Case T‑194/13

United Parcel Service, Inc.

v

European Commission

(Competition — Mergers — Regulation (EC) No 139/2004 — International express small package delivery services in the EEA — Acquisition of TNT Express by UPS — Decision declaring the merger incompatible with the internal market — Likely effects on prices — Econometric analysis — Rights of defence)

Summary — Judgment of the General Court (Fourth Chamber), 7 March 2017

1.      Judicial proceedings — Application initiating proceedings — Formal requirements — Brief summary of the pleas in law on which the application is based — Pleas in law not set out in the application — General reference to documents annexed to the application — Inadmissibility

(Rules of Procedure of the General Court (1991), Art. 44(1)(c); Rules of Procedure of the General Court (2015), Art. 76)

2.      Concentrations between undertakings — Administrative procedure — Observance of the rights of the defence — Hearing of undertakings — Obligation on the Commission to communicate to the undertaking concerned the final version of the econometric model used before adoption of the contested decision

(Council Regulation No 139/2004, Art. 18(3); Commission Regulation No 802/2004, Art. 13(4))

3.      Competition — Concentrations — Administrative procedure — Short intermediate procedural time-limits — Need to take account of the need for speed when assessing compliance with defence rights

(Council Regulation No 139/2004; Commission Regulation No 802/2004)

1.      See the text of the decision.

(see para. 192)

2.      Observance of the rights of the defence is a general principle of EU law enshrined in the Charter of Fundamental Rights of the European Union which must be guaranteed in all proceedings, including merger proceedings before the Commission. Similarly, the principle of the right to a fair hearing, which forms part of the rights of the defence, requires that the undertaking concerned must have been afforded the opportunity, during the administrative procedure, to make known its views on the truth and relevance of the facts and circumstances alleged and on the documents used by the Commission to support its claims.

In that regard, the econometric analysis used by the Commission in its decision declaring the merger in question incompatible with the internal market was based on an econometric model different from that which had been the subject of an exchange of views and arguments during the administrative procedure. Whilst there are numerous similarities between the final econometric model and those discussed during the administrative procedure, the changes made to the final model nevertheless cannot be regarded as negligible.

Accordingly, the Commission cannot claim that it was not required to communicate the final econometric analysis model to the applicant before adopting the contested decision.

Accordingly, the applicant’s rights of defence were infringed, with the result that the contested decision should be annulled, provided that it has been sufficiently demonstrated by the applicant not that, in the absence of that procedural irregularity, the contested decision would have been different in content, but that there was even a slight chance that it would have been better able to defend itself. The applicant might have been better able to defend itself if it had had at its disposal, before the adoption of that decision, the final version of the econometric model chosen by the Commission.

(see paras 198-200, 205, 209, 210, 215)

3.      When assessing alleged infringements of the rights of the defence in the context of merger control proceedings, it is necessary to take into account the need for speed, which characterises the general scheme of the Regulation No 139/2004, on the control of concentrations between undertakings.

(see para. 219)