Appeal brought on 27 July 2023 by enercity AG against the judgment of the General Court (Fourth Chamber, Extended Composition) delivered on 17 May 2023 in Case T-321/20, enercity AG v European Commission
(Case C-485/23 P)
Language of the case: German
Parties
Appellant: enercity AG (represented by: C. Schalast, Rechtsanwalt)
Other parties to the proceedings: European Commission, Federal Republic of Germany, E.ON SE, RWE AG
Form of order sought
The appellant claims that the Court should:
set aside the judgment of the General Court of the European Union of 17 May 2023, enercity v Commission (T-321/20), and annul the decision of the European Commission of 26 February 2019 on the merger of ‘RWE/E.ON Assets’ (Case M.8871, OJ 2000 C 111, p. 1);
in the alternative, set aside the judgment under appeal and refer the case back to the General Court;
order the Commission to pay the costs of both sets of proceedings.
Grounds of appeal and main arguments
By its first ground of appeal, the appellant alleges an error of law in the interpretation of the fourth paragraph of Article 263 TFEU. In the judgment under appeal, the General Court defined the conditions for standing under the fourth paragraph of Article 263 TFEU too narrowly and contrary to its own case-law and that of the Court of Justice. It referred exclusively to the judgment of 4 July 2006, easyJet v Commission (T-177/04), without taking into account the circumstances of the case at hand. Those circumstances included, in particular, the appellant’s active participation in the context of, inter alia, the overall transaction, the appellant’s specific participation in a personal meeting with the Commission and its recognition as an interested third party by the Commission’s hearing officer. As a result, the legal position adopted in the judgment under appeal will significantly compromise legal protection against merger control decisions in the future.
In the second ground of appeal, the General Court is alleged to have failed to meet the requirements of loyalty to the law and the rule of law. In its decision on standing, the General Court disregarded the recognition of the appellant’s status and the hearing officer’s assurance to inform the appellant of further opportunities to comment in the procedure. Instead, the General Court considers that the appellant could have participated more actively in the procedure. The appellant contends that it relied on the assurance of the hearing officer as an organ of the Commission. The General Court thus failed to observe the principles of loyalty to the law and the protection of legitimate expectations. As a result, the judgment under appeal means that the Commission will in future be free to decide on the possibilities for bringing an action against transactions.
By its third ground of appeal, the appellant submits that, in its decision on the erroneous division of the overall transaction of RWE and E.ON, the General Court misinterpreted Article 3(1) of Regulation (EC) No 139/2004 1 (‘ECMR’) in that it referred exclusively to the Commission’s Consolidated Jurisdictional Notice and disregarded its own case-law from the judgment of 23 February 2006, Cementbouw Handel & Industrie v Commission (T-282/02), as well as recital 20 of the ECMR. The General Court thereby failed to observe the principles of the hierarchy of norms, the primacy of law and the separation of powers.
Lastly, the fourth ground of appeal concerns an erroneous assessment of the ‘Investor Relationship Agreement’ submitted by RWE and E.ON. The General Court disregarded the fact that that agreement was invalid under German company law. The General Court thus left essential issues unexamined and, as a result, reached a decision which erred in law.
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1 Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) (OJ 2004 L 24, p. 1).