case the applicant was able to make knownits position concerning the extent and nature of the commitments which itconsidered should be given by P&G and imposed by the Commission as a conditionor obligation in order for the operation to be regarded as compatible with thecommon market. Having regard to the abovementioned principles, the Courtconsiders that the legitimate interest of qualifying third parties, such as theapplicant, to make known their views on the harmful effects of the concentrationon competition is fully safeguarded where, as in the present case, they are placedin a position, on the basis of all information communicated to them by theCommission during the procedure initiated under Article 6(1)(c) of RegulationNo 4064/89 and, in particular, of the offers of commitments submitted by theundertakings concerned, to make known their views on the amendments proposedto the concentration plan with a view to removing the serious doubts existing as toits compatibility with the common market. In such a case, there is a sufficientguarantee that the considerations put forward by the competing third parties can,if appropriate, be taken into account by the Commission in determining whetherthe concentration is in conformity with Community law and, in particular, whetherthe commitments proposed by the undertakings concerned appear to it to besufficient for that purpose.
     
     
122. Contrary to the applicant's submissions, the Commission is not also required underArticle 18(4) of Regulation No 4064/89 to send to qualifying third parties, for theirprior comment, the final terms of the commitments given by the undertakingsconcerned on the basis of the objections raised by the Commission as a result, interalia, of the observations received from third parties in regard to the proposedcommitments offered by the undertakings in question. As has just been stated(paragraph 107 above), qualifying third parties do not enjoy guarantees identicalto those given to interested persons in order to ensure that their rights of defenceare respected in the course of the proceedings before the Commission. Inparticular, it is only to those persons that Article 18(1) gives an opportunity, atevery stage of the procedure up to the consultation of the Advisory Committee, ofmaking known their views on the objections against them, in particular where theCommission envisages, as in the present case, attaching conditions and obligationsto its decision, in accordance with the second subparagraph of Article 8(2) ofRegulation No 4064/89, which are intended to ensure that the undertakingsconcerned comply with the commitments which they have entered into. It followsthat it is only the undertakings concerned and the other interested persons, whichmust — since they are, as a rule, the sole addressees of the condition imposed — beplaced in a position in which they may effectively make known their views on theobjections raised to the proposed commitments in order to enable them, if they sowish, to make the necessary amendments to them and to ensure the respect of theirrights of defence.
     
     
123. Nor is it possible to accept the applicant's argument that, like the authors ofcomplaints within the meaning of Article 3(2) of Regulation No 17, qualifying thirdparties should be informed of the outcome of the negotiations entered into by theCommission with the undertakings concerned. In its judgment in BAT and Reynoldsv Commission, cited above, on which the applicant relies, the Court of Justice heldthat the rights of complainants had been fully safeguarded since, in order to enablethem to submit any supplementary observations, they had been informed by letterssent to them pursuant to Article 6 of Commission Regulation No 99/63/EEC of 25July 1963 on the hearings provided for in Article 19(1) and (2) of CouncilRegulation No 17 (OJ, English Special Edition [1963-1964], p.47) of the outcomeof the negotiations, in the light of which the Commission intended to close the fileon their complaints. The Court observes that in the present case the version of thecommitments addressed to the applicant in order that it might give its views alsocorresponded to what, in the Commission's view, was sufficient for the issue of adeclaration of compatibility to be envisaged and that the subsequent amendmentswere intended specifically to take account of the supplementary observations ofthird parties and of the Advisory Committee. Consequently, the applicant'sargument based on the judgment in BAT and Reynolds v Commission, cited above,is not such as to show that the Commission did not observe its procedural rights. Furthermore, and in any event, inasmuch as Regulation No 4064/89 does notprovide for any complaints procedure for the purpose of having an infringementof the rules of the Treaty established, the Court considers that no analogy may bedrawn in this case between the rights of third parties and the rights of complainantsin the context of Regulation No 17 nor, a fortiori, between the provisions ofArticle 15 of Regulation No 2367/90 and Article 6 of Regulation No 99/63.
     
     
124. It follows from all of the foregoing that the applicant cannot rely on aninfringement of its right to be heard for the purposes of Article 18(4) of RegulationNo 4064/89.
     
     
125. It follows that the second plea must be rejected.
     
     The third plea: material modifications of the notification
     
     Arguments of the parties
     
     
126. The applicant submits that the Commission infringed Articles 6 and 8 of RegulationNo 4064/89 and Section I of Regulation No 2367/90, in regard to the notifications,by allowing P&G to replace its original commitment concerning the non-Cameliabusiness with its commitment not to acquire control of VPS's Camelia business. Itwas a material modification of the notification inasmuch as, according to theapplicant, P&G's original commitment relating to VPS's non-Camelia businessformed, in the same way as did its commitment not to acquire control of its 'babynappies business‘, an integral part of the notification. Moreover, that modificationimplemented a radical change in P&G's strategy, which enabled it to orientate theconcentration towards the tissue-paper sector, while retaining a not inconsiderablemarket share in the feminine hygiene sector. The applicant concludes from thisthat the Commission was under a duty to reject the amendments to the notificationsubmitted by P&G and to call for a new notification dealing solely with thedivestiture of the Camelia business, in conformity with Article 6 of the regulation,which requires the Commission to examine a concentration in the form notified.
     
     
127. The Commission contends that it was its decision not to require P&G to resell thenon-Camelia business and that P&G did not therefore modify the details of theconcentration by withdrawing its original commitments. It contends that under thesecond subparagraph of Article 8(2) of Regulation No 4064/89 it may impose onlyconditions and obligations that are strictly necessary for the authorization of aconcentration and that it is entitled not to take up, as a condition, an originalcommitment offered by an undertaking if, in the light of subsequent, moresubstantial commitments, the original commitment does not appear to be necessary. That approach is all the more justified in the present case, since the Commissionhad maintained throughout the procedure that P&G's original commitment relatingto the non-Camelia business was not such as to resolve the problem of competitionon the relevant market and competitors, including the applicant, had themselvesstressed the insignificant extent of that commitment.
     
     
128. P&G contends that the notification concerned its acquisition of the whole of VPS'sbusiness in the feminine hygiene sector and contained all the necessary information,both as regards the Camelia business and the non-Camelia business. Moreover,there is a clear distinction, in the context of the concentration, between the'feminine hygiene‘ business and the 'baby hygiene‘ business, since only the latterwas transferred to a separate legal entity before the sale became final. Moreover,the offer, in the notification, not to acquire control of the non-Camelia business wassubject to the express condition precedent that there would be a decisionauthorizing the operation under Article 6(1)(b) of Regulation No 4064/89;consequently, it would have lapsed following the initiation of the proceedings underArticle 6(1)(c) of the Regulation, as is confirmed by the letter which it sent to theCommission on 16 June 1994.
     
     Findings of the Court
     
     
129. Under Regulation No 4064/89 the initiation of proceedings on the basis ofArticle 6(1)(c) constitutes, inter alia, the opportunity for the undertakingsconcerned to modify the original concentration plan in order to dispel theCommission's serious doubts as to the compatibility of the concentration with thecommon market. The Court observes in that regard that the possibility therebyconferred on the undertakings concerned to modify the plan notified is expresslyprovided for by Article 8(2) of the regulation, which states that the Commission isto issue a decision declaring the concentration compatible with the common market'where [it] finds that, following modification by the undertakings concerned ifnecessary, a notified concentration fulfils the criterion laid down in Article 2(2)‘and that it 'may attach to its decision conditions and obligations intended to ensurethat the undertakings concerned comply with the commitments they have enteredinto vis-à-vis the Commission with a view to modifying the original concentrationplan‘.
     
     
130. It follows that Article 6 of Regulation No 4064/89, under which the Commission'shall examine the notification‘ in order to determine, in particular, whether theconcentration notified raises serious doubts as to its compatibility with the commonmarket, cannot be interpreted, as the applicant essentially claims, as requiring theCommission to refuse modifications made by the undertakings concerned to thenotified concentration plan and to require a new notification.
     
     
131. The applicant's argument to the effect that P&G's withdrawal of the commitment,proposed upon the notification of the concentration, not to acquire control of thenon-Camelia business constitutes a material modification of the notification is in noway of such a nature as to show that the Commission failed to observe theprovisions of Articles 6 and 8 of Regulation No 4064/89 and those of Section I ofRegulation No 2367/90.
     
     
132. First, the criterion of the allegedly material nature of the modifications made to anotification is, in itself, irrelevant, since such an eventuality is expressly envisagedby the provisions of Section I of Regulation No 2367/90, Article 3(2) of whichprovides that 'material changes in the facts specified in the notification which thenotifying parties know or ought to have known must be communicated to theCommission voluntarily and without delay‘.
     
     
133. Moreover, in the present case, the Court considers that the commitment proposedby P&G in its notification in regard to the non-Camelia business of VPS did notconstitute an arrangement that was inherent to the notified concentration plan,unlike that relating to the 'baby nappies‘ business of VPS. As is clear both fromthe Decision and from the statement of objections addressed to P&G, unlike thecommitment not to acquire the 'baby nappies‘ business of VPS, that proposedcommitment was neither part of the acquisition agreements concluded between theparties to the concentration nor the subject-matter of partial performance. On thecontrary, it constituted a unilateral offer by P&G, supplemented by an additionalagreement between the parties concerning solely the definition of that business andthe arrangements for any sale of it. The Court observes, furthermore, that whenproceedings were initiated under Article 6(1)(c) of Regulation No 4064/89 it wasexpressly stipulated that the proposed commitment would be maintained only in sofar as the concentration was authorized in the form notified.
     
     
134. Finally, the Court observes that the applicant has not adduced any cogent evidenceto call into question the fact that in the course of examining the plan as notified theCommission had all the necessary information concerning the non-Camelia businessfor the purpose, in particular, of assessing the importance of the market shares ofthat business and determining whether the original commitment so proposed wasappropriate in order to prevent the creation of a dominant position for P&G onthe relevant markets. In that regard, by letter of 14 February 1994 P&G suppliedthe Commission with precise data concerning the market shares of that businessand, in the context of the statement of objections addressed to P&G concerning thenotified plan, the Commission took into account the importance of that businesson the market. Consequently, merely switching the businesses to be sold andmodifying the commitments so proposed did not alter the objective data concerningthe importance of those businesses, which the Commission had gathered in thecontext of the notification and in the proceedings in which the concentration planwas examined.
     
     
135. The Court considers that the claim that the switch of P&G's commitmentsamounted to a material modification at an industrial level is irrelevant in thecontext of the present plea, since the purpose of any modification to theconcentration plan by the undertakings concerned, pursuant to Article 8(2) ofRegulation No 4064/89, is precisely to enable changes to be made in regard to theeconomic impact of the concentration in order to render it compatible with thecommon market. The question whether the Commission committed manifest errorsof assessment in accepting the modifications so made to the original concentrationplan, on the ground that it allegedly underestimated the market shares of the non-Camelia business, is a matter falling solely within the appraisal of the substantivelegality of the Decision.
     
     
136. Consequently, the third plea must be rejected.
     
     The fourth plea: failure to provide for sufficient and reasonable time-limits
     
     Arguments of the parties
     
     
137. The applicant submits that the Commission did not provide for sufficient andreasonable time-limits before adopting the Decision and that, by so doing, infringedgeneral principles of Community law and Article 10(4) of Regulation No 4064/89,read in conjunction with Article 9 of Regulation No 2367/90.
     
     
138. First, the applicant complains that the Commission accepted the commitmentsproposed by P&G despite the lateness with which they were lodged. Referring tothe Opinion of Advocate General Warner in Joined Cases 6/73 and 7/73 IstitutoChemioterapico Italiano and Commercial Solvents v Commission [1974] ECR 223,it claims that the time-limits set by the Commission in the course of merger controlproceedings must observe the principles of proportionality, effectiveness and audialteram partem. In the present case, the time allowed to P&G to submit newcommitments was disproportionate in relation to that allowance to third parties andthe Advisory Committee to submit their observations. The Commission allowedP&G to lodge new commitments practically at the end of the period of four monthsprovided for in Regulation No 4064/89, namely on 15 and again on 20 June 1994,whereas the third parties had only two days within which to comment on P&G'sproposals. Moreover, in adopting Regulation (EC) No 3384/94 of 21 December1994 on the notifications, time limits and hearings provided for in RegulationNo 4064/89 (OJ 1994 L 377, p. 1), the Commission acknowledged that the periodwithin which P&G required the proposed commitments to be examined constitutedan abuse.
     
     
139. Second, the applicant submits that, failing rejection of P&G's belated commitments,the Commission should at least have refrained from bringing forward the date ofadoption of the final decision from 27 June to 21 June 1994. The procedurefollowed by the Commission was all the more unreasonable since, in view of thecircumstances for which P&G was responsible, Article 10(4) of Regulation No4064/89 required it to suspend the period of four months laid down by Article 10(3)in order to gather supplementary information or to order an investigation into thecommitments given.
     
     
140. The Commission points out that the commitments at issue were offered to it byP&G on 10 June 1994, that is to say, 17 days before the expiry of the period laiddown by law for the adoption of the Decision. According to the Commission, therewas therefore no serious reason for it to reject those proposals of its own motion,particularly since neither Regulation No 4064/89 nor Regulation No 2367/90, whichapplied at the material time, lay down a period within which offers of commitmentsmust be made. Nor could it prescribe such a period in anticipation withoutinfringing P&G's legitimate expectations. The Commission considers, moreover,that the provisions of Article 10(4) of Regulation No 4064/89 were not applicablein this case, since it took the view that it was in possession of all the evidenceenabling it to adopt its decision and that it was therefore required to take adecision, since it was clear that the serious doubts referred to in Article 6(1)(c) hadbeen removed.
     
     
141. P&G adopts the Commission's arguments in all essential respects.
     
     Findings of the Court
     
     
142. As regard, first, the complaint that P&G's commitments were lodged very late, theCourt observes that neither Regulation No 4064/89 nor Regulation No 2367/90,which was then in force, makes the option given to the undertakings concerned topropose commitments in order to modify the notified concentration plan subjectto compliance with a pre-established time-limit. It is settled law that the legalityof a contested measure must be assessed on the basis of the facts and the law asthey stood at the time when the measure was adopted (see Joined Cases 15/76 and16/76 France v Commission [1979] ECR 321, paragraph 7, and Joined CasesT-79/95 and T-80/95 SNCF and British Railways v Commission [1996] ECR II-1491,paragraph 48, and Case T-115/94 Opel Austria v Council [1997] ECR II-39,paragraph 87). Accordingly, the argument that it follows from the provisions of thesubsequent regulation, Regulation No 3384/94, that the commitments proposed byP&G must be regarded as unreasonably late is of no relevance to a submission thatthe Commission was required to reject the modifications made by the undertakingsconcerned and to the original concentration plan.
     
     
143. As regards the argument that the time-limits set for the various participants in theproceedings were too short, the Court points out, first, that P&G submitted itsproposed commitments to the Commission on 10 June 1994, that is to say, 17 daysbefore the expiry of the period prescribed by Article 10(3) of RegulationNo 4064/89, the rules for calculating that period being set out in Section II ofRegulation No 2367/90. Having regard to the fact that the commitments inquestion, relating to the sale to a third party of the Camelia business, satisfied theessential requirement set by the Commission during the proceedings for theauthorization of the planned concentration, the Court considers that theCommission could not refuse to examine them in the absence of a specificprovision in Regulations Nos 4064/89 and 2367/90 concerning the periods withinwhich the undertakings concerned might submit commitments with a view tomodifying the original concentration plan.
     
     
144. Moreover, as the Court has found in the course of its examination of the first twopleas in this action, the Advisory Committee was able to issue its opinion on themodified concentration plan in full knowledge of the facts and the applicant wasput in a position to make known its views on the commitments proposed by P&G,so that the time allowed to them in this case cannot be regarded as inadequate.
     
     
145. It follows that it has not been shown that, in the circumstances of the present case,the Commission went beyond the bounds of what was appropriate and necessaryto attain the objective sought, which, under Regulation No 4064/89, is to ensureeffectiveness of control and legal certainty for the undertakings concerned and, forthat purpose, to observe strict time-limits (see the order in CCE de la SociétéGénérale des Grandes Sources and Others v Commission, cited above, paragraph 30).
     
     
146. As regards, second, the complaint based on the period within which theCommission adopted the Decision, the Court observes that by virtue ofArticle 10(2) of Regulation No 4064/89 '[d]ecisions taken pursuant to Article 8(2)concerning notified concentrations must be taken as soon as it appears that theserious doubts referred to in Article 6(1)(c) have been removed, particularly as aresult of modifications made by the undertakings concerned, and at the latest bythe deadline laid down in paragraph 3‘, that is to say, a period not exceeding fourmonths from the date on which proceedings were initiated. Moreover, Article10(4) of the regulation provides as follows: 'The period set by paragraph 3 shallexceptionally be suspended where, owing to circumstances for which one of theundertakings involved in the concentration is responsible, the Commission has hadto request information by decision pursuant to Article 11 or to order aninvestigation by decision pursuant to Article 13‘. Article 9 of RegulationNo 2367/90 sets out the specific cases referred to in Article 10(4) and the rules forsuspending the period.
     
     
147. It follows from those provisions that suspension of the period may be ordered onlyin so far as the Commission considers that it is not in possession of all theinformation necessary in order to adopt its decision. Since the Commissionconsidered, in the present case, in the exercise of the discretion conferred on it forthat purpose, that it had all the information for the purposes of adopting adecision, the Court considers that the Commission could not, without infringingArticle 10(4) of Regulation No 4064/89, suspend the prescribed period of fourmonths merely on the ground that P&G had submitted its proposed commitmentsat a time that was allegedly unreasonably late but that, on the contrary, it wasrequired to adopt its decision as soon as it appeared to it that the serious doubtsregarding the transaction had been removed. Consequently, the applicant'sargument that the Commission was required to suspend the period laid down byArticle 10(3) of Regulation No 4064/89 or, at least, not to adopt its decision sixdays before the end of that period, cannot be accepted.
     
     
148. It follows from all the foregoing that the fourth plea must be rejected.
     
     The fifth plea: lack of reasoning
     
     Arguments of the parties
     
     
149. The applicant considers that the Commission infringed Article 190 of the ECTreaty by failing to set out in the Decision the reasons which led it to accept thereplacement of P&G's original commitments relating to the divestiture of the non-Camelia business of VPS by those relating to the divestiture of the Cameliabusiness. Furthermore, the Decision does not contain any economic analysis of theeffects of the acquisition by P&G of the non-Camelia business, which, according tothe applicant, is due to the Commission's failure to take proper account of the datarelating to the German market in regard to the own-label brands.
     
     
150. The Commission observes that it is settled law (Case 41/69 ACF Chemiefarma vCommission [1970] ECR 661; Case T-44/90 La Cinq v Commission [1992] ECRII-1) that it is not required to respond to every point of fact and of law raised byeach interested party and, a fortiori, by third parties during the administrativeproceedings, but that it suffices if it sets out the facts and the legal considerationshaving decisive importance in the context of the decision. In the present case, itstressed, throughout the proceedings, the limited and ineffective nature of P&G'soriginal commitments and also set out in the Decision the reasons for which thecommitments relating to the Camelia divestiture appeared to it to be necessary andsufficient for the concentration not to be incompatible with the common market.
     
     
151. P&G considers that the Commission adequately set out in point 187 of theDecision the reasons for which it did not believe it to be necessary to require P&Gto divest itself of the non-Camelia business as well as the Camelia business.
     
     Findings of the Court
     
     
152. As to the complaint that there was a lack of reasoning in regard to the switch inthe commitments proposed by P&G, the Court observes, first of all, that it issettled law that, although under Article 190 of the Treaty the Commission isobliged to state the reasons on which its decisions are based, mentioning the factualand legal elements which provide the legal basis for the measure in question andthe considerations which have led it to adopt its decision, it is not required todiscuss all the issues of fact and of law raised by every party during theadministrative proceedings (see Case T-2/93 Air France v Commission ('TAT‘)[1994] ECR II-323, paragraph 92). Moreover, the question whether a statementof reasons meets the requirements of Article 190 of the Treaty must be assessedwith regard not only to its wording but also to its context and to all the legal rulesgoverning the matter in question (see Case C-56/93 Belgium v Commission [1996]ECR I-723, paragraph 86, and Skibsvaerftsforeningen and Others v Commission,cited above, paragraph 230).
     
     
153. In the present case, the Court considers that the statement of reasons for theDecision clearly shows the reasons for which the Commission considered that theacquisition by P&G of VPS's non-Camelia business was not likely to lead to thecreation of a dominant position for P&G in Germany or to the strengthening ofsuch a position in Spain, so that the commitment proposed by P&G to divest itselfof the Camelia business appeared to it to be sufficient for the concentration to bedeclared compatible with the common market.
     
     
154. In point 187 of the Decision (see paragraph 54 above), after having noted theswitch in the brands of which P&G was to divest itself, the Commission set out ina table the structure of the market for sanitary towels in Germany and in Spainafter the concentration, taking into account the acquisition by P&G of VPS's non-Camelia business and the sale of Camelia to a third party. On that basis, it foundthat even though P&G increased its market share of the German market by 6.9%to reach a total share of 43.2% (by value), that increase was solely attributable toits acquisition of VPS's non-Camelia business (namely the non-premium brands),whereas its Always brand would be subject to competition from two significantsuppliers of branded premium towels, namely Camelia and Johnson & Johnson,each holding market shares of respectively 24.5% and 13.4%. In thosecircumstances, having also observed that P&G's market share in Spain wouldincrease by only 0.1%, the Commission concluded that 'the commitments offeredby P&G in respect of the Camelia-branded feminine hygiene business of VPS aresufficient to prevent the creation or reinforcement of a dominant position on theGerman and Spanish markets, or indeed elsewhere in the EEA‘ (point 187 of theDecision), which constitutes a sufficient statement of reasons for its decision.
     
     
155. Moreover, since each part of the Decision must be read in the light of the others(Case T-150/89 Martinelli v Commission [1995] ECR II-1165, paragraph 66), theCommission's reasoning to the effect that, because of the sale of Camelia and thusthe switch of commitments, P&G will be prevented from acquiring a dominantposition in Germany is the logical conclusion of its appraisal, inter alia, in points 43,44, 92, 114 and 125 of the Decision, according to which the strength of companieson the market is determined by their ownership and development of a well-knownbrand in the premium-products sector, competition with secondary brands orprivate label brands being, on the other hand, limited.
     
     
156. Lastly, as is clear from the file, throughout the proceedings before the Commissionthe applicant itself stressed the insignificance of VPS's non-Camelia businessbrands, namely the secondary brands Blümia and Femina, stating that 'the Feminabrand is distributed by Schickedanz in Germany only to an extremely limited rangeof customers‘ and further that 'having regard to the position of Blümia on themarket, the decline of that brand seems to us to be inevitable‘ (applicant's letterto the Commission of 24 January 1994).
     
     
157. In that context, the Court considers that the recitals in the preamble to theDecision set out clearly and unequivocally the reasons for which the Commissionconsidered that the sale of VPS's Camelia business was sufficient for theconcentration to be declared compatible with the common market, without its beingnecessary for P&G also to sell the non-Camelia business.
     
     
158. As regards the complaint that the Decision does not contain any analysis of theeffects of P&G's acquisition of the non-Camelia business of VPS, the Courtobserves that it follows from Article 2(2) of Regulation No 4064/89 that theCommission is required to declare a concentration compatible with the commonmarket where two conditions are satisfied: first, that the concentration does notcreate or strengthen a dominant position and, second, that competition will not besignificantly impeded by the creation or strengthening of such a position. If adominant position will not be created or strengthened, the concentration musttherefore be authorized, without its being necessary to examine the effects of theconcentration on actual competition (judgment in TAT, cited above, paragraph 79). Consequently, since in the present case the Commission gave a sufficient statementof the reasons for which it considered that P&G's acquisition of the non-Cameliabusiness would not result in the creation of a dominant position in Germany or thestrengthening of that position in Spain, the Court considers that no defect in thestatement of reasons can be imputed to the Commission concerning its appraisalof the other effects of that acquisition on the relevant markets.
     
     
159. As regards the claim that the Commission failed to take proper account of the datarelating to the German market concerning the own-label brands, the Courtobserves that the applicant is thereby complaining essentially that the Commissionunderestimated the market share of products manufactured by VPS as own-labelbrands and, consequently, did not state the reasons for not taking them intoaccount in the overall assessment of the market shares acquired by P&G followingthe concentration.
     
     
160. The Court points out that it is clear from the table in point 187 of the Decisionthat the figure of 6.9%, which, according to the Commission, represents theincrease in P&G's market share on the German market following theconcentration, relates solely to the market shares for VPS's secondary brands fortowels, Blümia and Femina, and does not include the individual market share ofproducts manufactured by VPS as sub-contractor for retailers, the market sharesof the own-label brands being considered together in order to assess thecompetition brought to bear by retailers on manufacturers such as P&G.
     
     
161. However, the Court considers that in the present case the failure to take thespecific market share of products manufactured by VPS as sub-contractor and soldunder private label brands into account in VPS's total market share does not meanthat the statement of reasons is defective. The market shares of those productsmust, in principle, be attributed to those retailers alone, since they sell them on themarket under their own-labels and so compete with the sales of products soldunder the manufacturers' brands. In those circumstances, having regard to theprobable impact of such a factor on the assessment of the actual strength conferredby the concentration (see paragraphs 174 and 175 below), it is only if theCommission took the view, in the light of the information obtained during theproceedings, that VPS manufactured a high proportion of those products on theGerman market that the Commission should have explained why that market sharewas not taken into account in assessing the position acquired by P&G. Since, inthe present case, the Commission considered that that specific market share of VPSwas slight, the Decision cannot be regarded as being vitiated by a defect in thestatement of the reasons on which it is based. The question whether, as theapplicant claims, the Commission nevertheless underestimated the market share ofVPS's products sold under own-label brands concerns the substance of thecontested decision and not the reasoning adopted.
     
     
162. In any event, the Court finds that, as is apparent from the present action, theapplicant was fully able to dispute the validity of the Commission's substantiveassessment of the market shares of VPS's products sold under the own-label brandsand, accordingly, the position acquired by P&G as a result of the concentration.
     
     
163. It follows that the plea alleging a defect in the statement of reasons of the Decisionmust be rejected.
     
     The sixth plea: manifest errors of assessment
     
     
164. This plea is divided into three parts. In the first part the applicant submits that theCommission incorrectly assessed the consequences of P&G's acquisition of VPS'snon-Camelia business on the German market for sanitary towels. In the secondand third parts, it claims that the Commission did not correctly determine theimpact of the authorized transaction on the household hygiene paper productsmarket and on the market for baby nappies. It concludes from this that theDecision should be annulled for infringement of the Treaty and RegulationNo 4064/89, in particular Articles 2 and 8 thereof.
     
     First part: incorrect assessment of the consequences of the acquisition of VPS'snon-Camelia business on the market for sanitary towels
     
     
     • Arguments of the parties

     
     
     

165. The applicant submits that the concentration leads to the strengthening of P&G'sdominant position on the German market for sanitary towels, so that the Decisionshould be annulled for infringement of Article 2(1) and (3) and Article 8 ofRegulation No 4064/89.
     
     
166. First, it claims that the Commission underestimated the importance of VPS's non-Camelia business and, accordingly, the position obtained by P&G on the Germanmarket for sanitary towels as a result of the concentration, since it failed to takeinto account the specific market share of the products manufactured by VPS andsold under own-label brands. According to the applicant, VPS's share in the own-label products sector is 60%. That estimate is confirmed by the informationsupplied by the Commission in the course of the present action, from which itappears that the market share of VPS's products sold under own-labels amountsto 8.2% by value and 13% by volume of the total German market for sanitarytowels in 1993, which should therefore be added to the market share of 43.2% (byvalue) attributed to P&G following the concentration. Moreover, in response tothe argument that the Femina brand was sold by VPS and should not be taken intoaccount, the applicant states that such a sale could have taken place only after thecontested decision, since P&G had been authorized to retain it. However, theappraisal of the legality of the contested decision should take into account only theeconomic situation and commitments existing at the date on which it was adopted,not events after that date.
     
     
167. The applicant considers, second, that by requiring only the Camelia brand and thecorresponding plant to be sold the Decision allows P&G, as a result in particularof the large sales force retained in VPS, to offer large retailers non-Cameliabusiness products and Always brand products in substitution for products soldunder the Camelia brand. Moreover, the acquisition of the non-Camelia businessof VPS allows P&G to establish a complete range of feminine hygiene products andat the same time reduces the possibility for a new entrant to have its productsaccepted by the large retailers. Lastly, by authorizing a split in the femininehygiene products business of VPS, the Commission encouraged a weakening of theCamelia brand and thus of competition with P&G.
     
     
168. The Commission considers that the applicant's complaint is wholly unfounded inthat it claims that there is a strengthening of a dominant position but does not showin what respect the Commission's assessment that the acquisition of VPS by P&Gdoes not give rise to the creation of a dominant position on the German marketis incorrect (judgment in TAT, cited above).
     
     
169. In any event, the acquisition of VPS's non-Camelia business by P&G does not leadto the creation of a dominant position. The Femina brand was, in the end, sold toa third party, so that the non-Camelia business actually acquired, namely Blümiaand the products manufactured by VPS and sold under own-labels, represents amarket share of only 2% to 3% and concerns lower-quality products which do notcompete directly with the products sold under well-known brands such as Alwaysand Camelia. In response to the claim that VPS has a 60% share of the sector forown-label brands in Germany, the Commission states that, according to thestatistics sent by P&G on 14 February 1994, the non-Camelia products of VPSrepresented 13% of the German market by volume and 8.2% by value in 1993. Inreply to the written questions put by the Court, the Commission explained, on thebasis of the above statistics, that that figure did not relate solely to the marketshare of VPS's products sold under own-labels, the latter share being estimated atabout 1.3% of the German market.
     
     
170. Furthermore, the Commission submits that a switch from products sold underpremium brands to products sold under own-label brands or secondary brands isvery unlikely in view of the wish of large retailers to foster competition betweenmanufacturers in order to maintain a policy of very low margins. Consequently, thelarge retailers would obtain supplies from other producers if P&G sought to gainan advantage from the favourable position of its Always brand by increasing itsprices.
     
     
171. P&G contends that during the administrative proceedings the applicant stressed thefact that the commitment to sell the non-Camelia business would have aninsignificant effect on competition. P&G adds that in any event it has not retainedany of the non-Camelia brands.
     
     
     • Findings of the Court

     
     
     

172. The Court observes, first of all, that, although the applicant is claiming that theconcentration in question is liable to strengthen a dominant position of P&G on theGerman market for sanitary towels, whereas the Commission concluded in theDecision that a dominant position would not be created on that market, theapplicant is thereby submitting, at least implicitly, that the Commission committedan error of appraisal in reaching that conclusion; the applicant cannot therefore beprevented from contesting the legality of the Commission's decision in that regard(see the judgment in TAT, cited above, paragraph 86).
     
     
173. Article 2(2) of Regulation No 4064/89 provides as follows: 'A concentration whichdoes not create or strengthen a dominant position as a result of which effectivecompetition would be significantly impeded in the common market or in asubstantial part of it shall be declared compatible with the common market‘. Onthe other hand, under Article 2(3), concentrations which create or strengthen sucha position are to be declared incompatible with the common market. By virtue ofArticle 2(1) of the regulation the Commission is required to take into account inparticular the market position of the undertakings concerned and their access tomarkets.
     
     
174. In the present case, the applicant claims that the Commission committed an errorof appraisal in the Decision both as regards the assessment, in terms of marketshares, of the position of VPS's non-Camelia business on the German market forsanitary towels and as regards the privileged access to the large retailers affordedto P&G as a result of the acquisition of that business and the — allegedly harmful— effect of separating VPS's Camelia business from its non-Camelia business.
     
     
175. As regards, first, the complaint that the market shares of the non-Camelia businesswere underestimated, the fact that one or all of the non-Camelia business brandswere ultimately sold to third parties after the adoption of the Decision authorizingP&G to acquire the whole of that business cannot be taken into account by theCourt, since it is settled law that the legality of a decision must be assessed on thebasis of the elements existing at the time of its adoption (see, in particular, SNCF and British Railways v Commission, cited above, paragraph 48). It must thereforebe determined whether, as the applicant claims, the Commission committed anerror of appraisal in taking the view in the Decision that P&G would increase itsmarket share by 6.9% by value, a figure corresponding solely to the market sharesof VPS's secondary brands, Blümia and Femina, without taking into account thespecific market share of the products manufactured by VPS on behalf of retailers.
     
     
176. The Court considers that the mere failure to take into account such a market shareis not, of itself, such as to show that the Commission committed an error ofappraisal regarding the assessment of VPS's market position. When assessing themarket strength of an undertaking which is a party to a concentration, the marketshares of the products which it manufactures as sub-contractor for retailers whichresell those products under their own labels cannot, in principle, be imputed, inwhole or in part, to the market share held by that undertaking in regard to similarproducts which it sells under its own brand. Since the retailers sell those productsunder their own-labels in order to compete with the products sold under themanufacturers' brands, the market share which they hold as a result of those salesmust therefore, as a general rule, be attributed to them for the purposes ofassessing the competition to which the manufacturers of premium and secondarybrands are subject.
     
     
177. Admittedly, if, as the applicant alleges, at the moment when the Decision wasadopted VPS manufactured approximately 60% of the products sold in Germanyunder own-labels, the failure to take any account of that share of production wouldin this case result in an underestimate of the actual strength of VPS on the marketand therefore of the position acquired by P&G as a result of the concentration. In such a case, the fact that VPS is the main source of supply for retailers in regardto the products which they sell under their own-labels would have been liable toconfer on P&G, as a result of the acquisition of the non-Camelia business,privileged access to the major retailers and to enable it to practice, in regard to theretailers, a commercial policy which made the supply of those products conditionalon the preferential purchase of towels under its premium brand.
     
     
178. However, during the proceedings before the Court, the Commission proved to therequisite legal standard, on the basis of statistics sent to it by P&G on 14 February1994 in the course of its examination of the notified concentration plan, the lowmarket share of products manufactured by VPS and sold under own labels. According to those statistics, the market share of the whole of VPS's non-Cameliabusiness, including the products sold under own labels, amounted to 8.2% (byvalue) of the German market for towels in 1993, that is to say, a market share,solely for VPS's products sold under private labels, of merely 1.3% (by value)(8.2% less 6.9%). Moreover, having regard to the fact that, according to theDecision and the Commission's uncontested observations, the market share of allthe own-label brands was approximately 12.5% (by value), it follows that the shareof VPS in the production of towels sold under own-label brands was onlyapproximately 10%.
     
     
179. Since, in contrast, the applicant's assertions in regard to the specific market shareof VPS's products sold under private label brands are uncorroborated by anyevidence or by any figures such as to call into question the correctness of theCommission's assessment, the claim that the market share of the non-Cameliabusiness was underestimated must be rejected (see, for example, Case T-30/89 Hiltiv Commission [1991] ECR II-1439, paragraph 89).
     
     
180. As regards, second, the complaint that there was an error of assessment concerningthe privileged access to major retailers that would be afforded to P&G as a resultof the concentration, the Court considers that, in the circumstances of the presentcase, that argument is not such as to show that the effect of the concentration wasto create a dominant position on the relevant market. Thus, in the light of thesmall market shares of VPS's secondary brands — Blümia and Femina — and of theproducts manufactured by VPS on behalf of retailers, the mere claim that P&Gwould, as a result of their acquisition, have the power to prevent competitors'access to the major retailers does not appear to be well founded. Moreover, theapplicant has not adduced any evidence to support the argument that P&G mightpropose to retailers that non-Camelia products be substituted for Camelia products,whereas the Commission has shown, in particular, in the Decision that the marketfor towels was characterized by consumers' brand loyalty, in particular in thepremium products sector (points 97 and 125 of the Decision). It follows that thiscomplaint must be rejected, just as the claim — which is pure conjecture — that theCommission encouraged the future weakening of the Camelia brand by authorizinga division of VPS's businesses.
     
     
181. In the absence of any cogent evidence adduced by the applicant in support of itsarguments, the Court considers that, in view of the characteristics of the relevantmarket and the market share of the two principle competitors of P&G in thepremium brands sector, the Commission was therefore entitled to take the viewthat a market share of 43.2% did not lead to the conclusion that a dominantposition would be created (see, by analogy, Case 27/76 United Brands v Commission[1978] ECR 207, paragraphs 108 and 109), and that there was no need for it to giveany further consideration to the ancillary effects of the concentration oncompetition (see the judgment in TAT, cited above, paragraph 79).
     
     
182. In those circumstances, the first part of the plea must be rejected.
     
     Second part: incorrect appraisal of the consequences of the concentration on thehousehold hygiene paper products market
     
     
     • Arguments of the parties

     
     
     

183. The applicant complains that, when analysing the consequences of theconcentration on the paper products market, the Commission failed to take accountof P&G's position in the United States and the change in its financial capacities asa result of the sale of Camelia. According to the applicant, the acquisition of VPS,whose market shares in Germany were between 15 and 20%, gave P&G theopportunity to penetrate the European market and to increase its market sharesas a result of its financial resources and leading position on the North Americanmarket. Moreover, the abandonment of the plan to purchase Camelia enabledP&G to call on the financial resources which had originally been earmarked for it. By failing to make such an analysis, the Commission infringed Article 2(1) and (3)and Article 8 of Regulation No 4064/89.
     
     
184. The Commission considers that the applicant does no more than criticize thealleged failure to take into account certain factors, but does not show that if theCommission had taken them into account the result would have been reversed orprove that the Commission's analysis is incorrect. Furthermore, in the Decision itexamined the impact of P&G's entry on the European market, but took the viewthat there were no serious doubts having regard to the market share of VPS, theabsence of P&G from that market in Europe and the characteristics of the market,such as the presence of strong competitors, the growth of the market and theimportance of own-label brands. As regards the argument based on P&G'swithdrawal from the purchase of Camelia, the Commission considers that, havingregard to P&G's financial resources in general, the sale of Camelia is not such asto have a direct effect on P&G's expenditure on the household hygiene paperproducts market.
     
     
185. P&G states that in point 13 of the Decision the Commission took account of thepotential impact on the European market of P&G's position on the householdhygiene paper products market in the United States and Canada and that it foundthat there was no overlap between the activities of VPS and P&G. In any event,the market shares acquired by P&G as a result of the concentration areapproximately 4% and cannot therefore give rise to any doubts as to thecompatibility of the concentration with the common market.
     
     
     • Findings of the Court

     
     
     

186. The Court observes that in the present case the applicant relies on theCommission's failure to take into account the alleged effects of the concentrationon the paper products sector, but does not show in what respect the concentrationin question would result in the creation of a dominant position on one of therelevant markets in that sector. The applicant does not contest the fact, found inthe Decision (see point 47 above), that P&G was not active in Europe in thatsector at the time when the concentration was notified, so that the concentrationin question did not give rise to an addition to the market shares of the undertakingsconcerned. Moreover, it is not alleged that the Commission committed an errorof assessment in finding that competitors and own-labels played an important rolein that sector and in taking the view that, having regard to those factors, even onthe narrowest possible definition of the market, namely the German market forpaper handkerchiefs, on which VPS held a market share of between 35 and 40%,the concentration did not give rise to any serious doubts as regards its compatibilitywith the common market. If a dominant position is not created or strengthened,a concentration must be authorized and it is not necessary to examine its allegedeffects on actual competition (see the judgment in TAT, cited above, paragraph 79). In those circumstances, the Court considers that the applicant cannot dispute thelegality of the Commission's analysis in regard to the consequences of theconcentration for tissue-paper products.
     
     
187. In any event, the Commission's conclusion that the concentration does not give riseto serious doubts as to its compatibility with the common market in regard to thoseproducts is in no way weakened by the applicant's arguments. Even supposing thatthe financial resources of P&G and its position on the North American marketenable it to increase the market shares of VPS, which is the very purpose of sucha concentration, the fact remains that the applicant does not show in what respectsuch circumstances should have caused the Commission to prohibit theconcentration in question when there would be no creation or strengthening of adominant position on the markets which the Commission considered relevant (seethe judgment in TAT, cited above, paragraph 87).
     
     
188. It follows that the second part of the plea must be rejected.
     
     Third part: erroneous assessment of the consequences of the concentration for themarket for baby nappies
     
     
     • Arguments of the parties

     
     
     

189. The applicant complains that the Commission did not analyse the consequences ofthe sale to third parties of the 'baby nappies‘ business of VPS in Germany and inSpain and, accordingly, that it failed to take measures to maintain competition withP&G, which was already dominant on those markets. As regards, in particular, theGerman market, the Commission failed to exercise any control in regard to thequalities of the purchaser of VPS's business, so that in choosing an operator whichdoes not have the financial and commercial means to remain permanently on themarket for manufacturers' brands, P&G is in a position to eliminate the productsof VPS which compete with its Pampers products. The applicant concludes that,if VPS's products disappear, P&G, which holds 51% of the market, will hold adominant position as against competitors who hold market shares in the order of9 and 5%. In the light of those factors, the Commission should have objected tothat sale or at least placed P&G under obligations in regard to the qualities of thepurchaser of that business in order to allow competition to be maintained betweenthe products of VPS and the products sold by P&G. In the absence of suchmeasures, the Decision is contrary to Article 2(1) and (3) and Article 8 ofRegulation No 4064/89.
     
     
190. The Commission argues that the criticisms and assumptions put forward by theapplicant do not show that the acquisition of VPS by P&G led to the creation orstrengthening of a dominant position, so that this objection is ineffective (judgmentin TAT, cited above). In any event, since P&G did not acquire control of VPS'sbaby nappies business, that business was not covered by the concentration and theCommission therefore had no power to impose restrictions as regards the thirdparty chosen to acquire that business.
     
     
191. P&G adopts the Commission's arguments and considers that the Commission wouldhave exceeded its powers if it had extended its power of control to the sale by P&Gof VPS's baby nappies business, since P&G never acquired control of it.
     
     
     • Findings of the Court

     
     
     

192. The Court observes that, as is apparent from the Decision and the uncontestedobservations of the Commission, the parties to the concentration in question clearlyintended to exclude VPS's business relating to infant hygiene, that is to say babynappies, from the subject-matter of the concentration since that business wasintended to be sold to a third party concomitantly with the authorization of theconcentration. Under the acquisition agreements notified to the Commission, thatbusiness was to be separated from VPS and transferred to a trustee, alreadydesignated at the time of the notification, with a mandate to ensure its sale to athird party within a short period of time following the completion of the acquisitionof VPS by P&G (points 5 and 6 of the Decision). Consequently, since there wasno lasting and actual transfer of control of that business to P&G, the business wasnot covered by the concentration plan submitted to the Commission for itsexamination. It follows that, since there was no concentration likely to lead to thecreation of a dominant position or to the strengthening of such a position on theGerman and Spanish markets for baby nappies, it is not open to the applicant tocomplain that the Commission did not adopt a position in regard to the choice —which the applicant alleges is harmful to the maintenance of effective competition— of the third party actually designated to acquire that business of VPS, since theCommission has no power to do so under Regulation No 4064/89.
     
     
193. For the same reasons, the claim that, pursuant to Article 8(2) of RegulationNo 4064/89, the Commission should at least have imposed obligations in regard tothe qualities of the purchaser of that business is ineffective. Moreover, in thatregard it should be noted that it is not for the Court, in the context of annulmentproceedings, to substitute its own appraisal for that of the Commission and to ruleon the question whether the Commission should, pursuant to that article, haveattached conditions or obligations to its decision, particularly since the provision inquestion concerns the substantive examination of the compatibility of the proposedconcentration with the common market after proceedings have been initiated underArticle 6(1)(a) of Regulation No 4064/89 (see the judgment in Dan Air, citedabove, paragraph 113).
     
     
194. Accordingly, the third part of the plea, alleging a failure by the Commission toanalyse the consequences of the concentration in regard to the markets for babynappies, must be rejected.
     
     
195. It follows that the application must be dismissed.
     
     Costs
     
     
196. Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to beordered to pay the costs if they have been asked for in the successful party'spleadings. Since the applicant has been unsuccessful and the Commission andP&G have applied for costs, it must be ordered to pay the costs.
     
     On those grounds,

     THE COURT OF FIRST INSTANCE (Second Chamber, ExtendedComposition)

     hereby:

     1. Dismisses the application;
        
        
     2. Orders the applicant to pay the costs, including the costs incurred by theintervener, P&G.
        

     
     
     

BellamyBriët Kalogeropoulos Potocki Jaeger

Delivered in open court in Luxembourg on 27 November 1997.

H. Jung

A. Kalogeropoulos

Registrar

President

1: Language of the case: French.