Case T-145/06

Omya AG

v

Commission of the European Communities

(Competition – Concentrations – Request for information – Article 11(3) of Regulation (EC) No 139/2004 – Need for the information requested – Proportionality – Reasonable time – Misuse of powers – Breach of the principle of legitimate expectations)

Summary of the Judgment

1.      Actions for annulment – Jurisdiction of the Community judicature – Claim seeking that directions be issued to an institution – Claim seeking that a declaratory judgment be issued – Inadmissibility

(Art. 230 EC)

2.      Competition – Concentrations – Examination by the Commission – Decision requesting information addressed to the notifying parties – Request for correction of the information communicated – Conditions

(Council Regulation No 139/2004, Arts 2 and 11)

3.      Competition – Concentrations – Examination by the Commission – Economic assessments – Judicial review – Limits

(Council Regulation No 139/2004, Arts 2 and 11)

4.      Competition – Concentrations – Examination by the Commission – Decision requesting information addressed to the notifying parties – Request for correction of the information communicated – Suspension of the time-limits

(Council Regulation No 139/2004, Arts 10 and 11)

5.      Competition – Concentrations – Examination by the Commission – Decision requesting information addressed to the notifying parties – Statement of objections which does not enable the need for or the accuracy of the information to be determined

(Council Regulation No 139/2004, Arts 2, 11 and 18(3))

6.      Competition – Concentrations – Examination by the Commission – Decision requesting information addressed to the notifying parties – Request for correction of the information communicated

(Council Regulation No 139/2004, Art. 11)

7.      Competition – Concentrations – Examination by the Commission – Decision requesting information addressed to the notifying parties – Request for correction of the information communicated

(Council Regulation No 139/2004, Art. 11)

1.      The Court of First Instance has no jurisdiction when exercising judicial review of legality under Article 230 EC to issue declaratory judgments or directions, even where they concern the manner in which its judgments are to be complied with, so that a request that it adjudicate on the effects of the annulment of a contested act must be declared manifestly inadmissible.

(see para. 23)

2.      The Commission may exercise the powers conferred on it by Article 11 of Regulation No 139/2004 on the control of concentrations between undertakings only to the extent that it considers that it is not in possession of all the information necessary to enable it to decide on the compatibility of the concentration concerned with the common market.

In that connection, for the purposes of adopting a decision on a concentration, the Commission must examine, pursuant in particular to Article 2 of Regulation No 139/2004, the effects of the concentration concerned on all the markets for which there is a risk that effective competition would be significantly impeded in the common market or in a substantial part of it.

In addition, the fact that the requirement that information must be necessary is to be interpreted by reference to the decision on the compatibility of the concentration with the common market implies that the need for the information covered by a request under Article 11 of Regulation No 139/2004 must be assessed by reference to the view that the Commission could reasonably have held, at the time the request in question was made, of the extent of the information necessary to examine the concentration. Accordingly, that assessment cannot be based on the actual need for the information in the subsequent procedure before the Commission; that need is dependent on many factors and cannot therefore be determined with certainty at the time the request for information is made.

In that connection, whilst the fact that information covered by a request under Article 11 of Regulation No 139/2004 was subsequently used may indicate that it was necessary, the fact that it was not used does not amount to evidence to the contrary.

As regards the specific case of a decision adopted under Article 11(3) of Regulation No 139/2004, by which the Commission requests the correction of information communicated by a notifying party which proves to be incorrect, the need for such correction is to be assessed depending on the criterion of the material nature of the errors identified, which is appropriate in the light of the wording and scheme of that regulation. Accordingly, the Commission is entitled to request the correction of information communicated by a party which is identified as erroneous if there is a risk that the errors identified could have a significant impact on its assessment of whether the concentration at issue is compatible with the common market. It is not necessary to interpret that criterion strictly, since the requirement for speed which characterises the general scheme of Regulation No 139/2004 must be reconciled with the objective of effective review of the compatibility of concentrations with the common market, which the Commission must carry out with great care and which requires that it obtains complete and correct information.

(see paras 24, 28-31, 33, 41-42, 45, 60-61)

3.      In the context of the control of concentrations, the Commission has a discretion as far as concerns economic matters and any review by the Community judicature is necessarily limited to verifying whether the relevant rules on procedure and on the statement of reasons have been complied with, whether the facts have been accurately stated and whether there has been any manifest error of appraisal or a misuse of powers. However, that does not mean that the Community judicature must refrain from reviewing the Commission’s interpretation of information of an economic nature and, in particular, its assessment of the need for the information requested pursuant to Article 11 of Regulation No 139/2004 on the control of concentrations between undertakings and the material nature of the errors by which that information is allegedly affected.

(see para. 32)

4.      The exercise by the Commission of the powers conferred on it by Article 11 of Regulation No 139/2004 on the control of concentrations between undertakings is subject to compliance with the principle of proportionality, which requires measures adopted by Community institutions not to exceed the limits of what is appropriate and necessary in order to attain the objectives pursued. In particular, it is necessary that an obligation imposed on an undertaking to supply an item of information should not constitute a burden on that undertaking which is disproportionate to the requirements of the inquiry.

As regards a decision adopted under Article 11(3) of Regulation No 139/2004, by which the Commission requests the correction of information communicated by a notifying party which proves to be incorrect, since the period of the suspension of the time-limits set in Article 10 of Regulation No 139/2004 resulting from the adoption of such a decision depends on the date on which the necessary information is communicated, the Commission does not infringe the principle of proportionality by suspending the procedure until such information has been communicated to it.

(see para. 34)

5.      In a merger control procedure giving rise to a request for information by means of a decision pursuant to Article 11 of Regulation No 139/2004, the statement of objections does not make it possible to determine exhaustively the information that the Commission considers to be necessary when such a decision was adopted. The statement of objections records only the assessments which led the Commission to identify potential competition problems and thus omits, in principle, the markets on which no risk was identified. Accordingly, its subject‑matter is considerably more limited than that of the examination carried out an earlier stage by the Commission. Nor does the statement of objections constitute a decisive factor in the assessment of the Commission’s position as regards the accuracy of the information used in its examination of the notified concentration.

(see paras 46, 77)

6.      The concept of misuse of powers refers to cases where an administrative authority has used its powers for a purpose other than that for which they were conferred on it. A decision may amount to a misuse of powers only if it appears, on the basis of objective, relevant and consistent factors, to have been taken for such a purpose. Where more than one aim is pursued, even if the grounds of a decision include, in addition to proper grounds, an improper one, that would not make the decision invalid for misuse of powers, since it does not nullify the main aim.

The absence of proof that the rules in force were infringed does not affect the possibility of a misuse of powers by the administrative authority.

A decision of the Commission under Article 11 of Regulation No 139/2004 on the control of concentrations between undertakings requesting the correction of information communicated by a notifying party which proves to be incorrect amounts to a misuse of powers if there are objective, relevant and consistent factors which show that it was adopted by the Commission in order to obtain a suspension of the timetable for assessing the concentration, rather than the correction of the information necessary for that assessment. In that connection, where the Commission systematically looks for errors during additional verifications of the accuracy of the information communicated by the notifying parties, that is not indicative of a misuse of powers. Moreover, where the Commission starts drafting a decision requesting additional information before appraising the impact of the errors on its assessment, that does not constitute evidence of a misuse of powers either.

(see paras 98-100, 106, 109)

7.      Three conditions must be satisfied in order to claim entitlement to the protection of legitimate expectations. First, precise, unconditional and consistent assurances originating from authorised and reliable sources must have been given to the person concerned by the Community authorities. Second, those assurances must be such as to give rise to a legitimate expectation on the part of the person to whom they are addressed. Third, the assurances given must comply with the applicable rules.

In the context of control of concentrations, the Commission may, without prejudicing the legitimate expectations of the notifying parties, take the view initially that the information provided by those parties is complete and correct and subsequently renege on that assessment.

In the interest of effective review of concentrations and in the light of the Commission’s obligation to examine with great care the effects of the concentration concerned on all the markets potentially affected, the Commission must retain the possibility to request the correction of materially incorrect information communicated by the parties which is necessary for its examination, the reasons which prompted it to verify once more its accuracy being irrelevant in this respect.

Furthermore, as the Commission’s examination must be conducted within relatively strict time-limits and the parties to the concentration are required to communicate to the Commission correct and complete information, the merger control procedure is necessarily based on trust to a large extent, since the Commission cannot be required to verify immediately and in detail the accuracy of all the information conveyed by those parties.

The verifications carried out by the Commission on receipt of information are not moreover necessarily capable of revealing all the material inaccuracies which might affect the latter.

The notifying parties cannot plead legitimate expectation in order to avoid the consequences of infringing the obligation to provide complete and correct information on the sole ground that that infringement was not identified by the Commission in the course of those verifications.

Furthermore, the mere fact that in the past the Commission has reacted to the communication of information within a few days does not constitute a sufficiently precise assurance that the Commission will not respond to a future communication of information after a longer period of time.

Lastly, the Commission’s practice with respect to decisions concerning the issue whether the information communicated is complete in the context of the examination of a notified concentration cannot be relied upon in the case of a decision concerning the accuracy of information and is not therefore such as to create a legitimate expectation.

(see paras 68, 117-120, 122-123)