Case T-224/10

Association belge des consommateurs test-achats ASBL

v

European Commission

(Competition – Concentrations – Belgian energy market – Decision declaring a merger to be compatible with the common market – Commitments given during the initial phase of the investigation – Decision refusing the partial referral of the merger investigation to the national authorities – Action for annulment – Consumer association – Interest in bringing proceedings – Failure to initiate the in-depth review procedure – Procedural rights – Inadmissibility)

Summary of the Judgment

1.      Actions for annulment – Natural or legal persons – Locus standi – Decision relating to the compatibility of a merger with the common market – Third parties concerned by the merger in question

(Arts 108(2) TFEU and 263, fourth para., TFEU)

2.      Competition – Concentrations – Administrative procedure – Right of third parties to be heard – Consumer associations

(Council Regulation No 139/2004, Art. 6; Commission Regulation No 802/2004, Art. 11(c))

3.      Actions for annulment – Natural or legal persons – Locus standi – Decision refusing the referral of a merger investigation to the competent national authorities in a Member State – Third parties concerned by the merger in question – Absence

(Arts 108(2) TFEU and 263, fourth para., TFEU; Council Regulation No 139/2004, Art. 9)

4.      Competition – Concentrations – Decision refusing the referral of a merger investigation to the competent national authorities in a Member State – Right of Member States to appeal for the purpose of applying its national competition law – Action brought by an interested third party for the same purpose – Inadmissibility

(Council Regulation No 139/2004, Art. 9(9))

1.      According to the fourth paragraph of Article 263 TFEU, a natural or legal person may institute proceedings against a decision addressed to another person only if that decision is of direct and individual concern to the former. However, for decisions of the Commission relating to the compatibility of a merger with the common market, the locus standi of third parties concerned by a merger must be assessed differently depending on whether they, first, rely on defects affecting the substance of those decisions (‘first category’) or, second, submit that the Commission infringed procedural rights granted to them by the acts of European Union (‘EU’) law governing the monitoring of mergers (‘second category’).

So far as concerns the first category, the mere fact that a decision may affect the legal position of an applicant does not suffice for that applicant to be regarded as having locus standi. With particular regard to individual concern, it is necessary that the decision at issue should affect that applicant by reason of certain attributes which are peculiar to it or by reason of a factual situation which differentiates it from all other persons and thereby distinguishes it individually in the same way as the addressee.

Concerning the second category, as a general rule, where a regulation gives procedural rights to third parties, those parties must have a remedy available for the protection of their legitimate interests. With regard more particularly to actions brought by natural or legal persons, the right of specified third parties to be properly heard, on application by them, during an administrative procedure before the Commission can in principle be given effect to by the EU Courts only at the stage of review of the lawfulness of the Commission’s final decision. Thus, even where that decision, in its substance, is not of individual and/or direct concern to the applicant, the latter must nevertheless be recognised as being entitled to bring proceedings against that decision for the specific purpose of examining whether the procedural guarantees which it was entitled to assert have been infringed. Only if the Court were to identify a breach of those guarantees, such as to prejudice the applicant’s right to make an effective statement of its position, if it had applied to do so, during the administrative procedure, would the Court be required to annul the decision on the ground of breach of essential procedural requirements. In the absence of such a substantial breach of the applicant’s procedural rights, the mere fact that the applicant claims, before the EU Courts, that those rights have been infringed during the administrative procedure cannot render the application admissible in so far as it is based on pleas alleging breach of substantive rules of law.

It follows that an action brought by an applicant not covered by the first category can be declared admissible only to the extent to which its purpose is to ensure protection of the procedural guarantees which that applicant is recognised as having during the administrative procedure. The Court must ascertain, on the substance, whether the decision, annulment of which is sought, fails to observe those guarantees.

(see paras 27-30)

2.      A consumer association, set up to promote the collective interests of those consumers, is liable to be entitled to a procedural right, that is to say, the right to be heard, in the context of the administrative procedure before the Commission in respect of a merger investigation, subject to compliance with two conditions: first, that the merger concerns products or services used by final consumers; and, second, that an application to be heard by the Commission during the investigation procedure is made in writing. Provided that those conditions are fulfilled, such an association is entitled to challenge the clearance decision on the ground of infringement of that procedural right.

As regards the first condition, Article 11(c), second indent, of Regulation No 802/2004 implementing Regulation No 139/2004 on the control of concentrations between undertakings provides that consumer associations are entitled to be heard only where the proposed concentration concerns products or services used by final consumers, but it does not impose the obligation that the purpose of the proposed concentration must relate immediately to those products or services. The fact that those effects may be secondary in nature does not deprive the applicant of its right to be heard. The Commission cannot reject the claim of a consumer association which seeks to be heard as a third party demonstrating a sufficient interest in a merger without providing that association with an opportunity to show in what respect consumers may be concerned by the merger at issue.

With regard to the second condition, neither Regulation No 139/2004 nor Regulation No 802/2004, when they provide that certain third parties must be heard by the Commission, if they so request, specifies the period during which that request must be made. In particular, those regulations do not explicitly stipulate that that request must be made subsequent to the notification of the merger to which it refers or subsequent to the publication of the notification notice. However, since the Commission is to take a decision under Article 6 of Regulation No 139/2004 only with regard to notified concentrations, it is consistent with the logic of the EU legislation on merger control to take the view that the steps which third parties are required to undertake in order to be involved in the procedure must be taken following the formal notification of a concentration. Indeed, the need for third parties wishing to exercise their right to be heard to make their request to that end following notification of the merger at issue is consistent with the need for speed which characterises the general scheme of the EU rules on merger control and which requires the Commission to comply with strict time-limits for the adoption of its final decision.

(see paras 37-38, 40, 43-44, 49, 53, 56)

3.      A third party concerned by a merger is entitled to challenge, before the Court, the Commission’s decision to allow the national competition authority’s referral request provided that EU law recognises that those third parties are entitled to, first, procedural rights during the merger investigation by the Commission and, second, judicial protection to challenge any infringement of those rights. The direct consequence of such a decision is to subject a concentration in its entirety, or in part, to exclusive review by the national competition authority, which rules under its national competition law, thus depriving third parties of the opportunity to have the Commission review the lawfulness of the concentration from the point of view of EU law and preventing them from challenging before the Court the assessments made by the national authorities, whereas, in the absence of a referral, the assessments made by the Commission could have been so challenged.

Those procedural rights and that judicial protection are not in any way jeopardised by the non-referral decision, which, on the contrary, ensures for third parties concerned by a concentration with a Community dimension, first, that that concentration will be assessed by the Commission in the light of EU law, and second, that the Court will be the judicial body having jurisdiction to deal with any action against the Commission’s decision bringing the procedure to an end. In those circumstances, the third party’s standing to bring an action cannot be derived from an application by analogy of the case-law on the standing of that third party to bring an action against a referral decision.

(see paras 75, 77, 79-81)

4.      Article 9(9) of Regulation No 139/2004 on the control of concentrations between undertakings allows only the Member State concerned the possibility to appeal for the purpose of applying its national competition law. By contrast, there is nothing in the system for the control of concentrations with a Community dimension, as provided in that regulation, to indicate that an interested third party is entitled to challenge the non-referral decision on the ground that that decision precludes the investigation of the merger at issue and the avenues of legal redress against the decision conducting that investigation from being determined by the law of a Member State, and not by EU law. The admissibility of an action against the non-referral decision cannot result from the fact that the national law in question may confer on that third party more extensive procedural rights and/or judicial protection than provided for under EU law. Legal certainty precludes the admissibility of an action brought before the EU Courts from being dependent on whether the legal system of the Member State whose national competition authority unsuccessfully requested the referral of the merger investigation confers on interested third parties more extensive procedural rights and/or judicial protection than provided for under EU law. The scope of those procedural rights and of judicial protection depends on a range of factors which are, firstly, difficult to compare and, secondly, subject to developments in legislation and case-law that are difficult to monitor.

The very purpose of an action for annulment before the EU Courts is to ensure compliance with EU law, irrespective of the scope of the procedural rights and judicial protection that it confers, and not to claim the more extensive protection that may be provided for under national law.

(see paras 82-84)