JUDGMENT OF THE GENERAL COURT (Third Chamber)

9 March 2015 (*)

(Competition — Concentrations — Financial instruments sector — European derivatives market — Decision declaring that the concentration is incompatible with the internal market — Assessment of the effects of the transaction on competition — Efficiency gains — Commitments)

In Case T‑175/12,

Deutsche Börse AG, established in Frankfurt am Main (Germany), represented by C. Zschocke, J. Beninca and T. Schwarze, lawyers,

applicant,

v

European Commission, represented by T. Christoforou, V. Bottka, N. Khan and B. Mongin, acting as Agents,

defendant,

supported by

Icap Securities Ltd, established in London (United Kingdom), represented by C.T. Riis-Madsen, lawyer, and S. Stephanou, Solicitor,

intervener,

APPLICATION for annulment of Commission Decision C(2012) 440 final of 1 February 2012, declaring a concentration to be incompatible with the internal market and the functioning of the EEA Agreement (Case No COMP/M.6166 — Deutsche Börse/NYSE Euronext),

THE GENERAL COURT (Third Chamber),

composed of S. Papasavvas (Rapporteur), President, N.J. Forwood and E. Bieliūnas, Judges,

Registrar: C. Kristensen, Administrator,

having regard to the written procedure and further to the hearing on 4 June 2014,

gives the following

Judgment

 Background to the dispute

1.     Parties to the concentration

1        The applicant, Deutsche Börse AG, and NYSE Euronext Inc. (together ‘the parties to the concentration’) are companies which are active in the financial markets sector.

2        The applicant is a company incorporated under German law whose main activities are cash listing, trading and clearing services, derivatives trading and clearing services and cash post-trade services, namely securities settlement and custody, collateral management and market data and analytics (index licensing and information services). It operates the Frankfurt Stock Exchange (Germany) and holds shares in Eurex Zürich AG, the parent company of Eurex Frankfurt AG (‘Eurex’), which operates the derivatives exchange Eurex Deutschland and holds all of the shares in Eurex Clearing AG, the clearing house within the group of which it is the parent company.

3        NYSE Euronext is a company incorporated under United States law whose main activities are cash listing and trading services, derivatives trading and clearing services and information services and technology solutions. It operates numerous exchanges in the United States and in Europe. In Europe, NYSE Euronext operates, in particular, the derivatives exchange NYSE Liffe (‘Liffe’), which also operates derivatives markets in Paris (France), Amsterdam (the Netherlands), Brussels (Belgium) and Lisbon (Portugal).

2.     Administrative procedure

4        On 29 June 2011, the parties to the concentration notified the European Commission of a proposed concentration, pursuant to Article 4 of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (OJ 2004 L 24, p. 1).

5        That proposed concentration involved the creation of HoldCo, a company incorporated under Netherlands law. HoldCo was to acquire, by way of a public tender offer, all of the outstanding shares issued by the applicant, in exchange for its own shares. Following the closure of the offer, a newly-formed company, incorporated under United States law and wholly owned by HoldCo, was to merge with NYSE Euronext, which was to become a wholly-owned subsidiary of HoldCo. Once the transaction was complete, the applicant’s current shareholders were to hold approximately 60% of the capital of HoldCo, whereas the current NYSE Euronext shareholders were to hold approximately 40%.

6        By decision of 4 August 2011, the Commission held that the proposed concentration raised serious doubts as to its compatibility with the common market and decided to initiate detailed investigation proceedings, in accordance with Article 6(1)(c) of Regulation No 139/2004.

7        On 5 October 2011, the Commission sent the parties to the concentration a statement of objections, in accordance with Article 18 of Regulation No 139/2004.

8        On 20 October 2011, pursuant to the second paragraph of Article 10(3) of Regulation No 139/2004, the Commission extended the period for adopting a final decision by seven working days.

9        The parties to the concentration replied to the statement of objections on 24 October 2011.

10      A hearing took place on 27 and 28 October 2011 (‘the hearing’).

11      On 17 November 2011, the parties to the concentration submitted commitments to the Commission. Those commitments were amended on 21 November 2011 with the Commission’s agreement (‘the November commitments’).

12      On 22 November 2011, the Commission market tested the November commitments.

13      On 23 November 2011, the parties to the concentration had a meeting with the chief economist in the Commission’s Directorate General (DG) ‘Competition’ (‘the meeting of 23 November 2011’).

14      On 1 December 2011, the parties to the concentration told the Commission that the economic evidence presented by its chief economist in DG ‘Competition’ during the meeting on 23 November 2011 constituted new evidence in relation to which they had not been able to exercise their rights of defence.

15      On 8 December 2011, the Commission informed the parties to the concentration that it considered that the arguments and evidence presented by its chief economist in DG ‘Competition’ did not constitute new evidence or objections and provided the parties with a draft of the minutes of the meeting of 23 November 2011.

16      On 12 December 2011, the parties to the concentration submitted new commitments, which were amended on 14 December 2011 (‘the December commitments’).

17      On 14 and 15 December 2011, the Commission market tested the December commitments.

18      On 16 December 2011, the Commission extended the period for adopting a final decision by 13 working days, pursuant to the second paragraph of Article 10(3) of Regulation No 139/2004.

19      On 17 January 2012, the Advisory Committee provided for in Article 19(3) of Regulation No 139/2004 examined the Commission’s draft decision and delivered a favourable opinion.

3.     Contested decision

20      On 1 February 2012, the Commission adopted Decision C(2012) 440 final declaring a concentration to be incompatible with the internal market and the functioning of the EEA Agreement (Case No COMP/M.6166 — Deutsche Börse/NYSE Euronext) (‘the contested decision’).

21      In the contested decision, the Commission stated that the proposed concentration constituted a concentration within the meaning of Article 3(1)(a) of Regulation No 139/2004, which had a Community dimension within the meaning of Article 1(2) of that regulation.

22      The Commission then found that the proposed concentration was likely to lead to a significant impediment to effective competition by creating a dominant or near-monopoly position and eliminating the closest actual and potential competitor in the markets for:

–        existing and new European exchange-traded interest rate futures and options, whether or not that market was to be divided between short term interest rate derivatives (‘STIR derivatives’) and long term interest rate derivatives (‘LTIR derivatives’) or on the basis of the currency of the underlying;

–        existing and new European exchange-traded single stock futures and options, whether or not that market were to be defined on the basis of single underlyings, all underlyings of a given nationality or all European Economic Area (EEA) underlyings;

–        new exchange-traded European equity index futures and options;

–        off-order book services for block-size European exchange-traded derivatives contracts, whether or not that market were to be further divided on any of the lines considered for on-book trading;

–        trade registration, confirmation and central counterparty clearing services for flexible versions of European equity futures and options traded over-the-counter.

23      Moreover, the Commission considered that the efficiency gains that would be generated by the proposed concentration were not sufficient to counteract the significant restrictions of effective competition resulting from it.

24      Lastly, the Commission found that the commitments submitted by the parties to the concentration were not suitable to remedy the competition concerns identified and were therefore not capable of remedying the significant impediment to effective competition in the markets at issue, or of rendering the proposed concentration compatible with the internal market.

25      The Commission therefore concluded that the proposed concentration had to be declared incompatible with the internal market and the functioning of the EEA Agreement pursuant to Article 8(3) of Regulation No 139/2004 and Article 57 of that agreement.

26      Article 1 of the contested decision reads as follows:

‘Article 1

The notified concentration whereby NYSE Euronext and Deutsche Börse enter into a full merger within the meaning of Article 3(1)(a) of Regulation [No 139/2004] is hereby declared incompatible with the internal market and the functioning of the EEA Agreement.’

 Procedure

27      By application lodged at the Court Registry on 12 April 2012, the applicant brought the present action.

28      By document lodged at the Court Registry on 26 July 2012, Icap Securities Ltd (‘Icap’) sought leave to intervene in the present case in support of the form of order sought by the Commission. The applicant and the Commission submitted their observations on that application within the period prescribed.

29      By document lodged at the Court Registry on 14 August 2012, the Commission applied for a measure of organisation of procedure, pursuant to Article 64(4) of the Rules of Procedure of the General Court, for the purpose of governing the submission of confidential information or documents.

30      On 10 September 2012, the applicant and the Commission had an informal meeting with the Court (Fifth Chamber) in order to examine the measure of organisation of procedure requested and the conditions for its possible implementation.

31      By decision of 21 September 2012, the Court (Fifth Chamber) adopted a measure of organisation of procedure governing the production, by the applicant, the Commission or any interveners, of confidential information or documents.

32      By order of 8 October 2012, the Court (Fifth Chamber) adopted a measure of inquiry pursuant to which the Commission is entitled to use documents and information from NYSE Euronext for the purposes of the present proceedings, in so far as they have been made available to the applicant’s representatives during the administrative procedure.

33      By document lodged at the Court Registry on 15 November 2012, the applicant applied for a measure of organisation of procedure, pursuant to Article 64(4) of the Rules of Procedure, seeking that the Commission be ordered to produce a document. The Commission submitted its observations on that application within the prescribed period.

34      By order of 12 December 2012, the Court (Fifth Chamber) granted Icap leave to intervene. Icap submitted its statement in intervention and the other parties submitted their observations on that statement within the prescribed periods.

35      Following a change in the composition of the Chambers of the Court, the Judge-Rapporteur was assigned to the Third Chamber, to which the present case was accordingly allocated.

36      On hearing the report of the Judge-Rapporteur, the Court (Third Chamber) decided to open the oral procedure and, in the context of the measures of organisation of procedure provided for in Article 64 of the Rules of Procedure, put written questions to the applicant and to the Commission. The parties replied within the prescribed period.

37      The parties presented oral argument and replied to the Court’s oral questions at the hearing on 4 June 2014.

38      At the hearing, the applicant was given permission to produce a document within a period of one week, without prejudice to the decision of the Court as regards its insertion in the file.

39      After the applicant submitted the document at issue and the Commission submitted its observations within the prescribed period, the Court decided to insert that document and those observations in the file.

40      The oral procedure was closed on 23 July 2014.

 Forms of order sought

41      The applicant claims that the Court should:

–        annul the contested decision;

–        order the Commission to pay the costs.

42      The Commission, supported by Icap, contends that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

 Law

1.     Effectiveness of the pleas of the action

43      The Commission considers that the action must be dismissed since, even if all of the pleas were well founded, the contested decision cannot be annulled in view of the fact that it contains findings which have not been disputed by the applicant, which are sufficient to justify the operative part of that decision. First, the applicant makes only isolated claims regarding the finding that exchange-traded derivatives (‘ETDs’) and over-the-counter derivatives (‘OTC derivatives’) belong to separate markets, claims which are not sufficient to refute that finding. The applicant allegedly focusses its argument on issues related to certain OTC derivatives, in the present case derivatives similar to ETDs (‘ETD lookalikes’), and to the existence of a separate group of customers that can trade only ETDs. Second, the findings regarding the existence of a significant impediment to effective competition in the market for new equity index derivatives, the market for off-order book services and the market for trade registration, confirmation and central counterparty clearing services for flexible versions of European equity options and futures traded over-the-counter are sufficient to justify the contested decision. In the Commission’s submission, the applicant has not demonstrated that the contested decision was vitiated by an error with regard to those findings.

44      In the alternative, the Commission submits that, even if the pleas concerning the efficiency gains and the commitments were well founded, the application is, nevertheless, ineffective since the finding that the transaction would lead to a significant impediment to effective competition for the three unchallenged markets holds good.

45      In any event, the Commission contends that the application is not consistent with Article 44(1)(c) of the Rules of Procedure in so far as it does not provide sufficiently precise information.

46      In that regard, the Court observes that where some of the grounds in a decision on their own provide a sufficient legal basis for the decision, any errors in the other grounds of the decision have no effect on its operative part (see Case T‑210/01 General Electric v Commission [2005] ECR II‑5575, paragraph 42 and the case-law cited).

47      Where the operative part of a Commission decision is based on several pillars of reasoning, each of which would in itself be sufficient to justify that operative part, that decision should, in principle, be annulled only if each of those pillars is vitiated by an illegality. In such a case, an error or other illegality which affects only one of the pillars of reasoning cannot be sufficient to justify annulment of that decision because that error could not have had a decisive effect on the operative part adopted by the Commission (see General Electric v Commission, paragraph 46 above, paragraph 43 and the case-law cited).

48      In the context of decisions in the area of the control of concentrations, however incomplete a Commission decision finding a concentration incompatible with the common market may be, that cannot entail annulment of the decision if, and to the extent to which, all the other elements of the decision permit the Court to conclude that in any event implementation of the transaction will create or strengthen a dominant position as a result of which effective competition will be significantly impeded for the purposes of Article 2(3) of Regulation No 139/2004 (see, to that effect, Case T‑310/01 Schneider Electric v Commission [2002] ECR II‑4071, paragraph 412).

49      In the present case, as regards, in the first place, the objection to the definition of the relevant market, it is apparent from the application that the applicant disputes the finding that ETDs and OTC derivatives belong to separate markets.

50      Whilst it is true, as the Commission essentially observes, that, in the application, the applicant focusses a large part of its argument on issues related to ETD lookalikes and to the existence of a separate group of customers that can trade only ETDs, there is no evidence to suggest that, if that line of argument, combined as the case may be with the applicant’s other complaints, were to be upheld, it would not be able to call into question the definition of the relevant market adopted by the Commission.

51      As regards, in the second place, the objection to the finding of a significant impediment to competition in the markets at issue, it should first of all be recalled that the Commission considered that the proposed concentration was likely to lead to a significant impediment to effective competition by creating a dominant or near-monopoly position and eliminating the closest actual and potential competitor in the markets for:

–        existing and new European exchange-traded interest rate futures and options, whether or not that market was to be divided between STIR derivatives and LTIR derivatives or on the basis of the currency of the underlying;

–        existing and new European exchange-traded single stock futures and options, whether or not that market were to be defined on the basis of single underlyings, all underlyings of a given nationality or all EEA underlyings;

–        new exchange-traded European equity index futures and options;

–        off-order book services for block-size European exchange-traded derivatives contracts, whether or not that market were to be further divided on any of the lines considered for on-book trading;

–        trade registration, confirmation and central counterparty clearing services for flexible versions of European equity futures and options traded over-the-counter.

52      Next, it should be noted that the contested decision does not create a hierarchy between the competition problems found on each of the markets listed in paragraph 51 above. On the contrary, and in the light, inter alia, of the wording of Article 2 of Regulation No 139/2004, the Commission’s assessment can only be understood as meaning that, on each of the markets listed, the concentration would have led to effective competition being significantly impeded in the common market (see, to that effect, General Electric v Commission, paragraph 46 above, paragraph 47).

53      In the present case, it must be stated that, in the application, the applicant has not put forward any plea seeking to specifically and explicitly contest the Commission’s conclusions in so far as they relate to the markets for:

–        new exchange-traded European equity index derivatives;

–        off-order book services for block-size European exchange-traded derivatives contracts;

–        trade registration, confirmation and central counterparty clearing services for flexible versions of European equity futures and options traded over-the-counter.

54      However, without it being necessary to rule on the applicant’s argument that it has validly contested the Commission’s conclusions in so far as they relate to the markets referred to in paragraph 53 above, it cannot be considered that the pleas of the action are ineffective because of such a lack of explicit challenge.

55      First, the applicant relies, within the context of the pleas relating to efficiency gains, on the one hand, and to the commitments, on the other, on infringements of the rights of defence, in respect of which it is not inconceivable that, if they were upheld, they might be capable of resulting in the annulment of the contested decision.

56      Secondly, even though the application is silent in this respect, it is not inconceivable that the complaints put forward by the applicant within the context of the action might have an impact on the Commission’s assessments relating to the markets referred to in paragraph 53 above, in particular because some recitals of the contested decision concerning them refer to other recitals of that decision relating to the markets concerned by the application.

57      Thirdly, and in any event, the fact that the applicant does not explicitly contest the Commission’s assessments concerning the markets referred to in paragraph 53 above does not permit the inference that the pleas seeking to contest the Commission’s assessments of the efficiency gains and commitments are ineffective, since they do not relate specifically to a given market. Besides, assuming that the complaints concerning the markets explicitly contested are upheld, it is not inconceivable that the Commission’s analysis of the efficiency gains and proposed commitments would have been different, with the result that it might have authorised the proposed concentration. In that regard, it should be noted that, in recital 1479 of the contested decision, the Commission considered that some competition concerns might have been addressed to an adequate extent with the December commitments, in particular those relating to off-order book services and to trade registration, confirmation and central counterparty clearing services for flexible versions of European equity futures and options traded over-the-counter. However, the Commission considered that, given that there were doubts as to the viability of the activities whose divestment was proposed, the competition concerns even in those areas were not addressed to a sufficient extent.

58      In those circumstances, the Court must reject the Commission’s line of argument regarding the limited scope of the application and that, in essence, even if all the pleas were well founded, the contested decision cannot be annulled.

59      The Commission’s claim that the application is not consistent with Article 44(1)(c) of the Rules of Procedure in so far as it does not provide sufficiently precise information must be rejected, since, as is apparent from this judgment, the setting out of the pleas of the action has enabled the Commission to prepare its defence and the Court to rule on the action.

2.     Substance

60      In support of its action, the applicant puts forward three pleas, alleging, in essence, (i) errors of law and assessment regarding the analysis of the available evidence; (ii) errors of law and assessment regarding the efficiency gains; and (iii) errors of law and assessment regarding the commitments.

61      Before examining those pleas, it should be recalled, as a preliminary point, that, to declare a concentration incompatible with the common market, the Commission has to prove, in accordance with Article 2(3) of Regulation No 139/2004, that the implementation of the notified concentration would significantly impede effective competition in the common market or in a substantial part of it, in particular as a result of the creation or strengthening of a dominant position (Case T‑342/07 Ryanair v Commission [2010] ECR II‑3457, paragraph 26).

62      Such a decision, adopted on the basis of Article 8(3) of Regulation No 139/2004, is based on a prospective analysis by the Commission. That prospective analysis consists of an examination of the extent to which the notified concentration might alter the factors determining the state of competition on a given market in order to establish whether it would give rise to a serious impediment to effective competition. Such an analysis makes it necessary to envisage various chains of cause and effect with a view to ascertaining which of them are the most likely (see Ryanair v Commission, paragraph 61 above, paragraph 27 and the case-law cited).

63      Where the Commission takes the view that a concentration should be prohibited because it will create or strengthen a dominant position within a foreseeable period, it is incumbent upon it to produce convincing evidence thereof (see, to that effect, Case T‑342/99 Airtours v Commission [2002] ECR II‑2585, paragraph 63). In particular, when the Commission relies on the elimination or significant reduction of potential competition, even of competition which will tend to grow, in order to justify the prohibition of a notified concentration, the factors which it identifies to show the creation or strengthening of a dominant position must be based on such convincing evidence (see, to that effect, Case T‑5/02 Tetra Laval v Commission [2002] ECR II‑4381, paragraph 312).

64      Where commitments have been validly proposed by the parties to the concentration during the administrative procedure in order to obtain a decision that the concentration is compatible with the common market, the Commission is required to examine the concentration as modified by those commitments. It is then for the Commission to demonstrate that those commitments do not render the concentration, as modified by the commitments, compatible with the common market (see Ryanair v Commission, paragraph 61 above, paragraph 28 and the case-law cited).

65      In addition, it should be recalled that the basic provisions of Regulation No 139/2004, in particular Article 2, confer on the Commission a certain discretion, especially with respect to assessments of an economic nature. Consequently, review by the Court of the exercise of that discretion, which is essential for defining the rules on concentrations, must take account of the margin of discretion implicit in the provisions of an economic nature which form part of the rules on concentrations (see Ryanair v Commission, paragraph 61 above, paragraph 29 and the case-law cited).

66      Whilst the Commission has a margin of discretion with regard to economic matters, that does not mean that the Court must refrain from reviewing the Commission’s interpretation of information of an economic nature. Not only must it establish, in particular, whether the evidence relied on is factually accurate, reliable and consistent but also whether that evidence contains all the information which must be taken into account in order to assess a complex situation and whether it is capable of substantiating the conclusions drawn from it (see Ryanair v Commission, paragraph 61 above, paragraph 30 and the case-law cited).

67      In addition, according to settled case-law, where the institutions have a discretion, respect for the rights guaranteed by the legal order of the European Union in administrative procedures is of even more fundamental importance. Those guarantees include, in particular, the duty of the Commission to examine carefully and impartially all the relevant aspects of the individual case, the right of the person concerned to make his views known and also his right to have an adequately reasoned decision (see Ryanair v Commission, paragraph 61 above, paragraph 31 and the case-law cited).

68      The pleas raised by the applicant in support of its action must be examined in the light of those principles.

 The first plea in law, alleging errors of law and assessment regarding the analysis of the available evidence

69      The first plea essentially has two parts. The first alleges that the Commission did not take sufficient account of the horizontal competitive constraints and the second alleges that the Commission did not examine the demand-related constraints sufficiently.

 The first part, alleging that the Commission did not take sufficient account of the horizontal competitive constraints

70      In connection with the first part, the applicant puts forward four complaints.

–       The first complaint

71      The applicant submits that the Commission’s examination of OTC derivatives is vitiated by errors of law and assessment. In its view, the conclusion that ETDs and OTC derivatives belong to separate markets, on the ground that they are not interchangeable, is incorrect.

72      In that regard, it must be recalled, as a preliminary point, that, in its examination of the product markets concerned by the contested decision, the Commission essentially took the view that the ETD market and the OTC market were separate markets. In that context, the Commission observed, in particular, as is apparent from recital 367 of the contested decision, that the ability to directly substitute between ETDs and OTC derivatives would at best be limited to ETD lookalikes, even for customers that trade both ETDs and OTC derivatives. In addition, the Commission stated that OTC derivatives generally addressed different customer needs than ETDs, in particular the need to achieve a customised perfect hedge which is not possible with an ETD. The Commission therefore considered that even those customers did not use ETDs and OTC derivatives as substitutes but as complementary tools in their trading strategies.

73      In the present case, the applicant puts forward, essentially, four claims in support of the present complaint.

74      In the first place, the applicant claims that the Commission wrongly considered that ETD lookalikes do not exercise a competitive restraint on ETDs.

75      In that regard, it should be noted that, in recital 445 of the contested decision, the Commission took the view that, given the small size of the ETD lookalikes segment, it could leave open the question whether, for customers that trade both ETDs and OTC derivatives, ETD lookalikes belonged to the same market as ETDs, since the competitive assessment remains the same regardless of whether or not, for that category of customers, ETD lookalikes were included in the relevant product market.

76      In the present case, it must be stated at the outset, and subject to the considerations set out in paragraph 78 et seq. below relating to the applicant’s challenge as to the existence of that category of customers, that the applicant’s claim is irrelevant as regards customers that trade only ETDs, given that, by definition, they do not trade ETD lookalikes. It is also irrelevant as regards customers that trade both ETDs and OTC derivatives, given that, as follows from recital 445 of the contested decision, the Commission left open the question whether, for those customers, ETD lookalikes belonged to the same market as ETDs. As for the applicant’s argument — submitted at the stage of the reply — that the contested decision does not analyse that latter question, it is sufficient to state that it is clear from that decision, and in particular from recitals 445 and 642, that it is because of the relatively limited phenomenon of ETD lookalikes, examined in particular in recitals 314 to 319, that the Commission took the view that it could leave open the question whether ETD lookalikes could belong to the same market as ETDs.

77      Notwithstanding the above, it is still necessary to examine the five arguments which the applicant puts forward essentially in support of its claim, since it contests, in the context of the present complaint, the existence of a group of customers that trade only ETDs.

78      First, the applicant contests the Commission’s assessment that the trading of ETD lookalikes is a ‘relatively limited phenomenon’.

79      In that regard, it should be noted that the Commission stated, in recital 316 of the contested decision, that the results of the market investigation showed that trading of ETD lookalikes was a ‘relatively limited phenomenon’ on the ground that the value proposition of the OTC trading environment was very different and resided in the ability to offer a tailor-made contract that would constitute a perfect hedge to any kind of risk as opposed to the business model of exchanges which offered deep liquidity in a small subset of contracts. The Commission also took the view, in recital 319 of that decision, that, at best, some customers, principally large banks, could under certain circumstances substitute ETD lookalikes with some ETDs, principally options. The Commission concluded that the phenomenon of ETD lookalikes was and would remain ‘very limited’.

80      The applicant contends, in particular, that the ETD lookalikes market represents 5 to 15% of the OTC market and that the OTC market is 10 times larger than the ETD market. The applicant claims that ETD lookalikes represent between half and one-and-a-half times the market size of ETDs in this respect, with the result that they have a very significant impact on the activities of the parties to the concentration and on the competitive effects analysis.

81      In that regard, it must be stated that, as is apparent from recital 268 of the contested decision, taking into account the total notional turnover — that is to say the turnover in a given period — and not the notional outstanding value — that is to say the total value of all outstanding transactions — the OTC market is smaller than the ETD market. In that respect, it is apparent from recital 269 of that decision that NYSE Euronext claimed, before the proceedings at issue in the present case, that the notional turnover value was more appropriate to evaluate the economic utility of derivatives. In addition, it is apparent from recital 270 of that decision that the ETD market is more liquid than the OTC market, so that, in 2009, the OTC market accounted for 16 million transactions, whereas the ETD market accounted for 3 billion transactions. Finally, it follows from recital 278 of the same decision that ‘pure’ OTC derivatives — namely those which are customised and do not have to date an equivalent on exchange and are either bilaterally cleared or, when the degree of standardisation permits it, through a central counterparty dedicated to the instruments in question — represent the largest segment of OTC derivatives; ETD lookalikes are therefore not the majority within OTC derivatives. Furthermore, that is not disputed by the applicant. It follows that, in the context of a quantitative analysis taking into account, in particular, the total notional turnover and the number of transactions, ETD lookalikes cannot be regarded as having the significance alleged by the applicant.

82      Moreover, it should be noted that, beyond those quantitative aspects, it is apparent from the contested decision that the classification as a ‘relatively limited phenomenon’ also refers to the economic characteristics of ETD lookalikes. It is apparent from recital 316 of that decision that the Commission found that the market investigation showed that the trading of ETD lookalikes was a ‘relatively limited phenomenon’ on the ground that the value proposition of the over-the-counter trading environment was very different and resided in the ability to offer a tailor-made contract that would constitute a perfect hedge to any kind of risk as opposed to the business model of exchanges which offers deep liquidity in a small subset of contracts. Likewise, as is apparent from recital 319 of that decision, inasmuch as the economics of replicating an exchange-traded contract in the over-the-counter environment provides little justification for such a strategy, due, inter alia, to the fact that liquidity for the ETDs in question has settled on the exchanges of the parties to the concentration, the phenomenon of ETD lookalikes is and will be ‘very limited’. However, as is apparent from this judgment, and in particular from paragraphs 84 to 86 below, the applicant has not put forward any evidence to contradict the evidence on which the Commission based those findings.

83      It follows from the foregoing that, contrary to the applicants’ contention, the Commission did not err in considering that the trading of ETD lookalikes was a relatively limited phenomenon.

84      Secondly, the applicant submits that the Commission’s conclusion that the phenomenon of ETD lookalikes is and will be very limited is based on the erroneous finding that the group of customers that trade only ETDs is unlikely to switch to OTC derivatives in response to a 5% to 10% increase in the overall cost of trading for ETDs. In that regard, it must be noted, as a preliminary point, that that conclusion is not based on that finding alone, since the Commission also based it on the applicant’s internal documents and on the results of the market investigation, as is apparent in particular from recitals 310 to 320 of the contested decision. Next and in any event, it must be noted that the applicant wrongly submits, in order to demonstrate that that finding is incorrect, that the Commission incorrectly based its analysis on the question whether customers would switch to other derivatives or suppliers in the event of a 5% to 10% increase in the overall costs of exchange trading, when it should have questioned customers on an increase in exchange fees. As is apparent from reading recitals 299, 501 and 502 of that decision together, the market investigation confirmed that traders in general take into account the total cost of trading, including implicit fees (namely the bid-ask spread, market impact and opportunity costs linked to the provision of collateral) and explicit fees (namely membership fees and transaction fees for trading and clearing), when deciding where to trade. That finding concerning the structure of the total trading cost is not contested by the applicant in the application. In addition, as the Commission notes, the ‘Small but Significant Non-transitory Increase in Prices (SSNIP)’ test seeks to examine the reaction of customers in the light of an increase in the price of the product in question. The fact that that increase results from one of the price components is irrelevant in that respect, since the customer is not able to separate all of those components. Moreover, nothing in the Commission Notice on the definition of relevant market for the purposes of Community competition law (OJ 1997 C 372, p. 5, ‘the 1997 notice’) suggests that the test in question should not be carried out on the basis of the overall trading cost. Thus, the fact that the relationship between exchange fees and the total cost of trading is not linear or that the parties to the concentration can act solely on those fees, as the applicant submits, is irrelevant. It follows that the Commission did not err in taking into account an increase in the overall trading costs and not just in exchange fees. The alleged infringement of the 1997 notice must therefore be rejected.

85      Thirdly, as regards the Commission’s finding that the differences between ETD lookalikes and ETDs means that customers tend to prefer ETDs to ETD lookalikes, the applicant contends that the Commission did not examine whether customers would switch from ETDs to ETD lookalikes if the price of ETDs permanently increased by 5% to 10%. In that regard, it should be noted at the outset that, as is apparent from the contested decision, and in particular from its footnote 194, during the second phase of the market investigation, the Commission asked customers to state what their likely reaction would be in the event that the total cost of trading contracts on exchange were to increase by 5 to 10%, and requested them to state the alternative to which they would possibly switch. The applicant’s objection must therefore be rejected. In any event, it should be borne in mind, first, that the Commission accepted that ETD lookalikes could, to a certain extent, be regarded as substitutable to ETDs, as is apparent from recitals 310 to 320 of that decision, and, second, that, as is apparent from this judgment, the applicant has failed to adduce any evidence capable of calling into question the probative value of the evidence put forward by the Commission in support of its analysis, which is based in particular on a document submitted by the applicant and on the results of the market investigation. As for the fact that the response of a market participant, referred to in recital 314 of that decision, might suggest that, if the trading of ETDs were to become more expensive, he would switch to ETD lookalikes, it is irrelevant to the Commission’s conclusion, which accepts in any event a certain substitutability between those derivatives.

86      Fourthly, as regards the assertion in recital 318 of the contested decision that the counterparty risks and operational, legal and liquidity risks on the exchange market are different from those on the over-the-counter market and may induce customers to prefer exchange trading, the applicant argues that the Commission should have analysed whether ETD lookalikes have a risk profile that is different from OTC derivatives and that, if the Commission had done so, it would have found that ETD lookalikes were derivatives that are fully substitutable to ETDs. In that regard, it is sufficient to note that, as is apparent from recitals 310 to 320 of that decision, the Commission does not dispute that ETD lookalikes may in some cases be substitutable to ETDs, with the result that it did not have to examine whether ETD lookalikes have a risk profile that is different from OTC derivatives, as the applicant claims. Moreover, it is apparent from an overall reading of the contested decision that the Commission examined the risks specifically relating to ETD lookalikes. In particular, first, it should be noted that, in recital 318 of that decision, the Commission bases its findings on the response provided by a customer during the market investigation, from which it follows that, ‘while it is possible to create OTC contracts that “look-alike” for most ETD instruments …, the different pricing, processing including collateral/margining balance sheet impact mean that only a few are seamlessly substitutable’. Secondly, in footnote 222 of the same decision, the Commission separately addresses the issue of risks generally associated with OTC derivatives and risks specifically associated with ETD lookalikes. Concerning those latter risks, the Commission refers to a response to the market investigation, from which it is apparent, in particular, that ETD lookalikes and ETDs ‘differ with respect to the credit risk, market impact, price, speed, liquidity and other factors involved in the trade’. However, the applicant has not put forward any arguments that might call those considerations into question. Having regard to all the foregoing, the applicant’s objections relating to the analysis of the risks associated with ETD lookalikes and OTC derivatives must be rejected.

87      Fifthly, the applicant submits that the Commission’s finding that, in the future, ETDs will no longer be substitutable with ETD lookalikes because of regulatory developments is flawed. In that regard, it must be noted that the Commission took the view, in recital 320 of the contested decision, that proposed regulatory developments are likely to require all or substantially all of the ETD lookalikes to be traded or at least cleared on exchange, at which point, if those developments were enacted, substitutability would be excluded entirely for all categories of customers. It should also be noted that, in recitals 1104 to 1110 of that decision, the Commission examined in detail the impact of the expected regulatory developments. The Commission considered, in particular, that those regulatory developments would provide incumbent exchanges, such as those of the parties to the concentration, with additional opportunities to compete in capturing derivatives volumes which would, absent the regulatory changes, stay in the OTC world. The Commission concluded that, whatever the precise final scope of the legislation in question, those parties would be very well placed to compete with each other. In those circumstances, it must be stated that the applicant’s argument that the number of competitive constraints on the parties would increase with the regulatory development must be rejected, since, as follows from the considerations above, the Commission did not expressly preclude that possibility and since that argument cannot, on its own, call into question the finding in recital 320 of the contested decision. As for the fact that, in recital 284 of that decision, the Commission noted that the final shape of the proposals currently under discussion was unclear, it is irrelevant in the present case, since, both in that recital and in recitals 1104 to 1110 of the decision at issue, the Commission did not adopt a definitive position on the future effects of the regulations and envisaged only their probable effects. Moreover, the Commission cannot be required to base its assessment on legislative developments of which the precise and final content was not known when the contested decision was adopted. In that context, it should be noted that the three main legislative developments influencing the field of derivatives — namely Regulation (EU) No 648/2012 of the European Parliament and of the Council of 4 July 2012 on OTC derivatives, central counterparties and trade repositories (OJ 2012 L 201, p. 1), Directive 2014/65/EU of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Directive 2002/92/EC and Directive 2011/61/EU (OJ 2014 L 173, p. 349), and Regulation (EU) No 600/2014 of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Regulation No 648/2012 (OJ 2014 L 173, p. 84) — are subsequent to the adoption of the contested decision; Directive 2014/65 and Regulation No 600/2014 were indeed adopted only in April and May 2014, respectively, and had not yet even been published on the date of the hearing in the present case.

88      It follows from the foregoing that none of the arguments put forward by the applicant within the context of its claim that the Commission erred in finding that ETD lookalikes do not exercise a competitive restraint on ETDs can call into question the Commission’s conclusions.

89      In the second place, the applicant claims that the Commission’s conclusion that OTC derivatives belong to a separate market from ETDs because there is a group of ‘customers’ who can trade only ETDs is flawed.

90      In that regard, it must be held at the outset that that claim is the result of a misreading of the contested decision. As the Commission rightly observes, that decision does not make a causal relationship between the existence of a group of customers that trade only ETDs and the conclusion that ETDs and OTC derivatives belong to separate markets. It is apparent, furthermore, from footnote 198 of that decision that the conclusions as to the definition of the relevant market are not dependent on there being a separate category of customers that trade only ETDs. Lastly, it follows from recitals 1131 to 1342 of the same decision that the existence of a significant impediment to effective competition was established, regardless of the category of customers in question.

91      The applicant’s claim must therefore be rejected as ineffective.

92      In any event, the arguments put forward by the applicant in support of that claim, which essentially seek to call into question the existence of a category of customers that trade only ETDs, are unfounded.

93      First, the Court rejects the argument that, so far as concerns customers that trade only ETDs, the Commission refers only to equity derivatives, omitting interest rate derivatives.

94      It is expressly stated in recital 445 of the contested decision that, as concerns customers that can trade only ETDs, the relevant markets include the market for existing and new exchange-traded European interest rate futures and options. In addition, it must be noted that, in recitals 289 to 303 of that decision, the Commission demonstrated the existence of a category of customers that trade only on an exchange, regardless of the asset classes in question. Moreover, in recital 265 of that decision, the Commission considered that the level of competitive constraint between ETDs and OTC derivatives was not substantially different for any of the asset classes concerned. Lastly, it should be noted that nothing in the contested decision supports the conclusion that the Commission failed to take into account the interest rate derivatives market in respect of customers that trade only ETDs. In that regard, from the assertion in recital 293 of the decision that retail investors who do not trade OTC derivatives are mainly active in the trading of equity derivatives it cannot be inferred that those investors trade only equity derivatives to the exclusion of interest rate derivatives. Lastly, it must be noted that, in recital 642 of the decision, the Commission states, within the context of the analysis of the competition between the parties to the concentration on interest rate futures and options, that its assessment applies for both customers that trade only ETDs and customers that trade both ETDs and OTC derivatives.

95      Secondly, as regards the argument that the Commission’s conclusion that the parties to the concentration can discriminate against customers that can trade only ETDs is incorrect, the Court finds that there is nothing to call into question the Commission’s assessments in that regard.

96      It is apparent from the contested decision that the exchanges are able to identify the customers that trade only ETDs. Thus, the Commission noted, in recital 297 of that decision, that, within the Commission’s sample of the group of customers who only trade ETDs, 12 out of the 13 respondents were direct exchange members of one or both the derivatives exchanges of the parties to the concentration, with the result that at least some portion of customers that trade only ETDs were direct exchange members and therefore could be identified by the exchanges. The applicant has put forward no evidence to invalidate that analysis, merely criticising, in particular, the fact that the Commission had not stated which were the customers in question. As for the fact that the Commission acknowledged that it was not able to ascertain the proportion of customers that can trade only ETDs, it does not affect the finding of the existence of that category of customers.

97      Moreover, it follows from the contested decision that exchanges are able to discriminate on price between their customers. Thus, it must be stated that, in the application, the application does not dispute the assertion in recital 298 of that decision that an NYSE Euronext internal document reveals the discount strategy targeted at price-sensitive customers. The applicant has also put forward no evidence capable of challenging the assertion in recital 299 of that decision that exchanges are able to apply different fees depending on whether the trade is executed for an exchange member’s own account or for an end-user; that assertion is indeed substantiated by a specific example concerning the pricing of Dutch stock options on Liffe. Lastly, the argument that it is not possible to discriminate on price against end-users is irrelevant, since the Commission’s conclusions refer to customers of the parties to the concentration and not to end-users on whose behalf those customers act. In that regard, it is, moreover, important to note that, as is apparent from the wording, in particular, of recitals 298 and 299 of the decision, and from this judgment (see, in particular, paragraphs 107 to 118 below), contrary to what is suggested by the applicant, the contested decision does not refer to direct price discrimination against end-users, such discrimination being envisaged only with regard to customers of the parties to the concentration. It should also be noted that the Commission did not claim, in the decision at issue, that an exchange could identify the end-user on whose behalf a customer executes trades, with the result that the applicant’s argument that that identification is not possible is also irrelevant. The applicant’s assertion that it is appropriate to provide for different fees depending on the accounts through which the trade is executed does not call into question the Commission’s assessments and tends in fact to confirm them. Thus, as the Commission states, by acknowledging, in the application, that exchanges charge lower fees for trades on certain accounts, the applicant confirms the existence of possible price discrimination by exchanges.

98      Finally, and in any event, as Icap essentially submits, the question whether the parties to the concentration can discriminate against customers that trade only ETDs is irrelevant in the present case. It follows from the contested decision that, if the concentration were to materialise, the customers of those parties that trade only ETDs would not be able to switch to another exchange.

99      The applicant’s argument that the Commission incorrectly concluded that the parties to the concentration can discriminate against customers that trade only ETDs must therefore be rejected.

100    Thirdly, the applicant cannot succeed with its argument that the evidence on which the Commission relied does not support its claim that customers of the parties to the concentration and end-users which allegedly can trade only ETDs are price-inelastic.

101    By that argument, the applicant essentially criticises the composition of the sample selected by the Commission within the context of its examination and the conclusions drawn by the Commission.

102    In that regard, as is apparent from recital 294 of the contested decision, in order to conclude that it was unlikely that the group of customers who trade only ETDs would switch to OTC derivatives in response to a 5% to 10% increase in the overall cost of trading for ETDs on exchange, the Commission took into account a group of customers constituted by including all those respondents who consistently declared both in the first and second phrase market investigation that they trade only ETDs. It is a group of 13 customers. Among those customers, only one indicated that it would consider switching to OTC derivatives as a reaction to an increase in the price of ETDs and only if that would make economic sense. The others indicated that they would either continue trading on exchange, or switch to another multilateral trading facility if available, and that in any event OTC would not be an option.

103    In the present case, the applicant has put forward nothing to call into question the relevance of the Commission’s sample. That conclusion is not undermined by the applicant’s reference to the fact that seven customers who had not indicated in the first phase investigation that they could trade only ETDs did so in the second phase, and that six of those customers indicated that they would either continue trading the contract on exchange, switch to another exchange or multilateral trading facility if available, or abandon the trade, in response to a 5% to 10% increase in the overall cost of trading for ETDs. The Commission states, without being validly challenged by the applicant, first, that the six customers in question did not provide a consistent answer between the first and second phases of the market investigation and, second, that only one of those customers indicated that it would abandon exchange trading. The applicant is therefore wrong in taking the view that it could be considered that those six customers were price-sensitive.

104    In the third place, the applicant claims that the Commission’s conclusion that there are distinct markets for customers who can and those who cannot trade OTC is unsubstantiated and erroneous.

105    In that regard, it is sufficient, in order to reject that claim, to refer to the considerations set out in paragraph 90 above.

106    In any event, it must be observed that none of the arguments put forward by the applicant can call into question the conclusions of the contested decision concerning the definition of the relevant market. In that regard, it is apparent from recital 445 of that decision that the Commission took the view that the relevant markets in the area of derivatives trading and clearing were, as concerns, on the one hand, customers that can trade only ETDs, (i) the market for existing and new exchange-traded European interest rate futures and options possibly subdivided into STIR derivatives and LTIR derivatives, (ii) the market for existing and new European single stock equity futures and options, and (iii) the market for new European equity index futures and options. As concerns, on the other hand, customers that trade both ETDs and OTC derivatives, the Commission took the view that the relevant markets were (i) the market for existing and new exchange-traded European interest rate futures and options possibly subdivided into STIR derivatives and LTIR derivatives, and possibly comprising ETD lookalikes, (ii) the market for existing and new European single stock equity futures and options, possibly comprising ETD lookalikes, and (iii) the market for new European equity index futures and options. In that regard, the Commission considered that, given the small size of the ETD lookalikes segment, it could be left open whether, for customers that trade both ETDs and OTC derivatives, ETD lookalikes belonged to the same market as ETDs as the competitive assessment would remain the same regardless of whether or not, for that category of customers, ETD lookalikes were included in the relevant product market.

107    In the present case, first, as for the argument that the Commission regards end-users as customers, it must first of all be noted that it is apparent from reading the contested decision as a whole that the Commission based its analysis primarily on direct exchange customers, in particular on their responses to questionnaires Q1 and Q8 sent, respectively, in the first and second phases of the market investigation.

108    Next, it must be observed that nothing in the contested decision permits the inference that the analysis at issue stems from confusion between, on the one hand, customers of the parties to the concentration and, on the other, those customers’ customers or end-users. Moreover, in the application, the applicant does not submit, in that regard, any arguments to support its claim that ‘the Commission fails to verify the term “customer”’ and ‘seems to call an “end-user” a “customer”’.

109    In the reply, the applicant repeats its claim that the confusion between customers and end-users ‘continues in multiple places in the [contested] decision’.

110    In that regard, the applicant claims that the Commission considered the responses to the questions of entities that were not customers of the parties to the concentration to be customers’ responses.

111    It must be noted that that complaint is unfounded and it is not necessary to rule on its admissibility, it not having been expressly submitted at the stage of the application. In order to assess the justification for taking into account the responses to the questionnaires, it is necessary to take into account the proportion of responses received from customers of the parties to the concentration who were active in the field of derivatives in relation to all of the responses received and not in relation to the number of questionnaires sent. It is apparent from the file, and in particular from footnotes 14 and 15 of the contested decision, as well as from the explanations provided by the Commission in the rejoinder and the annexes thereto, that around 70% of all the responses to questionnaires Q1 and Q8 came from customers of one or other of those parties active in the field of derivatives. It should be added that, among the other responses, some were provided by associations of undertakings, some of which included, among their members, customers of those parties, and others did not include a response to the section dedicated to derivatives and were therefore not taken into account by the Commission since they were not informative, as is apparent from footnote 18 of that decision. It follows that the applicant is wrong to claim that the analysis of the responses to questionnaires Q1 and Q8 demonstrates that those responses come for the most part from entities that were not customers of the same parties active in the field of derivatives and that the Commission therefore relied to a large extent on incorrect information in reaching its conclusions in that decision, and that this affected, inter alia, the definition of relevant markets.

112    Moreover, there is nothing which permits the inference that the Commission relied, in the contested decision, on responses of entities that were not customers of the parties to the concentration instead of responses of entities that were.

113    In that regard, it must, as a preliminary point, be observed that, although the contested decision uses, in some of its recitals, such as recitals 291 or 304, the term ‘client’ to refer not to the customers of the parties to the concentration, but to those customers’ customers, a reading of that decision nevertheless makes it possible to understand easily and unambiguously, in the particular context, whether the Commission is referring, in a given recital, to those parties’ customers, those customers’ customers or to end-users.

114    Next, the applicant’s claims concerning an alleged confusion in the contested decision between customers and end-users must be dismissed, since the three examples of alleged confusion in that regard, put forward for the first time in the reply, have no factual basis.

115    So far as concerns the analysis of customers that can trade only ETDs, it is appropriate, first of all, to dismiss the claim that the Commission’s analysis is inaccurate on the ground that it relies on the responses provided by respondents to questionnaires Q1 and Q8 and is based on the premiss that those responses come from customers, whereas they come from end-users. As is apparent from the foregoing (see, in particular, paragraph 111 above), not only are the applicant’s claims relating to the responses to those questionnaires incorrect, but, in addition, as the Commission maintains in its conclusions relating to customers that can trade only ETDs, it relied on the responses of direct exchange customers active in the field of derivatives, who indicated that they trade only ETDs. As for the fact that the Commission also referred to the responses to questionnaire Q2, which was sent to investment companies and retail investors which are not customers of the parties to the concentration but are nevertheless users of derivatives, it should be noted that the Commission did not rely only on such responses, as follows from recitals 289 and 290 of the contested decision, and that it relied on those responses in order to show that those users had no mandate to trade OTC derivatives, which implies that exchange customers could not do it when acting on behalf of such users. In addition, it is apparent from recital 375 of that decision that the market investigation provided ample evidence that ‘the decision of whether or not to trade OTC, in those instances where both routes are possible, is rarely left by clients to brokers …[, since] virtually all respondents indicated that they specify their choice of execution mechanism (on exchange or OTC) when they trade derivatives contracts through their brokers’. Thus, the fact that some customers of the parties to the concentration that trade ETDs are in a position to trade OTC derivatives does not mean that they can actually do it, having regard, in particular, to the requests of their own customers who do not want to trade OTC derivatives and therefore influence their conduct. Exchange customers can thus trade derivatives for their own account, but also on behalf of their own customers, who may not give them any discretion in this respect, in particular as regards the choice to trade ETDs or OTC derivatives. Moreover, as is apparent from recital 378 of that decision, it follows from the response [confidential] (1) of Liffe, referred to in recital 377 of the same decision, that broker-dealers often have very limited discretion on where to place an order. Therefore, the Commission did not err in taking the responses to questionnaire Q2 into account, since they concern the conduct of the exchange customers’ customers, which influences the conduct of those exchange customers. The same is true as regards the mention, to which the applicant refers, of a response of the Association for Financial Markets in Europe (AFME) concerning its members’ customers, who may be exchange customers. Its response shows that, according to the AFME, banks, which are exchange customers, can trade only the derivatives that their clients want to use and that, given that those clients have to operate within the constraints of the current market structure, and will therefore prefer ETDs, those clients will trade only ETDs. The taking account of that response is therefore relevant in the context of the conclusion that a group of customers exists that trade only ETDs. For the same reason, it is necessary to reject the applicant’s argument referring to recitals 292, 297 and 301 of the contested decision and seeking to illustrate the alleged error at issue. Lastly, as regards the responses taken into account within the context of the cross price elasticity test, it is sufficient to note that that test is based on the responses to questionnaire Q8, in particular the responses to question 11 of that questionnaire. However, as has already been observed, the responses were mostly provided by customers of the parties to the concentration who were active in the field of derivatives. The responses not provided by such customers were either not taken into account where they did not reply to the questions concerning derivatives, or were taken into account with the mention of the specific position of the respondent, as is apparent, for example, from footnote 196 of the contested decision. Finally, for the sake of completeness, it should, in any event, be observed that, in the course of its analysis, the Commission cannot be prevented from taking into account all of the responses which it considers appropriate, including those not coming from customers of the parties to the concentration, provided that those responses have a clear informative content and are relevant for the purposes of its analysis.

116    As regards the analysis of customers that trade both ETDs and OTC derivatives, it is necessary to reject, for the same reasons as those set out in the examination of the applicant’s first example, the arguments set out in that regard by the applicant, since they are essentially similar. In particular, as has already been noted, the Commission could validly rely on the responses to questionnaires Q1 and Q8 which came from customers of the parties to the concentration who were active in the field of derivatives, and not take them into account in the absence of a response to the questions concerning those derivatives, or, in the event of a response to those questions, take them into account with the mention of the specific position of the respondent. The Commission could also rely on questionnaire Q2 for the reasons previously set out (see paragraph 115 above). Moreover, as has also been noted, it was permissible for the Commission to take into account the responses irrespective of the questionnaire concerned — including those from entities that were not direct customers of the parties to the concentration, as was the case of the Warsaw Stock Exchange referred to in footnote 251 of the contested decision — provided that it considered that those responses had a clear informative content and were relevant for the purposes of its analysis. Lastly, it must be stated that, read in context, none of the recitals of the contested decision referred to by the applicant — namely recitals 304, 311, 317, 318, 327, 332, 334, 336 and 342 — or the footnotes to those recitals reveal the existence of the alleged confusion in the Commission’s reasoning between exchange customers and those customers’ customers. As regards, moreover, recital 303 of the contested decision, it does not use the term ‘end-user’, as claimed by the applicant, but the term ‘user’, which, read in context, undoubtedly refers to customers of the parties to the concentration. As for recital 337 of that decision, it mentions the term ‘customer’ in a quotation from a document written by the applicant. However, it seems to follow from that document that the customers at issue are end-users, as will be noted in paragraph 221 below; it must in any event be noted that that document is not unambiguous in that it uses, within the context of the same finding concerning the difference in price of OTC and ETD trading, the terms ‘end customer’ and ‘customer’.

117    So far as concerns the analysis of the classification of derivatives on the basis of the type of underlying asset, it must be noted, as a preliminary point, that, in so far as the applicant refers to the distinction between LTIR derivatives and STIR derivatives, the arguments put forward are ineffective, since, as is apparent inter alia from recital 814 of the contested decision, the Commission left open the question whether the European interest rate derivatives market should be further subdivided into LTIR and STIR derivatives. Next, it should be noted that, for the reasons already stated, it was permissible for the Commission to take into account the responses to questionnaire Q2 (see, in particular, paragraph 115 above). Lastly, it is apparent from section 11.1.1.2.2.2 of the contested decision, read as a whole and with regard to its context, that the Commission did not confuse, on the one hand, customers of the parties to the concentration and, on the other hand, those customers’ customers or end-users. In particular, it was permissible for the Commission to examine the aspects related to the request of the exchange customers’ customers in order to examine the conduct of those exchange customers, who trade not only for their own account, but also on behalf of their customers, who do not give them discretion in this respect.

118    It follows from the foregoing that the Court must reject the applicant’s arguments alleging confusion between customers of the parties to the concentration and end-users, since the Commission committed no error in that regard in its reasoning. It is therefore necessary to reject the applicant’s line of argument concerning the alleged consequences of that alleged error on the existence of a significant impediment to effective competition. Moreover, in so far as that latter line of argument might also relate to off-order book services and to trade registration services, as suggested in the reply, it must be rejected, since it was not submitted in the application, is not sufficiently substantiated and is unfounded, for the same reasons as those set out above.

119    Secondly, in the light of the foregoing considerations, in particular those set out in paragraph 94 above, the Court must reject, as having no factual basis, the applicant’s argument that the Commission did not provide any evidence of a group of customers that trade only exchange-traded interest rate derivatives.

120    Thirdly, as for the fact that the ETD lookalikes segment may represent between half and one-and-a-half times the ETD segment, it is sufficient to refer to the considerations set out in paragraphs 78 to 80 above. The applicant is therefore wrong to claim that the statement that the competitive assessment remains the same is based on circular reasoning. As is apparent from the contested decision and, in particular, recital 445 thereof, the analysis of the competitive effects of the proposed concentration would be the same, regardless of whether or not ETD lookalikes were integrated into the relevant market, given the small size of the ETD lookalikes segment. In the light of the foregoing, the applicant’s argument that the Commission did not assess the competitive effects in each of the markets identified and did not take into account the existence of two separate customer groups in its analysis of equity index derivatives is also irrelevant. Lastly, the argument that the Commission did not provide market share data for ETDs and the argument that the Commission did not demonstrate that ETD-only customers would be charged different prices than other customers, relied upon in order to prove that they belonged to different markets, must also be rejected in the light of the foregoing considerations. Moreover, the analysis in recitals 289 to 303 of the contested decision shows, to the requisite legal standard, the existence of a category of customers that trade only on an exchange, regardless of the asset classes in question.

121    In the fourth place, the applicant claims that the Commission incorrectly refused to consider that OTC derivatives constituted an out-of-market constraint which must be taken into account.

122    In that regard, it should be observed, as the Commission submits, that it is apparent from footnote 485 of the contested decision that, ‘[i]n line with the market definition in this case and in light of the conclusion that ETDs and OTC derivatives belong to separate product markets with respect to all relevant product markets, the level of competitive constraint from OTC trading (be it out-of-market constraint) is not further analysed in [that] decision’.

123    It must be stated that none of the applicant’s arguments can call into question the Commission’s conclusions.

124    First, the applicant’s argument that the market investigation demonstrated that a number of important customers consider OTC derivatives to be a sufficiently close substitute for ETDs and that they would switch from ETDs to OTC derivatives to avoid a 5% to 10% price increase on total cost of trading is not able to refute the Commission’s conclusions. The applicant merely refers to the responses of three customers. However, as the Commission in essence states, none of those customers unconditionally and unequivocally stated that, in order to avoid the increase in price of ETD trading, he would switch to OTC derivatives. The Commission also states, without being contradicted, that, during the second phase of the market investigation, two of the customers did not select the response indicating that they would switch to OTC derivatives.

125    Secondly, the Court must also reject the argument that, in its Working Paper concerning the Impact Assessment on the Proposal for a Council Directive on a common system of financial transaction tax and amending Directive 2008/7/EC (SEC (2011) 1226 final), the Commission acknowledged that adding to the cost of ETDs could ‘give an incentive to shift from exchange based trading towards OTC trading’. First of all, the exact quotation referred to by the applicant states that, ‘if a developed OTC-market for a financial product exists, a tax on exchange based trading of the same product will give an incentive to shift from exchange based trading towards OTC trading’. Furthermore, it should be noted that, in itself, that quotation does not specifically concern derivatives, but addresses the general issue of exchange and OTC trading, without distinguishing the financial derivatives concerned. In those circumstances, the Commission’s alleged acknowledgment cannot be inferred from that isolated and general quotation. Moreover, that quotation is included in an annex to the working paper, namely a report of which the Commission is not the author, it having been produced, at its request, by an economic consultant. In any event, since the conclusion in the contested decision is, unlike that working paper, based on the responses provided within a specific market investigation, aimed at implementing the cross price elasticity test, that paper is irrelevant.

126    The applicant is therefore incorrect in claiming that the Commission committed a manifest error in refusing to consider that OTC derivatives constituted an out-of-market constraint. In the light of the foregoing, the applicant is also wrong to allege an infringement of the 1997 notice. Moreover, as is apparent from an overall reading of the contested decision, the applicant also has no foundation for claiming that the Commission infringed its obligation to state reasons in that regard. Lastly, as regards the alleged infringement of the Guidelines on the assessment of horizontal mergers under Regulation No 139/2004 (OJ 2004 C 31, p. 5, ‘the 2004 Guidelines’), it is sufficient to note that the applicant refers, in that regard, to the analysis of buyer power which, in its view, the Commission should have carried out. However, that analysis is part of the examination of the factors capable of counteracting the anti-competitive effects of a concentration, and not part of the definition of the relevant market, which is at issue in the examination of the present complaint.

127    Thirdly, it should further be observed in that context that, by focusing its line of argument on ETD lookalikes, which are not alleged to account for a major proportion of OTC derivatives, the applicant has not validly shown that the Commission wrongly concluded, in recital 367 of the contested decision, that even for customers that trade both ETDs and OTC derivatives, the ability to directly substitute between ETDs and OTC derivatives would be at best limited to ETD lookalikes. In particular, the applicant has been unable to call into question all of the information set out, in particular, in recitals 287 to 367 of that decision which led the Commission to consider that, with the exception of ETD lookalikes to a certain extent, OTC derivatives were not a substitute for ETDs, and thus fails to show the substitutability between ETDs and OTC derivatives which were not ETD lookalikes. In that regard, it is important to note that the applicant has not put forward any evidence to show that, in so far as those findings concerned those ETD lookalikes, the Commission committed a manifest error of assessment in taking the view — as follows, in essence, from that decision — that there were differences between OTC derivatives and ETDs concerning, in particular, average trade size, market participants, the need and purpose which they satisfied, trading, cost, duration, liquidity and clearing. Similarly, by merely arguing — incorrectly, as is apparent from paragraph 86 above — that the Commission should have analysed whether ETD lookalikes have a risk profile that is different from OTC derivatives, the applicant has failed to put forward any evidence to refute the Commission’s assertion, set out in recital 318 of the same decision, that the counterparty, the operational, the legal and the liquidity risks on exchange and in the OTC market varied significantly and were likely to induce users to prefer exchange trading, in so far as that assertion related to OTC derivatives which were not ETD lookalikes.

128    It follows from all the foregoing that the first complaint must be rejected.

–       The second complaint

129    The applicant claims that the Commission’s conclusion that the parties to the concentration constrain each other’s exchange fees for interest rate derivatives and single equity derivatives is vitiated by errors of law and assessment.

130    In support of the present complaint, the applicant essentially puts forward four claims in the application.

131    In the first place, the applicant claims that the Commission did not base its conclusion on empirical evidence. The Commission failed to engage in a quantitative analysis of competitive constraints and in that regard misconstrued the judgment in Ryanair v Commission, cited in paragraph 61 above. According to the applicant, the Commission was also wrong to conclude that the necessary empirical evidence was not available, since such evidence exists but was not gathered by the Commission.

132    In that regard, it should be noted that, in recital 246 of the contested decision, the Commission stated, first, that, pursuant to the established case-law, there was no hierarchy between the types of evidence used by the Commission in merger cases as the Commission had to make an overall assessment of the case, and, secondly, that the Commission had a certain discretion, especially with respect to assessments of an economic nature. In recitals 247 to 251 of that decision, the Commission analysed the appropriateness of conducting any quantitative analyses and took the view that those analyses would not be meaningful. In recital 252 of that decision, the Commission rejected the objections raised by the parties to the concentration that it relied on anecdotal evidence, recalling, first, that it had conducted a market investigation and collected extensive information from a substantial number of relevant market participants, and, secondly, that it had analysed a substantial amount of the parties’ pre-merger internal documents which corroborated findings from the market investigation. In those circumstances, the Commission stated, in paragraph 253 of the same decision, that, in its approach to the definition of relevant markets in the area of derivatives, it had performed an overall assessment based on all available evidence; its conclusions were therefore based on that extensive and coherent body of evidence collected throughout the market investigation.

133    In the present case, it must be borne in mind that it is apparent from the judgment in Ryanair v Commission, paragraph 61 above (paragraph 136), that there is no need to establish a hierarchy between ‘non-technical evidence’ and ‘technical evidence’. It is the Commission’s task to make an overall assessment of what is shown by the set of indicative factors used to evaluate the competitive situation. It is possible, in that regard, for certain items of evidence to be prioritised and other evidence to be discounted. That examination and the associated reasoning are subject to a review of legality which the Court carries out in relation to Commission decisions on concentrations.

134    It must be observed that, as is apparent from recitals 247 to 251 of the contested decision, the Commission took the view that the quantitative analysis was not meaningful, with the result that it could, in accordance with the judgment in Ryanair v Commission, cited in paragraph 61 above, dismiss that analysis. The applicant is therefore wrong to claim that the Commission misconstrued that judgment.

135    However, the applicant’s arguments intended to show, in essence, that the Commission wrongly dismissed the relevance of a quantitative analysis must still be examined.

136    In that regard, it should, first of all, be recalled that, in recitals 247 and 248 of the contested decision, the Commission analysed the appropriateness of conducting any quantitative analyses. It noted in particular that, as a matter of principle, complex inferences can sometimes be validated or rejected by conducting more sophisticated empirical analysis, subject, inter alia, to the availability, quality and variability of the data. The Commission also stated that, in order to quantitatively identify the competitive constraint the parties to the concentration exercised on each other, variations in the competitive pressure of those parties on each other through variability in marginal cost, entry or exit events, or changes in the regulatory structure would need to be observed. The Commission noted that such shifts in the competitive constraint had not been available and also that the price data required to conduct any meaningful empirical analysis were not available. The Court finds that there is no evidence to suggest that those considerations are vitiated by an error, and that the applicant has not produced any evidence to refute that analysis, simply asserting that the Commission’s claims are incorrect and that the Commission was more concerned by the difficulty of the analysis than by the unavailability of the data. Next, as for the argument that the Commission relied on an analysis of the average amounts of exchange fees in recital 740 of the contested decision, it is sufficient to note that, first, in that recital, the Commission merely recorded material from those parties’ documents and did not conduct a quantitative analysis and, secondly, the fact that data concerning the average amount of exchange fees on the United Kingdom government bond market (‘gilts’) were available did not mean that all the data necessary for a comprehensive and complete quantitative analysis of the prices on the derivatives market were available. Moreover, as regards the applicant’s criticism of the statement in recital 249 of the contested decision that an analysis of explicit ETD fees would fail to take into account the other components of the total cost of trading, where the total cost of carrying out a derivatives transaction is the parameter taken into consideration by customers when deciding where to trade, it is sufficient, in dismissing that criticism, to refer to the considerations set out in paragraph 84 above. Lastly, as for the argument that empirical data did exist, the applicant refers to a May 2011 report entitled ‘Monitoring prices, costs and volumes of trading and post-trading services’ and drawn up for the Commission, a report which, according to the applicant, contains extensive price and cost data. However, as the Commission notes, that report concerns the cash markets and not the derivatives markets. That report was therefore not relevant. In that regard, the argument that, if it were possible to collect data for the cash markets, such data collection would also be possible for the derivatives market must be rejected. It was for the parties to the concentration to provide the Commission with all the information and evidence in support of their claim relating to the quantitative analyses referred to in recital 247 of the contested decision, the non-conduct of which they criticised during the administrative procedure. It was for the parties to the concentration, in particular, to provide all the information which they considered relevant, with the result that they cannot now criticise the Commission for not having taken into account, at the time of the adoption of the contested decision, data which they claim to have been able to produce, but did not actually submit during the administrative procedure.

137    In the second place, the applicant complains that the Commission’s conclusion that the parties to the concentration’s interest rate derivatives are in competition is incorrect.

138    In that regard, it should be noted that the Commission examined, in recitals 644 to 800 of the contested decision, effective competition in existing interest rate derivatives and, in recitals 801 to 813 of that decision, competition to introduce new products in the area of European interest rate derivatives. The Commission concluded, in recital 814 of the contested decision, that Eurex and Liffe were the only significant players and each other’s closest actual and potential competitor in the area of European interest rate derivatives as concerns both existing and new products. The Commission took the view that the proposed concentration would eliminate the significant competitive constraint that Liffe and Eurex currently exert upon each other in that segment and would constitute a merger to near-monopoly irrespective of whether the market should be further subdivided into STIR and LTIR derivatives or according to the currency. The Commission noted that, following the proposed concentration, derivatives users trading European interest rate derivatives would see their choice of platforms significantly reduced, which would be likely to lead to higher exchange fees and less innovation.

139    In the present case, first, the applicant’s argument that, as far as LTIR derivatives and STIR derivatives are concerned, the Commission did not carry out an analysis, in accordance with the 1997 notice, of the competitive constraints faced by the parties to the concentration must be rejected from the outset as irrelevant. As is apparent, in particular, from recitals 419 and 814 of the contested decision, the Commission took the view that it can be left open whether the market for listed interest rate derivatives should be further subdivided into STIR and LTIR derivatives as the competitive assessment with respect to interest rate derivatives would remain the same. The Commission thus took the view that it was apparent from the examination of competition in the field of European interest rate derivatives, the conclusion of which is set out in recital 814 of that decision, that the proposed concentration would eliminate the closest actual and potential competitors, whether or not that market is divided into STIR and LTIR derivatives. In those circumstances, the Commission was not required to undertake the analysis, referred to by the applicant, of the substitution between those groups of derivatives in the presence of a small permanent increase in the price of one of them. In any event, it is apparent from that decision, and in particular from recital 409, that the question of the substitutability of those derivatives was referred to within the context of the market investigation and that ‘the majority of sell side (wholesale) customers indicated that STIR and LTIR derivatives are not substitutable for their use[, but that,] … the market investigation [had] also indicated there was no hard-and-fast consensus among market participants as to where one category began and the other ended, and that the [parties to the concentration] compete in providing exposure to short and medium term interest rates’.

140    Secondly, as for the applicant’s argument that the Commission’s analysis of LTIR derivatives and STIR derivatives is incompatible with the analysis followed to distinguish between ETDs and OTC derivatives, it must be noted that the Commission responded to that allegation in recital 418 of the contested decision, stating that, although the frontier between STIR and LTIR derivatives was blurred, the line between OTC derivatives and ETDs was not. The applicant has failed to put forward any evidence that is sufficient to refute that response. Furthermore, as is apparent from section 11.1.1.2.2.1 of that decision, the conclusion that ETDs and OTC derivatives belong to different markets is not based solely on the ground that ‘the economic parameters of these derivatives are standardized and 100% equal’, as the applicant suggests, but also on a precise and detailed examination of all the parameters and characteristics of those derivatives and the available evidence, including, in particular, the results of the market investigation and internal documents of the parties to the concentration. The allegation of inconsistency must therefore be rejected.

141    Thirdly, the applicant’s argument that the examples of potential competition provided by the Commission in the contested decision do not meet the level required to constitute solid evidence must be rejected as being ineffective. The examples concerned were given only for the purpose of demonstrating the existence of potential competition between the parties to the concentration on the European interest rate derivatives market where one of those parties has the bulk of the liquidity, a situation examined in section 11.2.1.4.3 of the contested decision. Since they were not used in demonstrating the existence of effective competition in existing interest rate derivatives in section 11.2.1.4.2 of the contested decision, the criticism of those examples is not capable of calling into question the Commission’s conclusion, set out in recital 701 of that decision, that the concentration would eliminate actual competition between Eurex and Liffe in respect of European interest rate derivatives. In addition, it should be noted that, in addition to the examples in question, the Commission, in order to demonstrate the existence of potential competition between those parties on the European interest rate derivatives market where one of them has the bulk of the liquidity, also relied on internal documents of the parties in question (see, for example, recitals 704 and 717 to 720 of that decision), on the responses of the parties in question to the statement of objections (see, for example, recital 706 of the same decision), and on the results of the market investigation (see, for example, recitals 703, 705 and 707 of the decision at issue). Therefore, even if the criticism of the examples in question were well founded, it could not call into question the finding of the existence of that potential competition.

142    Moreover, the argument at issue is unfounded. Thus, as regards, first, the example of the ‘Battle of the Bund’, the Commission acknowledged that it ‘occurred in the past’ (recital 717 of the contested decision) after having qualified the relevance of that example by observing that it was ‘instructive insofar as it show[ed] that even the entire liquidity in one contract [could] shift from one exchange to another under certain circumstances’ (recital 710 of that decision); the Commission did not therefore err in referring to that event, having regard to the manner in which it did so. As regards, secondly, EuroMTS Bond Index Futures, the Commission did not disregard their failure, since it explicitly stated that ‘EuroMTS Bond futures have been delisted’ (recital 717 of that decision) and since it limited its finding to the fact that it was ‘an instance of actual, even if limited, competition in the past and illustrate[d] the constraint from potential competition to Eurex in respect of its euro LTIR franchise’ (recital 725 of the same decision). As regards, thirdly, Euro-BTP Futures, it must be noted that the Commission does not deny that Liffe did not ultimately launch that type of product, that the contested decision states that ‘Liffe nonetheless considered doing so and could have done so’ and that, ‘with appropriate support from market participants and measures to support liquidity, it might also have been successful, and it could still be successful if Eurex were, to use the expression adopted by one of its representatives at the Oral Hearing, to “take its eye off the ball”’ (recital 733 of the decision at issue). In addition, the Commission also refers, in support of its arguments, to an internal document of NYSE Euronext, the interpretation of which is not contested by the applicant. As regards, fourthly, the example of gilts, the Commission does not dispute that the applicant never issued them, but the contested decision refers to that product in order to demonstrate the existence of potential competition between the parties to the concentration in that regard, taking into account, inter alia, their internal documents, which clearly show that the possibility for Eurex to launch such a product constituted a ‘threat’ for NYSE Euronext (recital 737), to which NYSE Euronext considered responding [confidential] (recital 738). The applicant does not put forward any argument to contest the relevance of those documents and the interpretation adopted by the Commission. Therefore, in those circumstances, the Commission did not commit an error of assessment in choosing that example in order to illustrate the existence of potential competition. As regards, fifthly, interest rate derivatives linked to the interbank offer rate in Euros (‘Euribor’), it should be noted that that example was taken into account by the Commission in order to demonstrate the existence of effective competition in existing interest rate derivatives and not, as is the case of the other examples referred to, in order to demonstrate the existence of potential competition between the parties to the concentration on the European interest rate derivatives market where one of those parties has the bulk of the liquidity. The applicant’s argument in this respect will be examined in paragraphs 151 to 152 below.

143    It follows from the foregoing that none of the arguments put forward by the applicant permits the inference that the Commission did not carry out a correct analysis of the competitive constraints faced by the parties to the concentration.

144    In the third place, the applicant claims that the Commission’s argument that Eurex’s LTIR derivatives and Liffe’s STIR derivatives constrain each other competitively is incompatible with its refusal to consider Chicago Mercantile Exchange’s (‘CME’) Eurodollar interest rate as constituting a competitive constraint on either party to the concentration.

145    In that regard, it should be observed that the Commission noted, in recital 404 of the contested decision, that exchange-traded interest rate derivatives have an intrinsic link with the currency on which the underlying is based. The Commission concluded, in recital 406 of that decision, that interest rate derivatives, be they short-term or long-term, based on different currencies are not generally substitutable and that the same would also apply to euro and sterling (GBP) based interest rate derivatives.

146    In the present case, the applicant asserts that the Commission’s claim that CME’s STIR derivatives do not constrain Liffe’s STIR derivatives, on the ground that derivatives based on different currencies are not substitutable, contradicts its argument that Liffe’s STIR derivatives constrain Eurex’s LTIR derivatives, even though those products are denominated in different currencies. However, it should be noted that, as is apparent from the notification of the proposed concentration, Eurex offers only interest rate derivatives denominated in euros and that, in 2010, only [confidential] of Liffe’s trades in interest rate derivatives were denominated in a currency other than the euro. Most of Liffe’s trades therefore relate to the same currency as that of Eurex’s trades, whereas that is not the case of CME’s STIR derivatives, with the result that the Commission’s claim is not contradictory.

147    As regards the argument that the Commission failed to provide evidence explaining why CME is not a competitor to Liffe but Eurex is, it must, first of all, be noted that the Commission examined, in recitals 752 to 778 of the contested decision, the competitive constraint exercised by CME. The Commission concluded, in recital 779 of that decision, that it was unlikely that CME would be in a position to exert a credible competitive pressure to the merged entity. It must be stated that, in the course of its examination, the Commission relied on various items of evidence including, in particular, responses to the market investigation, CME’s observations on the statement of objections, CME’s assertions at the hearing and internal documents of the parties to the concentration. It is also apparent from those recitals that the Commission examined the differences between CME’s offer and those of the parties to the concentration, noting, in particular, that the interest rate derivatives secured with Euribor and offered by CME concerned only future contracts and not options (recital 755) and that the offset offered by CME was lower than that offered by those parties (recital 757).

148    The Court rejects the argument, put forward in the reply, that the Commission wrongly ignored the competitive constraint constituted by CME’s large margin pool, on the ground that a GBP product offered a better alternative. The applicant has failed to put forward any evidence to validly call into question the assessments set out in recitals 404 to 406 of the contested decision, from which it is apparent that interest rate products, be they short-term or long-term, based on different currencies are not generally substitutable and that the same would also apply to euro and GBP based interest rate derivatives. Nor has the applicant adduced any evidence to refute the conclusion, set out in recital 758 of that decision, that the offsets between the respective products of the parties to the concentration were significantly higher than the offsets between those products and CME’s products. In particular, the applicant does not state to what extent the fact that, in general, the size of CME’s margin pool is greater than that of Liffe’s margin pool denominated in GBP might call into question the specific assessments of the Commission. Moreover, the Commission does not rely only on the size of the margin pool, but also on its composition. As for the assertion that there is a smaller number of market participants that trade both euro and GBP products than market participants that trade euro and United States dollar (USD) products, with the result that the fact that CME’s margin pool is largely USD denominated does not create an obstacle to competition, it is sufficient to note that the applicant does not refer, in that regard, to any evidence and makes a pure assertion. Therefore, although CME has a margin pool of a similar size, as the Commission indeed acknowledges, the fact remains that, due to, inter alia, its composition, it cannot constitute a competitive restraint.

149    In the fourth place, the applicant claims that the Commission’s conclusion that Eurex constrains Liffe’s pricing of STIR derivatives secured with Euribor is not supported by evidence and is manifestly erroneous.

150    In that regard, it should be observed that the Commission examined, in recitals 653 to 679 of the contested decision, competition between STIR derivatives based on euro interest rates. It concluded, in paragraph 680 of that decision, that Eurex and Liffe were each other’s closest and de facto only competitors in the area of European STIR derivatives and in particular Euribor futures and options. The proposed concentration would therefore result in a near-monopoly in the area of European STIR derivatives.

151    In the present case, first, as regards three month Euribor futures, it must be noted that, in the contested decision, the Commission held that Eurex’s market shares were ‘small but still non-negligible’ (recital 661) and that the number might appear ‘small’ (recital 662). As is apparent from the table set out in recital 661 of that decision, Eurex’s relative market share in the contracts at issue was [confidential] % in 2007, [confidential] % in 2008, [confidential] % in 2009 and [confidential] % in 2010. However, the Commission also noted that those numbers had been minimised by the parties to the concentration (recital 662), which the applicant does not expressly dispute in the application or the reply. In addition, the Commission also stated that the total volume of future contracts traded by CME represented one-tenth of Eurex’s average monthly volume in 2010 (recital 662), which made it possible, having regard to Eurex’s and Liffe’s market share and volume in three month Euribor futures (recital 661), to show that Eurex and Liffe were each other’s closest competitor. Moreover, as is apparent from that latter recital, Eurex continued to propose its offer in the field of three month Euribor STIR derivatives despite the smallness of its market share. Lastly, as is apparent from recital 663 of that decision, it follows from a market participant’s response to the market investigation that that market participant considered ‘actual competition [between Eurex and Liffe to be] marginal’, but that ‘Eurex [was] the only credible force constraining Liffe in terms of setting fees for European STIR derivatives contracts’ and that ‘Eurex [was] best suited to enter [that] market’. In those circumstances, notwithstanding the fact that, as the applicant essentially claims, the classification by the Commission of Eurex’s market shares as being ‘non-negligible’ is regrettable in the light of their very low level and is inconsistent with its previous practice, it should nevertheless be held that there was at the very least potential competition between Eurex and Liffe in the field of three month Euribor futures. Therefore, the Court must reject the applicant’s argument by which it disputes that Eurex exercised a restraint on Liffe in that regard because of the negligible nature of its market shares, since the Commission did not commit a manifest error of assessment in that context.

152    Secondly, as regards Euribor options, it should be noted that the Commission examined, in recitals 664 to 672 of the contested decision, competition in the field of those options and based its conclusions on internal documents of the parties to the concentration and on responses to the market investigation. The applicant is therefore incorrect in claiming that there is no evidence that Eurex continues to exercise a competitive restraint. In that regard, although, as the applicant notes, one of the documents on which the Commission relied states that ‘the Eurex threat [confidential]’, that was due to the fact that Liffe had [confidential] in order to react to the presence of Eurex. That document therefore confirms, in fact, the existence of a competitive restraint between Liffe and Eurex. In those circumstances, the applicant’s arguments contesting the Commission’s assessments of the competition exercised by Eurex on Liffe must be dismissed.

153    Thirdly, as regards the competitive restraint exercised by CME, it should be observed that the applicant is incorrect in claiming that the Commission’s comparison between the market shares of Eurex and of CME is unsubstantiated. As has already been noted in paragraph 151 above, it is apparent from recital 662 of the contested decision that the total volume of future contracts traded by CME represented one-tenth of Eurex’s average monthly volume in 2010. In addition, it should be noted that the Commission examined the competitive situation of CME in recitals 752 to 779 of the contested decision and that it did not conclude that CME did not exert any competitive constraint solely on the basis of the comparison of its market shares with those of Eurex in the field of Euribor STIR derivatives. In recital 779 of that decision, the Commission observed that CME would not be nearly as well placed to compete with the merged entity as the parties to the concentration were placed to compete with each other, owing to the fact that CME did not possess a similarly large and highly correlated margin pool allowing traders to offset positions taken along the European interest rate curve. In those circumstances, the Court must dismiss the applicant’s argument that the Commission should have acknowledged the competitive constraint exercised by CME.

154    Lastly, the claim that the evidence for effective or potential competition between the parties to the concentration is insufficient must be dismissed as inadmissible. That claim is expressed in general terms, since the applicant does not state to which market it refers. The applicant claims generally, in particular, that the contested decision does not offer sufficient and convincing evidence for effective or potential competition between those parties; that no convincing evidence exists that the competition between them is so relevant that it cannot be replaced by competition from other sources; that the parties explained that the competition between them was limited, and that competition with OTC trading and other platforms was more relevant. The applicant adds that none of the examples of alleged competition meet the burden of proof, but does not identify the matters at issue. Within the context of that claim, the applicant does not even state the specific assessment to which it refers, the relevant market to which that assessment applies or even the section of the decision to which it refers, with the result that the Court is not able to exercise its power to review legality in the light of that claim.

155    Assuming, in any event, that that claim relates to the Commission’s assessments concerning competition between the parties to the concentration which are being contested in the present complaint, it is apparent from the examination of this complaint that the Commission did not commit any manifest error of assessment.

156    It follows from the foregoing that the second complaint must be rejected.

–       The third complaint

157    The applicant claims that the Commission’s conclusion that the parties to the concentration constrain each other through innovation competition is manifestly incorrect.

158    In support of that complaint, the applicant puts forward, in essence, two claims.

159    In the first place, the applicant claims that the Commission’s conclusion that the competition between the parties to the concentration is the only driver of new product development is manifestly incorrect.

160    In that regard, it must be noted that, in recitals 560 to 600 of the contested decision, the Commission examined in general terms the competition for the introduction of new products that took place between the parties to the concentration before the concentration. The Commission concluded, in recital 601 of that decision, that those parties were competing at the level of introduction of new and improved contracts around their overlapping core franchises and were each other’s closest competitors in this regard. The Commission took the view, in recital 603 of that decision, that, even in the event that, post-merger, a certain innovation might reach the market in a timely fashion and in a form suited to customer needs, the merger would still result in less price competition during the period of establishment of liquidity as well as the loss of a pricing constraint from potential competition.

161    More specifically, the Commission also examined, in section 11.2.1.4.4 of the contested decision, the competition to introduce new products in the area of European interest rate derivatives; in section 11.2.1.5.4 of that decision, the competition to introduce new products in the area of European single stock derivatives and, in section 11.2.1.6.2 of that decision, the competition in index derivative innovation.

162    In the present case, first, it should be noted that, within the present claim, the applicant submits, in the application, that the conclusion, set out in recital 640 of the contested decision, that the concentration would significantly impede effective competition is unsubstantiated and that the quotations of responses to the market investigation mentioned in recital 622 et seq. of that decision do not support that claim. It must however be noted that that conclusion and those quotations concern the Commission’s examination of the competition between the parties to the concentration in technology, process and market design. Those arguments are therefore irrelevant to the present claim, which concerns innovation aimed at introducing new products.

163    Secondly, it must be noted that it is on the basis of an incorrect reading of the contested decision that the applicant suggests that the Commission took the view that the parties to the concentration were each other’s only constraint in terms of product innovation or that the competition between the parties to the concentration was the only driver of new product development. There is nothing in that decision which permits the inference that that was the Commission’s position. In particular, it should be noted that the finding in that decision that those parties are each other’s closest competitors does not mean that it is the ‘only’ competitive constraint.

164    Thirdly, it should be noted that nothing in the contested decision contradicts the applicant’s claim that the parties to the concentration would continue to innovate with respect to new products post-merger.

165    Fourthly, it is important to note that, in order to substantiate its conclusions concerning competition in new product innovation, the Commission relied on documents or statements of the parties to the concentration, responses to the market investigation and on past or recent specific examples. Those items are set out, in particular, in recitals 562 to 577 of the contested decision and suffice to substantiate the conclusion set out in recitals 601 to 603 of that decision. As has been stated, more specific items concerning competition in innovation with respect to European interest rate derivatives, European single stock derivatives and index derivatives are set out in sections 11.2.1.4.4.2, 11.2.1.5.4 and 11.2.1.6.2 of that decision.

166    It must be stated that the applicant has not validly called into question that body of items.

167    In that regard, it should be noted, in particular, that the applicant is wrong to submit that the Commission did not consider the roles played by other exchanges. In recitals 586 to 588 of the contested decision, the Commission dismissed the arguments that CME had exercised a constraint to the same extent as those exercised by the parties to the concentration with respect to innovation in interest rates derivatives. The assessments set out in those recitals are not called into question by the applicant. Moreover, with regard to the EURO STOXX and EuroFirst examples, cited in recitals 568 and 901 of that decision, the Court must reject as irrelevant the applicant’s argument that they cannot constitute an illustration of innovation competition, but at most give an indication of potential competition between existing products. The Commission defined the scope of those examples and expressly stated, in paragraph 568 of that decision, that these were ‘examples of past and recent competition between Liffe and Eurex to attract liquidity for new suites of products’. Similarly, in recital 902 of the same decision, the Commission defined the scope of the example, observing that, ‘while Eurofirst ultimately [had] not gained significant traction, this episode [illustrated] the competition in innovation’. The applicant is therefore incorrect in claiming that the decision at issue does not contain any example of competition between the parties to the concentration in innovation. Moreover, the documents of those parties and the responses to the market investigation, referred to in particular in recitals 562 to 577 of the decision at issue, substantiate to the requisite legal standard the existence of that competition.

168    As for the argument that the Commission did not evaluate the significance of the reduction in innovation, it must be observed that recital 636 of the contested decision, referred to in that regard by the applicant, is irrelevant, since it concerns technological innovation (see paragraph 162 above). In that regard, the applicant stated, in response to a written question from the Court, that it had cited that recital on the ground that it took the view that the assessment set out therein applied to both product and technological innovation, and that it was convinced that the market participants had wished to express that view. That explanation must however be dismissed because it does not follow from the wording of the recital at issue and because no valid evidence has been put forward to support it. Furthermore and in any event, there is nothing to show that the Commission should have evaluated the extent of the reduction in innovation in order to substantiate its conclusions to the requisite legal standard. Lastly, as regards the competition between the parties to the concentration, recitals 813, 889 and 925 of that decision state, inter alia, that their competition for the introduction of new products in the areas of European interest rate derivatives, European single stock derivatives and index derivatives would be eliminated, in particular due to the fact that those parties are, in each of those areas, each other’s closest competitor, and that that competition would be eliminated post-merger.

169    As regards the press release, dated 11 June 2007, of the United States Department of Justice on the close of the investigation of CME’s acquisition of the Chicago Board of Trade (CBOT), it is indeed apparent therefrom, as the applicant notes, that, in that procedure, it was held that the two principal impetuses for innovation had been, and would continue to be, the prospect of winning business from the OTC market and the potential to offer products that the community active on the OTC market can use to hedge the risk associated with that activity. However, there is no evidence to show that that finding, which is limited to the facts relating to that specific procedure, is applicable in the circumstances of the merger at issue in the present case.

170    It follows that the applicant’s first claim is clearly unfounded as regards new product innovation.

171    In the second place, the applicant claims that the Commission’s conclusion that the concentration would eliminate any technological competition and would give rise to a reduction in the innovation available for customers is manifestly incorrect and unsubstantiated.

172    In that regard, it must be noted that the Commission examined, in recitals 604 to 640 of the contested decision, the competition between the parties to the concentration in technology, process and market design. The competition in technology is specifically addressed in recitals 605 to 619 of that decision.

173    In the present case, first, it should be observed that, as is apparent from the contested decision, and in particular from recitals 634, 635 and 639 thereof, the Commission did not take the view, contrary to what is suggested by the applicant, that the merger would eliminate any technological competition. The Commission noted in recital 634 of that decision that it had not argued that there were no exogenous incentives for the parties to the concentration to invest in technology and market design, nor that such incentive would disappear as a result of the notified transaction. In recital 635 of that decision, the Commission stated that it had concluded in the statement of objections that, post-merger, the intensive and unique competition between those parties in technology, process and market design would be lost, since that competition was based on the need to forestall unique competitive threats to those parties’ respective franchises from the other party. In recital 640 of the same decision, the Commission concluded that the concentration would lessen the incentive which the merged entity would have to innovate in technology and would reduce the innovation available to customers in the markets.

174    Secondly, as for the argument that the Commission failed to take into account the continuing competitive pressure on the merged entity with respect to those customers that pursue high frequency trading strategies, it should be noted that the Commission did not deny that, post-merger, the parties to the concentration would still have to face up to a form of competition, since it held that the innovation would be reduced and not eliminated. In any event, as is apparent from recital 611 of the contested decision, latency, namely the period for compliance with a transaction, is only one of the parameters on which the exchanges compete with respect to technology, in the same way as connectivity type, reliability and support services.

175    Thirdly, as regards the argument that it is contradictory to consider technology on the one hand as not being a barrier to entry of competitors and, on the other hand, to consider it as a relevant aspect of competition between the parties, it must be held that that argument is irrelevant. It must first of all be observed that, whilst the Commission took the view that access to a trading software licence was not an actual barrier to entry into market for trading and clearing of European interest rate derivatives, it did not however generally and unconditionally hold that access to technology was not a barrier to entry. In any event, it should be observed that the examination carried out by the Commission in recitals 604 to 640 of the contested decision relates to innovation in technology, process and market design. The fact that there is competition between exchanges in that regard, in particular to attract and maintain liquidity, in no way contradicts the finding that access to existing technology may, depending on the circumstances, not constitute a barrier to entry. The issue of the competition which may exist in innovation differs from the issue of access to existing technology.

176    Fourthly, the Court must reject the argument that the Commission failed to analyse whether the concentration would have resulted in less technology competition, since it follows from section 11.2.1.3.4.2 of the contested decision that the Commission examined that competition and concluded, in recital 640 of that decision, that the concentration would lessen the incentive which the merged entity would have to innovate, inter alia, in technology. It should also be noted that the applicant has failed to validly call into question the evidence on which the Commission relied in its examination of the technological competition. In particular, the applicant does not call into question the finding, set out in recital 615 of that decision, that a clear majority of customers expect the concentration to result in at least a degree of reduction in innovation in both products and technology, and that a minority of customers expect the same or more innovation. It is also apparent from recital 619 of the same decision that a manager of Liffe took the view that ‘[Liffe] and [its] clients [believed] that the existence of two major European derivatives exchanges [would maintain] an incentive for each to innovate in product development, technology and service quality’ and that ‘[that incentive] would be lost through a merger that would create a monopoly controlling more than 90 per cent of the European on-exchange derivatives market’, which the applicant did not dispute.

177    Fifthly, the fact, referred to by the applicant, that all major derivatives exchanges around the world are operators and developers of trading technology is not such as to call into question the conclusion that the concentration would lessen the incentive which the merged entity would have to innovate in technology, process and market design in order to respond to those same competitive threats, and would result overall in less innovation being available to customers in those markets, the applicant having failed, moreover, to explain to what extent that fact could call into question that conclusion. The fact that different trading systems would be retained post-merger is not inconsistent with the conclusions of the Commission, which did not consider that the relevant competition would be eliminated.

178    It follows that the applicant’s second claim must be rejected and that it is wrong to claim that the Commission did not analyse the level of reduction in the area of innovation.

179    It follows from the foregoing that the third complaint must be rejected.

–       The fourth complaint

180    The applicant argues that the Commission’s analysis of the competition by other platforms is not based on cogent and consistent evidence.

181    In that regard, it should be observed that, in recitals 749 to 798 of the contested decision, the Commission examined the question whether other players could maintain sufficient competitive constraint on the merged entity post-merger, and concluded, in recital 799 of that decision, that none of them would be in a position to discipline that entity post-merger.

182    In the present case, first, the Court rejects the applicant’s argument that the Commission referred, in paragraph 703 of the contested decision, to the constraint exercised by Eurex on CME in the United States, but denied that CME was able to exercise the same constraint in Europe, even though the prerequisites are similar. The applicant merely asserts that the Commission did not accept that CME was able to exercise a constraint identical to the constraint exercised by Eurex on CME in the United States, and has not produced any evidence to validly call into question the Commission’s conclusion, set out in recital 779 of that decision, that it is unlikely that CME would be in a position to exert a competitive pressure to the merged entity post-transaction. In addition, the applicant makes pure assertions and does not put forward any evidence in the application to show that the prerequisites, in particular the margin pools, were similar in their composition. In that regard, it must be noted that the Commission found, in recital 758 of that decision, that the offsets between the respective products of the parties to the concentration were significantly higher than those between those products and the products of CME, a finding which the applicant has not validly called into question.

183    Secondly, the fact, referred to by the applicant, that the Commission left open the issue of the geographical delimination of the market for European interest rate futures and options does not conflict with the finding that the launch by CME of derivatives on European underlyings did not constitute a competitive constraint. Contrary to what the applicant suggests, the existence of that constraint was not ruled out by the Commission on the ground that the offer would target customers in the United States and should not have an effect because of their limited volume, but, in particular, on the ground that CME did not possess a similarly large and highly correlated margin pool, as is apparent from recitals 752 to 779 of the contested decision.

184    Thirdly, the Court must reject the applicant’s argument that the Commission made an error with respect to CME’s membership base. Within the context of the examination, set out in recitals 752 to 778 of the contested decision, of whether CME could exercise a competitive restraint on the merged entity in the area of European interest rate futures and options, the fact that CME’s clearing-house has a very reduced base of members (only 15 as of August 2011) is only one of many factors taken into account by the Commission in concluding, in recital 779 of that decision, that it was unlikely that CME would be in a position to exert a credible competitive pressure on the merged entity. Thus, even if the applicant’s argument were well founded, that conclusion would not be affected.

185    Fourthly, as regards the applicant’s argument that the Commission ignored certain internal documents of the parties to the concentration, which were produced to prove that CME was a direct competitor, and used them only in support of its claim that CME did not exercise a competitive constraint in the derivatives sector, it should be observed that the applicant does not mention, in the application, the documents which the Commission allegedly failed to take into account, and merely makes a reference to its response to the statement of objections. In any event, it is apparent from recitals 773 to 778 of the contested decision, which deal with the question whether CME could exercise sufficient competitive restraint on the merged entity in the area of European interest rate futures and options, that the Commission took into account internal documents of the parties to the concentration. That argument must therefore be rejected. The same is true of the applicant’s argument that the Commission neither asked for, nor analysed, certain CME, Nasdaq OMX or London Stock Exchange internal documents describing their relationships with those parties. The applicant gives no indication of the documents at issue and simply makes assertions, stating that, if the Commission had done so, it would have secured evidence of the competitive constraints exercised by those competitors. Moreover, the Commission relied on the responses of exchanges referred to by the applicant within the context of its analysis of the competition.

186    Fifthly, the Court rejects the applicant’s arguments concerning The Order Machine (TOM). In that regard, it should be noted that, in recitals 875 to 878 of the contested decision, the Commission examined the question whether TOM could exercise a competitive restraint on the merged entity in the area of single stock equity futures and options. The Commission concluded, in recital 879 of that decision, that not only was there legal uncertainty as to whether TOM would be able to operate a derivatives business, but that, moreover, [confidential] it had at that stage only a very limited distribution network (a handful of members). The Commission took the view that the likelihood of sustained entry was in doubt or unknown, that it was at best a localised threat for a limited number of single equity instruments, that its expansion possibilities were unknown and that the time necessary to implement such eventual expansion was uncertain, as was the scale at which it would occur.

187    In that regard, it must first of all be noted that the applicant has not produced any evidence to call into question the grounds for the Commission’s conclusion. Next, with respect to the claim that the fact that [confidential] is evidence that the mere threat of entry can [confidential], even if the entrant is unsuccessful, that claim is not sufficient to call into question the factors relied on by the Commission, in particular in recitals 875 to 878 of the contested decision, in finding that it is uncertain that TOM would exercise a competitive restraint. Lastly, as regards the applicant’s claim that the Commission qualified the constraint posed by TOM as localised, but failed to explain why other larger and more established platforms would be unable to exercise such constraints, it should be noted that, as is apparent from that decision, although the Commission did qualify the constraint at issue as localised, it was on the ground that [confidential]. The applicant does not call into question that finding.

188    It follows from the foregoing that the fourth complaint must be rejected, as, consequently, must the first part of the first plea.

 The second part, alleging that the Commission did not examine demand-related constraints sufficiently

189    In connection with this part of the plea, the applicant puts forward five complaints.

–       The first complaint

190    The applicant submits that the customers of the parties to the concentration impose a significant competitive constraint on them. Those parties control only the costs that they charge to their customers.

191    In that regard, it should be noted once again that, as is apparent from reading recitals 299, 501 and 502 of the contested decision together, the market investigation confirmed that traders in general take into account the total cost of trading, including implicit fees (namely the bid-ask spread, market impact and opportunity costs linked to the provision of securities) and explicit fees (namely membership fees and transaction fees for trading and clearing) when deciding where to trade; that was not disputed by the applicant in the application. It is stated, in recital 501 of that decision, that the implicit cost of trading is typically several times greater than the other costs traders incur, a point which is also not disputed.

192    Lastly, it should be noted that, in recital 1126 of the contested decision, the Commission concluded that the proposed concentration, if implemented, would eliminate actual and potential competition in a number of areas. In recital 1127 of that decision, the Commission recalled that barriers to entry into those markets were high and countervailing buyer power was weak. As has already been observed, the Commission concluded, in recital 1128 of that decision, that, given the elimination of the only credible constraint that exists in those markets, the merged entity would most likely be able to impose higher trading and clearing fees to customers and engage in less product and technology innovation.

193    The applicant contends, in that regard, that the parties to the concentration control only the costs that they charge to their customers and that those costs are only a small part of the total trading costs. According to the applicant, a minor increase in the trading costs will have a negative impact on the total cost of trading for the end-users which are liquidity providers, which account for a significant share of trading volumes and are highly sensitive to changes in trading costs. The exchanges therefore have a limited scope to increase trading commissions.

194    In the present case, none of the arguments put forward by the applicant can call into question the Commission’s assessments referred to in paragraphs 191 and 192 above.

195    First, it must be observed that the applicant makes pure assertions. It has not produced any evidence to substantiate, to the requisite legal standard, its claim concerning the consequences of a minor increase in the explicit trading costs. The only document referred to in that context is a presentation, in the form of slides, given at the hearing before the Commission, which does not refer to any tangible evidence.

196    Secondly, it must be held that the argument that the parties to the concentration are not free to raise their prices vis-à-vis their customers must be rejected. The applicant refers, in that regard, only to a specific group of customers, namely those acting as market makers, with the result that, even if that argument were well founded, it could not call into question the Commission’s assessments as a whole. Similarly, the assertion that a nominally small increase of the trading fee per contract will consume the average net profit refers only to certain types of liquidity providing customers acting as market makers. In any event, those arguments are not firmly substantiated by tangible evidence, since the applicant merely refers, in the application, to the slides mentioned in paragraph 195 above.

197    Thirdly, the Court must also reject as irrelevant the argument that the parties to the concentration control only the costs that they charge as exchanges to their customers, namely the explicit trading fees. First of all, as is apparent from recital 511 of the contested decision, exchanges have in their direct control not only the cost of trading, but also the cost of clearing, both in terms of fees for clearing, as well as the cost of collateral, which the applicant does not dispute. In addition, it is apparent from recital 502 of that decision that exchanges compete on the explicit portion of costs to attract liquidity to their platform whilst implicit costs are mainly a function of the achieved bid-ask spread. That competition on the explicit costs necessarily has indirect consequences on the implicit costs, since, as the Commission essentially observes in the defence, the effort to attract liquidity impacts on the bid-ask spread. Lastly, it should be recalled that, as is apparent from recital 502 of that decision, customers base their decision on the total cost of trading, including both implicit and explicit costs.

198    Fourthly, the applicant is wrong to argue that the Commission’s assumptions are incorrect and unsubstantiated and that the Commission failed to take into account the competitive restraints exercised by the customers. The Commission examined, in recitals 1009 to 1021 of the contested decision, the buyer power of the customers of the parties to the concentration, taking the view that those customers had no countervailing buyer power and no possibilities of switching suppliers. Moreover, the Commission based its conclusion that the merged entity would most likely be able to impose higher trading and clearing fees to customers on its assessment that the only credible constraint existing in the markets at issue would be eliminated.

199    It follows that the first complaint must be rejected.

–       The second complaint

200    The applicant claims that the Commission’s conclusion that trading fees would increase post-merger fails to have regard to evidence proving the existence of constraints linked to demand. According to the applicant, the empirical evidence proving that the parties to the concentration do not constrain each other’s pricing has not been gathered and analysed, the Commission’s examination being limited to a review of anecdotal statements. The applicant observes in that respect that the Commission found that the merger would create verifiable, merger-specific efficiencies that would benefit customers, whilst considering that any price increase would more than outweigh the savings that would accrue, without considering what the size of the price increase was likely to be.

201    In that regard, in the first place, the Court finds that the applicant’s argument does not call into question the Commission’s conclusions concerning the increase in fees, the substance of which has been noted in paragraph 192 above. The applicant refers to empirical evidence proving that the parties to the concentration do not constrain each other’s pricing, which, it alleges, was not gathered and analysed by the Commission. However, the applicant does not state which specific evidence is at issue. Assuming that it is referring to the quantitative analyses mentioned in recital 247 of the contested decision, it has already been essentially observed in paragraph 136 above that there was no evidence to call into question the Commission’s conclusion that the quantitative analysis was not meaningful. In addition, the applicant has not adduced any evidence to call into question the statement, in recital 248 of that decision, that the price data required to conduct any meaningful empirical analysis were not available.

202    In the second place, whilst the applicant asserts that the Commission’s review is limited to a selective review of anecdotal statements and that the cited evidence does not support the conclusion that the parties to the concentration compete with each other within any of the derivatives markets in which they are active, the applicant has not, however, produced any evidence to support its assertions and the examination of the first part of this plea has not called into question the finding that those parties exercised a competitive constraint on each other.

203    In the third place, as regards the claim that the evidence represents proof that the pricing of the parties to the concentration is constrained by their customers, the applicant does not even indicate the specific evidence to which it refers in that regard. In any event, it is apparent from the examination of the third complaint in this part of the plea that that claim is unfounded (see, in that regard, paragraphs 210 to 219 below).

204    In the fourth place, as regards the reference, in the reply, to the fact that the Commission failed to consider the adverse effect of price increases on volumes, the applicant does not provide any evidence in support of its claim that, even if customers could not migrate to an alternative product or exchange, that adverse effect would preclude any price increase. The applicant makes, in that regard, pure assertions. Moreover, that examination relates, in essence, to the examination of the countervailing buyer power, which was carried out by the Commission in recitals 1009 to 1020 of the contested decision, as recalled in recital 1127 of that decision.

205    Lastly, the Court also rejects the claim that the Commission found that the merger would create verifiable, merger-specific efficiencies that would benefit customers, whilst considering that any price increase would more than outweigh the savings that would accrue, without considering what the size of the price increase was likely to be. It should be noted that, as follows from the examination carried out in section 12 of the contested decision and the conclusion of which is set out in recitals 1335 to 1342 of that decision, the only savings which the Commission considered to be verifiable are collateral savings. The Commission considered that those collateral savings were of an order of magnitude of EUR [confidential] to [confidential] million, but that only part of that amount was merger-specific and that only part of the merger-specific amount was likely to be passed on to customers. Consequently, the Commission took the view, in recital 1338 of that decision, that the efficiencies that are verifiable, merger-specific and likely to benefit customers would most likely be limited.

206    The Commission then stated, in recital 1339 of the contested decision, that, for it to become unprofitable for the merged entity to increase its fees to an extent that the fee increase outweighs the verifiable collateral savings, trading demand would have to be extremely elastic. The Commission observed that, given that the proposed concentration would lead to the elimination of the closest actual and potential competitor, and the high barriers to entry and expansion in the markets in question, customers would have no alternative or possibility to switch to another platform. The Commission concluded that it would be likely that the merged entity would have the ability and the incentive to increase fees substantially.

207    It follows that the Commission found that the increase in fees which would be likely to occur would outweigh the efficiency gains, but without quantifying the size of that increase. However, the applicant has not produced any evidence from which it might be inferred that the reasoning followed by the Commission to reach that conclusion is manifestly erroneous.

208    In any event, it should be noted that, in recital 1340 of the contested decision, the Commission evaluated the verified annual cost savings as a percentage of the total annual revenues of the parties to the concentration from their derivatives business, but also by dividing the annual cost saving by the total number of contracts traded on those parties’ platforms per year. In doing so, the Commission stated that, according to the upper figure in the bracket, the saving would represent [confidential] per contract and, according to the lower figure, [confidential] per contract. The Commission inferred from this that a fee increase of a few euro cents per contract would already be sufficient to recoup the collateral savings. The applicant did not produce any evidence to refute that reasoning, which does not, moreover, seem to be manifestly erroneous, having regard to the material in the file. In that context, it is appropriate, in the light of the foregoing considerations, to reject the argument that the contested decision acknowledged the existence of substantial efficiencies and failed to balance them against the competitive harm in a reasoned manner.

209    It follows from the foregoing that the second complaint must be rejected.

–       The third complaint

210    The applicant claims that the Commission did not examine the extensive evidence of the competitive restraints that result from the decisive role that the customers play. In addition, the Commission incorrectly rejected the evidence demonstrating the buying power of the customers of the parties to the concentration, since none of the five reasons put forward by the Commission in that regard is correct.

211    In that regard, it should be noted that, in recitals 1009 to 1020 of the contested decision, the Commission investigated whether the customers of the parties to the concentration had a countervailing buyer power, by examining, inter alia, those parties’ claims. The Commission concluded, in recital 1021 of that decision, that the market power of the merged entity would not be constrained to any significant extent by buyer power on the part of its customers.

212    In the present case, in the first place, the Court must reject the applicant’s claim that the Commission did not examine the extensive evidence adduced by the parties to the concentration as to the decisive role that their customers play for the competition in derivatives trading. It is apparent from recitals 1009 to 1020 of the contested decision that the Commission took those parties’ argument into account. However, the Commission considered, in recital 1015 of that decision, that the market investigation had not substantiated any of those parties’ claims relating to countervailing buyer power. In particular, as regards the argument that the Commission took the view that no relevant examples of customer driven switches of liquidity to other trading platforms or customer sponsored market entries had been provided, although it had noted several entry attempts resulting in fee reductions, it must be observed that, in recitals 510 and 703 of that decision, the Commission did indeed refer to examples of attempts to enter the market which had effects on prices, namely Eurex US and Turquoise, but those examples cannot illustrate a buyer power of the customers of those parties, given that they relate to a possible competitive constraint exercised by competitors which has not been validly established in the present case. For the same reason, the Court must reject the argument that, to the extent that the Commission argued that failed attempts to enter the market indicated that the constraint was ineffective, it cannot cite examples of failed entry by the parties at issue as evidence that they constrain each other’s prices. As regards the Project Rainbow example, it is sufficient to note that the Commission examined it, in particular in recitals 1018 and 1019 of the decision, since the applicant has not produced any evidence to specifically refute the Commission’s analysis set out therein. Lastly, as for the argument that the Commission failed to analyse the fact that customers which are the leading players in the OTC markets move liquidity to exchange markets, it is sufficient to note that the Commission examined the substitutability of OTC derivatives and ETDs and that, as is apparent from the examination of the first part of this plea, the Commission did not err in considering that substitution between ETDs and OTC derivatives was at best limited.

213    In the second place, the Court must reject the applicant’s arguments contesting the five grounds on which the Commission denied the existence of buyer power of the customers to the concentration.

214    First, as regards the report, the relevance of which was disputed by the Commission in recital 1012 of the contested decision, the applicant does not dispute that that report concerns only OTC derivatives and not ETDs. The fact that OTC derivatives represent 90% of derivative trading is irrelevant in that regard, since, in the examination of the first part of this plea, the Commission’s conclusion that the substitutability of those two categories of products is limited to ETD lookalikes was not considered to be erroneous. The fact that that report had been cited as evidence that the vast majority of derivatives were held by 14 dealers does not alter the fact that that report is irrelevant in the context of ETDs.

215    Secondly, as regards the assertion, in recital 1013 of the contested decision, that, once exchanges have succeeded in gaining liquidity, no dealer would consider it beneficial to move all of its business OTC, where no such benefits could accrue, the applicant merely submits that that assertion is contradicted by several responses to the market investigation, in which dealers stated that they would switch to OTC derivatives to avoid a 5% to 10% price increase. However, the applicant does not specify the responses in question and merely refers in that regard to another paragraph of the application, which does not, however, concern those responses. In addition, the applicant does not submit any evidence to call into question the remarks of [confidential] of NYSE Euronext made at the hearing, which were referred to in that recital by the Commission in support of its assertion. In any event, as has already been stated in paragraph 84 above, the Commission’s argument that the group of customers that trade only ETDs is unlikely to switch to OTC derivatives in response to a 5% to 10% increase in the overall cost of trading for ETDs is not wrong. Moreover, there is nothing in the file which permits the inference that the assertion at issue is manifestly erroneous.

216    Thirdly, as regards the assertion, in recital 1014 of the contested decision, that the customers of the parties to the concentration are not simultaneously their competitors, nor the owners of their competitors, the applicant’s argument criticising the Commission for not having considered OTC derivatives in the market definition cannot succeed, since the examination of the first part of this plea has not revealed any error of assessment in the definition of the relevant market. In particular, it should again be noted that the applicant’s argument that the market investigation concluded that customers considered OTC derivatives to be substitutes to which they would switch in order to avoid a 5% to 10% increase in ETDs has already been dismissed (see paragraph 84 above).

217    Fourthly, the Court must reject the applicant’s arguments relating to the assertion, in recital 1015 of the contested decision, that it was not buyer power but rather [confidential], who therefore made their observations known anonymously through AFME ‘out of concern to avoid damaging the commercial relationships of individual members which are dependent on the parties for their day to day business’. That assertion is not called into question by the fact, alluded to by the applicant, that AFME made clear at the hearing that [confidential]. The existence [confidential] does not refute the existence of the concern of certain important customers that their commercial relationships with the parties to the concentration might be damaged. As for the applicant’s claim that that argument should have been referred to in the statement of objections, it is sufficient to note that that argument was referred to at the meeting of 23 November 2011, therefore subsequent to the statement of objections and, in any event, that it was open to those parties to make their views known in that regard, at that meeting or subsequent to that meeting.

218    Fifthly, none of the applicant’s arguments calls into question the assertions, in recital 1016 of the contested decision, that the parties to the concentration do not seem to claim that individually a particular dealer could take its business elsewhere and thereby exercise countervailing power, but rather that this would be done collectively, and that they have not offered any examples of prior occasions of such a mass shift following a coordinated action. First of all, those assertions do not contradict the assertion, in recital 518 of that decision, that the mere threat that liquidity might shift, in whole or in part, to another platform is a credible constraint on the competitive behaviour of exchanges. Whereas, before the concentration, a threat of shifting may constitute a competitive threat, the existence of a countervailing power post-merger still has to be demonstrated. In that regard, it is important to note that, as is apparent from recital 1017 of that decision, to the extent that customers might be able to coordinate in order to switch liquidity to a competing existing venue, the most likely venue is the other party to the concentration. That option would disappear as a result of the concentration. As for the three responses to the market investigation cited by the applicant, two of them illustrate competition between those parties. As for the third, it is apparent therefrom that the entity questioned did not observe many examples of liquidity transfer between those parties or with regard to other platforms and cited only the example of interest rate derivatives where volumes for Eurodollar had moved to ELX, following a significant rebate scheme offered by the exchange. Those interest rate derivatives are, in any event, not affected by the contested decision, which relates only to European interest rate derivatives and not to American interest rate derivatives. The fact that the same decision mentions, in recital 509, the fact that Liffe and ELX tried to challenge for the Eurodollar is irrelevant in that regard.

219    It follows that the third complaint must be rejected.

–       The fourth complaint

220    The applicant submits that, to the extent that they act as agents, the customers of the parties to the concentration have numerous ways to steer end-users’ trading towards or away from an exchange. The Commission has therefore not taken account of the power of those customers to set the overall cost of trading charged to those users for a wide range of products, since the commissions charged to the customers of those parties are only a small part of that cost.

221    In that regard, in the first place, it should be noted that it is apparent from recital 337 of the contested decision that the market investigation indicated that trading of highly liquid derivatives was significantly cheaper on-exchange than trading of contracts offering similar economic exposure OTC. It is also apparent from that recital that, in a document drawn up by the applicant, from ‘customers’’ point of view, trading on exchange is approximately eight times less expensive than trading OTC and that transaction costs for ETDs are particularly low. In that regard, it must be observed, however, that that difference concerns the cost for the end-user and not the cost for exchange customers (see paragraph 116 above). However, questioned in that regard by the Court, the applicant has not adduced evidence to show that no substantial cost difference between trading on exchange and trading OTC exists from the point of view of customers of the parties to the concentration; moreover, no document in the file demonstrates that this is the case.

222    In the second place, it must be noted that, as follows from recital 367 of the contested decision, the Commission concluded, as it was fully entitled to, as is apparent from the examination of the first part of this plea, that even for customers that traded both ETDs and OTC derivatives, the ability to directly substitute between ETDs and OTC derivatives was at best limited to ETD lookalikes.

223    Lastly, it should be noted that, in its assessment of the argument of the parties to the concentration that their main customers play the role of agents for their customers that are not direct exchange members and exercise considerable power on the exchanges, the Commission stated, in recital 375 of the contested decision, that the market investigation had provided ample evidence that ‘the decision of whether or not to trade OTC, in those instances where both routes [were] possible, [was] rarely left by [brokers’] clients to brokers […] [, since] virtually all respondents indicated that they specify their choice of execution mechanism (on exchange or OTC) when they trade derivatives contracts through their brokers’. The Commission relied, in that regard, on market participants’ statements, the truth or the probative nature of which has not been validly challenged by the applicant.

224    In the light of those considerations, the Court must reject the applicant’s argument that the customers of the parties to the concentration that are able to offer and to set the overall cost of trading for a trade via an exchange or OTC are therefore in a unique position to set the parameters for the end-users for making a decision on where and how to trade. Not only is it apparent from the above (see, in particular, paragraph 221 above) that the cost of trading OTC is, from the end-users’ point of view, far higher than the cost of trading on exchange, but, moreover, end-users rarely leave the decision of whether or not to trade OTC to their brokers. Thus, the applicant is wrong to claim that, by deciding where and how to trade, the customers of the parties to the concentration exercise a decisive constraint on them.

225    In addition, and in any event, the Court finds that, in making that complaint, the applicant makes a pure assertion and fails to adduce any evidence to validly substantiate it. In particular, the applicant does not put forward, in the application, any evidence capable of demonstrating to the requisite legal standard that the customers of the parties to the concentration have ways to steer the end-users’ trading towards or away from an exchange.

226    It follows that the fourth complaint must be rejected.

–       The fifth complaint

227    The applicant asserts that the Commission has not taken account of the competitive threat exerted by broker-dealers, who are capable of setting up competing platforms and capturing end-users’ trading and liquidity in order to steer it towards those platforms.

228    In that regard, it must be noted that, in the contested decision, the Commission investigated whether the possible competitive restraint exercised by OTC trading platforms, broker-dealers and inter-dealer brokers meant that OTC derivatives exercised a competitive restraint on ETDs. In particular, in recitals 374 to 384 of that decision, the Commission examined the arguments put forward by the parties to the concentration concerning the broker-dealers and essentially held that inter-dealer brokers and broker-dealers did not act as gatekeepers channelling business either on exchanges or OTC. As follows from recital 390 of that decision, the Commission concluded that OTC platforms, interdealer brokers, broker-dealers and OTC price discovery platforms operated in a different space than regulated exchanges and that they generally focused on OTC trades that could not be executed on exchanges’ order books as they were either of large size or not standardised enough to be eligible for exchange trading. Moreover, the Commission maintained that those market participants did not perform a gatekeeper role. As a result, the Commission held that their existence could not evidence significant competitive interaction between OTC derivatives and ETDs.

229    It must therefore be held, in the first place, that the applicant is wrong to submit that the Commission did not take account of the competitive threat exerted by broker-dealers, since, as is apparent from paragraph 228 above, the Commission did examine that aspect.

230    In the second place, as regards the claim that broker-dealers are capable of establishing competing platforms and capturing end-users’ trading and liquidity in order to steer it towards those platforms, it must be observed that, as the Commission states in the defence without being challenged by the applicant, the platforms that could be set up would be OTC trading platforms trading OTC derivatives and not ETDs. Since, as is apparent from the examination of the first part of this plea as a whole, the applicant has put forward no evidence capable of calling into question the Commission’s conclusion that the substitutability of OTC derivatives and ETDs is at best limited, the argument that broker-dealers are capable of exercising a competitive restraint must be rejected.

231    In any event, the applicant provides no evidence, in the application, to substantiate its claim and to call into question the considerations put forward by the Commission. In particular, the applicant has not produced any evidence to call into question the assessment, set out in recital 375 of the contested decision, that the market investigation had provided ample evidence that the decision of whether or not to trade OTC, in those instances where both routes were possible, was rarely left by clients to brokers, or the assessment that broker-dealers and inter-dealer brokers focused on the OTC market. The applicant merely claims, in the application, that they are in a unique position as they can compete directly with the parties to the concentration by setting up competing platforms to which they can then steer the end-users’ trades, without providing the evidence to show it. In that regard, the applicant’s claim that the broker-dealers determine the marginal cost of substitution for their clients and offer more attractive spreads does not call into question the Commission’s conclusions based on the results of the market investigation. As for the press article of 13 November 2012, referred to by the applicant in the reply in order to confirm those parties’ customers’ ability to set up competing platforms, it is sufficient to note that it is subsequent to the contested decision, and thus cannot be taken into account for the purposes of assessing the legality of that decision.

232    In the last place, the applicant takes the view that the ELX, BATS and Turquoise platforms illustrate that competitive threat. However, the applicant has not produced any evidence to call into question the considerations set out in the contested decision, in particular in recitals 789 to 794, 869 to 879 and 985 to 1004 thereof, from which it is apparent, in essence, that it is unlikely that such platforms, including with the support of customers of the parties to the concentration, constitute a competitive restraint, in particular because of barriers existing to entry, and which are based on the results of the market investigation. The applicant merely states that the Commission perfectly knows that the owners of those platforms are those parties’ most important customers and refers to the slides presented at the hearing.

233    The fifth complaint must therefore be rejected, as, consequently must the second part in its entirety.

234    It follows from all of the foregoing that the first plea must be rejected.

 The second plea in law, alleging errors of law and of assessment regarding the efficiency gains

235    This plea essentially has four parts — the first concerns the communication of evidence regarding efficiency gains, the second concerns collateral savings, the third concerns effects on liquidity and the fourth concerns IT and infrastructure cost savings.

236    Before examining those parts, it should be noted that, according to recital 29 of Regulation No 139/2004:

‘In order to determine the impact of a concentration on competition in the common market, it is appropriate to take account of any substantiated and likely efficiencies put forward by the undertakings concerned. It is possible that the efficiencies brought about by the concentration counteract the effects on competition, and in particular the potential harm to consumers, that it might otherwise have and that, as a consequence, the concentration would not significantly impede effective competition, in the common market or in a substantial part of it, in particular as a result of the creation or strengthening of a dominant position. The Commission should publish guidance on the conditions under which it may take efficiencies into account in the assessment of a concentration.’

237    The guidance of the Commission referred to in recital 29 of Regulation No 139/2004 is set out in points 76 to 88 of the 2004 Guidelines.

238    Point 78 of the 2004 Guidelines states that, for the Commission to take account of efficiency claims in its assessment of the merger and be in a position to reach the conclusion that, as a consequence of efficiencies, there are no grounds for declaring the merger to be incompatible with the common market, the efficiencies have to benefit consumers, be merger-specific and be verifiable. These conditions are cumulative.

239    Lastly, it should be noted that, according to the final sentence of point 84 of the 2004 Guidelines, it is highly unlikely that a merger leading to a market position approaching that of a monopoly, or leading to a similar level of market power, can be declared compatible with the common market on the ground that efficiency gains would be sufficient to counteract its potential anti-competitive effects.

 The first part, concerning the communication of evidence regarding efficiency gains

240    The applicant disputes the Commission’s claim that the arguments regarding efficiency gains have not been submitted appropriately. According to the applicant, since that claim was not raised by the Commission during the proceedings, the rights of defence of the parties to the concentration have been infringed.

241    In that regard, it should be noted, first, that, in recital 1152 of the contested decision, the Commission stated that the first detailed submission on efficiencies had been provided only 21 days after the initiation of proceedings, with subsequent supplemental submissions even later in the proceedings, with the last submission 90 working days after the initiation of proceedings — thus very late in the procedure. The Commission held that, given the lateness of the submissions together with the significant magnitude of the data provided, the highly complex nature of the submissions made, and its limited resources to review the claims made within the time constraints set out in Article 10 of Regulation No 139/2004, the efficiency claims had not been appropriately submitted.

242    It should be noted, secondly, that, as is apparent from the contested decision, and in particular from recitals 1153 and 1160 thereof, the Commission nevertheless examined the claims of the parties to the concentration relating to efficiency gains.

243    It must therefore be held that this part of the plea must be rejected. No conclusion capable of adversely affecting the applicant was drawn by the Commission from the finding in recital 1152 of the contested decision, since the Commission examined the claims of the parties to the concentration, although it held that they had not been submitted correctly.

244    The first part must therefore be rejected.

 The second part, concerning collateral savings

245    In the context of this part of the plea, the applicant puts forward, essentially, five complaints.

–       The first complaint

246    The applicant asserts that the Commission infringed the parties to the concentration’s rights of defence in so far as it disregarded the analysis in the statement of objections without giving those parties the opportunity to submit their observations on its consideration of the collateral savings. Moreover, the Commission did not communicate its revised calculations of the estimated savings for their customers beforehand, nor did it give them the opportunity to express their views in that regard, thus infringing their rights of defence.

247    In that regard, it should be recalled that observance of the rights of the defence in the conduct of administrative procedures relating to competition policy constitutes a general principle of EU law whose observance is ensured by the EU judicature (see Case C‑534/07 P Prym and Prym Consumer v Commission [2009] ECR I‑7415, paragraph 26 and the case-law cited).

248    For procedures for the control of concentrations governed by Regulation No 139/2004, that principle is laid down in the second sentence of Article 18(3) and, in more detail, in Article 13(2) of Commission Regulation (EC) No 802/2004 of 7 April 2004 implementing Regulation No 139/2004 (OJ 2004 L 133, p. 1). The latter in substance requires, among other things, that written notice be given to the parties to the concentration of the Commission’s objections, with an indication to those parties of the period within which they may inform the Commission of their views in writing (Case C‑413/06 P Bertelsmann and Sony Corporation of America v Impala [2008] ECR I‑4951, paragraph 62).

249    The statement of objections is a document which is essential for the application of the principle of respect for the rights of the defence (see, to that effect, Case C‑440/07 P Commission v Schneider Electric [2009] ECR I‑6413, paragraph 163).

250    The statement of objections is a procedural and preparatory document which, in order to ensure that the rights of the defence may be exercised effectively, delimits the scope of the administrative procedure initiated by the Commission, thereby preventing the latter from relying on other objections in its decision terminating the procedure in question. It is therefore inherent in the nature of the statement of objections that it is provisional and subject to amendments to be made by the Commission in its further assessment on the basis of the observations submitted to it by the parties to the concentration and subsequent findings of fact. The Commission must take into account the factors emerging from the whole of the administrative procedure, in order either to abandon such objections as have been shown to be unfounded or to amend and supplement its arguments, both in fact and in law, in support of the objections which it maintains. Thus, the statement of objections does not prevent the Commission from altering its standpoint in favour of the undertakings concerned (see, to that effect, Bertelsmann and Sony Corporation of America v Impala, paragraph 248 above, paragraph 63).

251    It follows that the Commission is not obliged to maintain the factual or legal assessments set forth in that document. On the contrary, it must give as reasons for its ultimate decision its final assessments based on the situation existing at the time the formal proceedings are closed and is not obliged to explain any differences with respect to its provisional assessments set out in the statement of objections (Bertelsmann and Sony Corporation of America v Impala, paragraph 248 above, paragraphs 64 and 65).

252    The fact remains that Article 18(3) of Regulation No 139/2004 implies that, when the Commission finds during the in-depth investigation, following the statement of objections, that a competition problem which may give rise to a declaration of incompatibility has not been mentioned, or has been inadequately formulated, in the statement of objections, it must either abandon the objection concerned at the stage of its final decision or put the undertakings concerned in a position to submit, before the final decision, all observations on the substantive issues and proposals for relevant corrective measures (Commission v Schneider Electric, paragraph 249 above, paragraph 165).

253    In the present case, it must be noted that, when notifying the proposed concentration, the parties to the concentration considered that the collateral savings would amount to EUR 3.1 billion.

254    In the statement of objections, the Commission held, in paragraph 573, that that amount did not represent actual efficiencies for the customers of the parties to the concentration. As is apparent from paragraph 575 of that statement, the Commission held that it was the opportunity cost of holding cash or securities posted as collateral which was the relevant measure of actual cost savings from lower collateral requirements. In paragraph 583 of that statement, the Commission observed that a 5% opportunity cost was conservative and a strict upper limit for the actual benefit derived by customers of those parties from having to pledge less cash and security collateral. Therefore, assuming that the EUR 3.1 billion nominal collateral savings claimed by those parties would be taken as the basis, the Commission held that an opportunity cost of 5% would lead to a cost saving of EUR 155 million.

255    In their response to the statement of objections, the parties to the concentration acknowledged that the opportunity cost of holding cash or collateral, rather than collateral savings as such, determined actual cost savings for their customers.

256    In the contested decision, the Commission held, as is apparent from recital 1196 thereof, that the ultimate efficiency may lie in the range between EUR [confidential] million and EUR [confidential] million if the EUR 3.1 billion claimed nominal collateral savings range were taken as a basis for the calculation of the opportunity cost.

257    In the present case, in the application, the applicant criticises the fact that the Commission did not provide it with the revised calculations, from which it is allegedly apparent that the collateral saving is included in that range and does not therefore amount to EUR 155 million as stated in the statement of objections.

258    In that regard, it is sufficient to recall that the Commission is not obliged to maintain the factual or legal assessments set forth in the statement of objections. On the contrary, it must give as reasons for its ultimate decision its final assessments based on the situation existing at the time the formal proceedings are closed and is not obliged to explain any differences with respect to its provisional assessments set out in the statement of objections (Bertelsmann and Sony Corporation of America v Impala, paragraph 248 above, paragraphs 64 and 65).

259    In any event, it must be noted that the difference between the amount of savings declared in the statement of objections and that finally declared in the contested decision is due to the fact that, in that decision, the Commission concluded that there was an opportunity cost of between [confidential] % and [confidential] % and not 5% as was initially stated. As is apparent from recitals 1194 to 1196 of that decision, the Commission subtracted from the 5% cost of capital the efficiencies derived from cash and securities collateral.

260    It must be stated that, in the statement of objections, the Commission had clearly stated that it ‘assumed’ that the opportunity cost of 5% was a ‘conservative’ assumption and constituted a ‘strict upper bound’. It is thus clear from that statement that the Commission did not give a definitive decision on that aspect.

261    It was therefore for the parties to the concentration to adduce, following the notification of the statement of objections, evidence to determine that rate with precision.

262    As is apparent from point 87 of the 2004 Guidelines, it is incumbent upon the parties to the concentration to provide in due time all the relevant information necessary to demonstrate that the claimed efficiencies are merger-specific and likely to be realised. Similarly, it is for those parties to show that the efficiencies are likely to counteract any adverse effects on competition that might otherwise result from the merger, and therefore benefit consumers.

263    In addition, it should be noted that the issue of the calculation of the efficiency gains was addressed at the meeting of 23 November 2011. It is apparent from the minutes of that meeting that the Commission representatives took the view that the opportunity cost was less than 5%. In that regard, they took into account, in essence, the income from the security lodged. Following that meeting, the applicant informed the Commission, on 1 December 2011, that the Commission seemed to rely on new evidence and arguments which had not been properly communicated to the applicant. On 8 December 2011, while sending to the parties to the concentration draft minutes of the meeting and the information distributed during that meeting, the Commission disputed the claim that its chief economist in the DG ‘Competition’ had submitted new evidence. The Commission nevertheless invited those parties to submit any comments.

264    Lastly, the Court must reject the applicant’s argument that the Commission did not explain why it used different approaches to estimate the collateral savings depending on whether the capital was made up of securities or cash. The reasons why the Commission assessed those savings differently are clear from paragraphs 573 and 574 of the statement of objections and recitals 1194 and 1195 of the contested decision.

265    It follows from all of the foregoing that the parties to the concentration were given an opportunity to state their views on the issue of the calculation of the collateral savings.

266    The complaint alleging infringement of the rights of the defence must therefore be rejected.

–       The second complaint

267    The applicant claims that the Commission’s conclusion that the parties to the concentration would be able to claw back at least part of the collateral savings is incompatible with the 2004 Guidelines and constitutes a manifest error.

268    In that regard, it should be recalled that, according to point 79 of the 2004 Guidelines:

‘The relevant benchmark in assessing efficiency claims is that consumers will not be worse off as a result of the merger. For that purpose, efficiencies should be substantial and timely, and should, in principle, benefit consumers in those relevant markets where it is otherwise likely that competition concerns would occur.’

269    Point 84 of the 2004 Guidelines reads as follows:

‘The incentive on the part of the merged entity to pass efficiency gains on to consumers is often related to the existence of competitive pressure from the remaining firms in the market and from potential entry. The greater the possible negative effects on competition, the more the Commission has to be sure that the claimed efficiencies are substantial, likely to be realised, and to be passed on, to a sufficient degree, to the consumer. It is highly unlikely that a merger leading to a market position approaching that of a monopoly, or leading to a similar level of market power, can be declared compatible with the common market on the ground that efficiency gains would be sufficient to counteract its potential anti-competitive effects.’

270    Finally, it must be observed that the Commission examined, in recitals 1234 to 1242 of the contested decision, whether the collateral savings would benefit consumers. The Commission essentially stated, in recital 1241 of that decision, that those savings related directly to markets where competitive issues had been found and that, given the fact that the parties to the concentration could price discriminate at least in part, it appeared likely that only a portion of those savings would remain with users. The Commission concluded, in recital 1242 of that decision, that it was possible that there would be some pass-on to customers, but that it was impossible to determine the size of that effect on the basis of the available data.

271    In the present case, it is necessary at the outset to dismiss the applicant’s claim that the Commission dismissed the evidence of verifiable customer benefits arising from collateral savings. The Commission expressly acknowledged, in that decision, the existence of verifiable gains from which customers could benefit. Thus, it is apparent from recital 1243 of that decision that the Commission considered it likely that some efficiencies would accrue to customers from increased cross-margining opportunities which would therefore translate into collateral savings. As is apparent from the same recital, the Commission nevertheless considered that some of those efficiencies, although not to a similar extent, could be achieved through less anti-competitive means and that it was possible that there would be some pass-on to customers although it was impossible to determine the size of that effect.

272    Next, the Court finds that none of the arguments put forward by the applicant can call into question the Commission’s assessment.

273    In the first place, the Court rejects the argument that the 2004 Guidelines require only that efficiencies must be shown to benefit customers and not that they can be clawed back. In footnote 1001 of the contested decision, the Commission stated, whilst referring to points 79, 80 and 84 of those guidelines, that, even if cost savings accrued on the side of the customers, if they were clawed back by the merged entity, they could not be taken into account as efficiency. First, no part of those guidelines states that the Commission could not take into account the fact that the efficiency gains stemming from the merger can, in whole or in part, be clawed back. Secondly, it can be inferred from those guidelines that those gains may be passed on only partially and therefore that they can be clawed back by the parties to the concentration, given that point 84 of the guidelines in question states that the Commission has to be sure that the efficiencies will be passed on ‘to a sufficient degree’ to the consumer, without making a distinction on the basis of the nature or the form of those gains. Moreover, contrary to what the applicant claims, it is not only when the efficiencies in question take the form of cost savings by the merged entity that those parties must demonstrate that they will be passed on to customers, rather than retained by the parties. That is not explicitly stated in the guidelines and, in any event, the Commission must check the overall effect of the concentration and, in particular, that some gains consisting of cost reductions for customers cannot be clawed back. It is necessary, on the same grounds, to reject the argument, put forward at the stage of the reply, that passing on is relevant only in cases where a merged entity is in possession of a thing that can be transferred to a customer.

274    In the second place, as regards the argument by which the applicant contests the fact that the Commission’s assessment of the effects of the merger on competition was separate from its assessment of efficiencies, three claims are, in essence, put forward.

275    As regards, first, the claim that there is no support in the 2004 Guidelines for the carrying out of an evaluation of efficiencies separately from the examination of the effects of the merger on competition, it must be observed, in order to reject that claim, that no provision of those guidelines precludes such a separate analysis. In addition, as is correctly stated in point 76 of those guidelines, it is possible that efficiencies brought about by a merger counteract the effects on competition and, in particular, the potential harm to consumers that that merger might otherwise have. In order to determine whether those effects are counteracted by those gains, it is possible, indeed necessary, for the Commission to evaluate them separately in two stages, and not necessarily and solely together. The fact that the evaluation of the efficiencies is one of the factors to take into account in the context of the overall examination of the merger, as the applicant states, cannot call that finding into question; nor does the applicant state the extent to which it does so. The argument that, by proceeding in that manner, the Commission requires the parties to the concentration to prove that they cannot claw back efficiencies by increasing prices, thereby shifting the burden of proving anti-competitive effects onto those parties must be rejected. The issue of the demonstration of anti-competitive effects, which is a matter for the Commission, differs from the issue of the demonstration of the fact that the efficiencies benefit consumers, are merger-specific and verifiable, which is a matter for those parties, as is apparent, in essence, from point 87 of those guidelines.

276    Secondly, the Court must reject the claim that the 2004 Guidelines show that the concept of pass-on means that, if a merger generates cost savings for the parties to it, the parties must be likely to pass them on to their customers, since the applicant does not state the extent to which that is incompatible with the Commission’s analysis. In particular, the fact that those parties’ cost savings can be passed on to customers does not prevent those parties from being able to claw back those gains. As for the fact that the concept of pass-on is relevant, as the Commission rightly states in recital 1237 of the contested decision, it does not affect the possibility of also taking into account the concept of ‘claw back’.

277    As regards, thirdly, the claim that the Commission cannot rely on a two-step analysis (namely a separate analysis of the effects of the merger on competition and an analysis of the efficiencies) as it did not conduct a price effect examination, it is sufficient to note, in order to reject that claim, that the applicant’s argument relating to the failure to examine the price increase will be rejected within the context of the fourth complaint of this part of the plea (see paragraphs 290 to 296 below).

278    In the third place, as for (i) the argument that the Commission wrongly based its ‘claw back’ theory on the assertion that the parties to the concentration could raise the amount of explicit fees on all complementary services and products which they offer customers and (ii) the argument that, for the purposes of the claw back analysis, it is necessary to consider whether it would be profitable to claw back collateral savings, the applicant does not explain to what extent they are able to call into question the Commission’s examination, the conclusion of which is not that all gains would be clawed back, but that only a part of them would be, to an extent which it is not possible to determine. Those arguments must therefore be rejected.

279    In the last place, it should be noted, in any event, that it is apparent from recitals 1340 and 1342 of the contested decision, and from footnote 1144 thereof, that, even assuming that the full amount of claimed gains was merger-specific and benefited customers, those gains would not be sufficient to counteract the significant impediment to effective competition resulting from the concentration. Thus, even assuming that the Commission’s examination concerning the claw back of part of the amount of those gains by the parties to the concentration were incorrect, that would not call into question the Commission’s assessment that those gains cannot counteract the effects of the concentration on competition.

280    It follows from the above that the second complaint must be rejected.

–       The third complaint

281    The applicant submits that the Commission’s rejection of part of the collateral savings on the ground that they could have been obtained by less anti-competitive means infringes the 2004 Guidelines, is not based on evidence and constitutes a manifest error of assessment. First, the assumption that cross-margining agreements were an established commercial practice in the sector concerned is incorrect and the Commission did not provide any evidence in that regard. Secondly, the Commission infringed the criterion regarding a merger-specific character, set out in those guidelines. Having considered that the parties to the concentration had demonstrated that the collateral savings could not have been obtained to a similar extent using less anti-competitive means, the Commission should have concluded that all those savings were caused by the concentration.

282    In that regard, it must be noted that, according to point 85 of the 2004 Guidelines:

‘Efficiencies are relevant to the competitive assessment when they are a direct consequence of the notified merger and cannot be achieved to a similar extent by less anticompetitive alternatives. In these circumstances, the efficiencies are deemed to be caused by the merger and thus, merger-specific. … It is for the merging parties to provide in due time all the relevant information necessary to demonstrate that there are no less anti-competitive, realistic and attainable alternatives of a non-concentrative nature … or of a concentrative nature … than the notified merger which preserve the claimed efficiencies. The Commission only considers alternatives that are reasonably practical in the business situation faced by the merging parties having regard to established business practices in the industry concerned.’

283    It should also be noted that, in order to determine whether the collateral savings could be obtained by less anti-competitive means, the Commission examined, in recitals 1228 to 1233 of the contested decision, the conceivable alternatives, namely interoperability, outsourcing and margin offset agreements. Concerning those latter agreements, the Commission recognised, in recital 1232 of that decision, that there were some examples where this had been working in practice and considered that such arrangements could be seen as established business practice in the industry concerned. However, the Commission observed that it was unlikely that such agreements could deliver a similar level of efficiencies as the notified transaction. The Commission concluded, in recital 1233 of that decision, that the parties to the concentration had demonstrated that the collateral benefits could not be achieved by less anti-competitive alternatives, but considered that, in view of the fact that there were certain agreements allowing for cross-margining, it was likely that at least part of those efficiencies could be achieved in a less anti-competitive way than by the concentration.

284    In the present case, in the first place, as for the dispute over the fact that margin offset agreements can be seen as established business practice in the industry concerned, it must be noted that, in that regard, the Commission observed ‘that there [were] some examples where this [had] been working in practice’ and referred, in footnotes 1049 and 1050 of the contested decision, to two examples of such agreements, namely the agreement concluded between Nasdaq OMX and LCH and the agreement concluded between CME and OCC. In addition, the parties to the concentration themselves acknowledged the existence of such agreements, as is apparent from recital 1217 of that decision, while stating that the number and scope of past arrangements were limited. Lastly, the fact that margin offset agreements do not constitute the clearing model prevailing in Europe or that those parties lack an incentive to enter into such agreements, as the applicant emphasises, does not mean that they cannot constitute a reasonably practical alternative given the parties’ business situation having regard to established practices in the industry concerned. In that regard, it should be stated that, given the examples of agreements provided by the Commission in that decision and the acknowledgement by the same parties of such agreements, the Commission did not make a manifest error in taking the view that it was possible to consider them to be established business practice, since the applicant has not put forward any evidence to show that the conclusion of such agreements was impossible. The applicant is also incorrect in claiming that the Commission did not rely on evidence.

285    Moreover, in the light of point 85 of the 2004 Guidelines, the Commission had to show that the agreements in question constituted a reasonably practical alternative in the business situation faced by the parties to the concentration having regard to established business practices in the industry concerned, and not necessarily that they constituted such a practice. The Court finds that, having already been implemented, as is apparent from footnote 1049 of the contested decision, there is nothing to prevent such agreements from representing such an alternative. In that regard, it should be noted that the applicant has not put forward any evidence, in the application or the reply, to show that such agreements did not constitute an alternative of that type and merely makes an assertion.

286    In addition, it must be noted that, as regards margin offset agreements, the Commission gave a particularly nuanced assessment, as is apparent from the wording of recitals 1232 and 1233 of the contested decision. The Commission stated that ‘such arrangements [could] be seen as established business practice in the industry concerned’, that ‘it [was] unlikely that such agreements could deliver a similar level of efficiencies as the notified transaction’ and that ‘it [was] likely that at least part of these efficiencies [could] be achieved in a less anti-competitive way than by the notified transaction’. The Commission therefore took care to limit the scope of its findings.

287    In the second place, as for the argument that the Commission infringed the criterion that efficiencies be specific to the concentration, set out in the 2004 Guidelines, it must be noted that, as point 85 of those guidelines justifiably provides, only efficiencies which cannot be achieved to a similar extent by less anti-competitive alternatives may be considered to be merger-specific. Having considered that part of the efficiencies could be achieved in a less anti-competitive way than by the merger, contrary to what the applicant claims, the Commission was correct in holding that only part of those gains was caused by the merger.

288    In any event, as has already been stated, it is apparent from recitals 1340 and 1342 of the contested decision, and from footnote 1144 thereof, that, even assuming that the full amount of claimed gains was merger-specific and benefited customers, those gains would not have been sufficient to counteract the significant impediment to effective competition resulting from the merger. Thus, even assuming that the Commission’s examination concerning the merger-specific nature of those gains were incorrect, that would not call into question the Commission’s assessment that those gains cannot counteract the effects of the merger on competition.

289    It follows that the third complaint must be rejected.

–       The fourth complaint

290    The applicant argues that the Commission did not examine whether the collateral savings would offset the price increases following the concentration. In that regard, the applicant observes that the Commission conceded that it was possible that the customers of the parties to the concentration benefit from part of the advantages, but failed to consider those advantages on the ground that their size could not be determined. That conclusion is, it claims, unsubstantiated and manifestly incorrect.

291    Before examining the three arguments which the applicant puts forward, in essence, in support of that complaint, it should be noted as a preliminary point that, as is apparent from recital 1338 of the contested decision, the Commission stated that the verifiable collateral savings were of an order of magnitude of EUR [confidential] and [confidential] million, but that only part of that amount was merger-specific and that only part of the merger-specific amount was likely to be passed on to customers. Accordingly, the Commission found that the efficiencies that are verifiable, merger-specific and likely to benefit customers would most likely be limited. In addition, it is apparent from recitals 1339 and 1340 of that decision that the Commission essentially examined whether, and to what extent, the claimed gains might offset the price increase subsequent to the merger. In recital 1340 of that decision, the Commission’s analysis started, moreover, from the premiss that the collateral savings were entirely merger-specific and would be passed on fully to customers, although that was not the case. In those circumstances, it cannot be held, as the applicant implies, that the Commission failed to take those gains into account and that it did not examine whether those gains would offset the price increase in question.

292    In the first place, concerning the argument by which, in essence, the applicant criticises the Commission’s assessment regarding the increase in trading fees, the applicant is wrong to claim that that institution failed to examine whether such an increase would be feasible. It is very clear from recital 1339 of the contested decision, which essentially repeats the reasoning set out in recitals 1126 to 1128 of that decision, that, given the relatively small size of fees compared to the total cost of trading, the Commission considered it likely that the parties to the concentration would have the ability and the incentive to increase fees (or reduce rebates) substantially. In that regard, it should be noted that the Commission stated that, for it to become unprofitable for the merged entity to increase its fees to an extent so that the fee increase outweighs the verifiable collateral savings, trading demand would have to be extremely elastic. The Commission observed that, given that the notified transaction would lead to the elimination of the closest actual and potential competitor, and the high barriers to entry and expansion in the markets in question, customers would have no alternative or possibility to switch to another platform. The applicant’s argument must therefore be rejected.

293    As for the evidence which the applicant criticises the Commission for having failed to adduce, it should be noted that, in recitals 246 to 253 of the contested decision, the Commission correctly considered, as has already been stated (see, in particular, paragraph 136 above), that a quantitative analysis was not possible, and it therefore relied on an overall empirical analysis. In particular, it is apparent from recital 248 of that decision that the price data required to conduct any meaningful empirical analysis were not available and that, even though list prices for ETDs were available, an analysis of the published ‘headline’ fees alone would not have taken into account the important role of rebate schemes. On any view, that decision contains evidence concerning the price elasticity of exchange customers. In particular, as is apparent from recital 289 et seq. of the same decision, the Commission identified certain price-inelastic customers. Recital 294 of the decision at issue states, as the second phase market investigation confirmed, that it was unlikely that the group of customers who trade only ETDs would switch to OTC derivatives in response to a 5% to 10% increase in the overall cost of trading for ETDs on exchange. As is apparent from the examination of the first plea, the Commission’s assessments in that regard are not vitiated by error. It is also necessary to reject the argument that the Commission identified only a single group of end-users with inelastic demand, since the group the inelastic demand components of which it identified, in recital 294 of the decision at issue, is made up of exchange customers and not end-users. Moreover, it should be noted that, although the Commission admits, in the rejoinder, that, before the concentration, demand for interest rate and equity derivatives could not be inelastic, the fact remains that, as is apparent from recital 1070 of the same decision, the Commission held that, if the concentration were to take place, the merged entity would essentially remain the only significant player in the markets concerned, with the result that exchange customers would not be able to turn to a competitor.

294    In the second place, as regards the contention that the Commission did not contest the parties to the concentration’s arguments that its claims of any claw-back were unfounded, it is sufficient to observe that those arguments are summarised in recital 1236 of the contested decision and that the Commission essentially gave a reply there, in particular to the argument that, in contrast with cost savings, collateral savings do not need to be ‘passed on’ by the combined entity. The Commission stated, in recital 1237 of that decision, that at the hearing it had explained that the question of pass-on was relevant regardless of whether the benefit accrued on the producer or consumer side, and had clarified that it was not conflating its competitive assessment with its efficiencies assessment. The Commission also stated, in that recital, that, as in merger analysis, the first step was to assess its unilateral effects considering the coming together of the two firms without any changes in costs or technology, and the second step was to assess efficiencies and how the price adjusted following cost savings either on the firm or the customer side. Lastly, the Commission stated, in the same recital, that that latter price effect was what is commonly called ‘pass-on’ and was separate from any price effect considered under unilateral effects in the first step. The applicant’s argument must therefore be rejected.

295    In the third place, as regards the argument to the effect that the Commission’s claim that it is impossible to determine the extent to which the parties to the concentration would be able to claw back the benefits is tantamount to an admission that it was unable to prove that the concentration would lead to anti-competitive effects, it is sufficient to note that, in any event, it is apparent from recitals 1340 and 1342 of the contested decision, and from footnote 1144 thereof, that, even assuming that the full amount of claimed gains is merger-specific and benefits customers, those gains would not be sufficient to counteract the significant impediment to effective competition resulting from that merger.

296    It follows from all of the foregoing that the fourth complaint must be rejected.

–       The fifth complaint

297    The applicant claims that the Commission’s rejection of collateral savings is incompatible with its analysis of the effects on competition.

298    In that regard, it should be borne in mind, as a preliminary point, that the applicant proceeds on the incorrect premiss that the Commission ‘rejected collateral savings’ and ‘dismissed the significance of collateral savings’. However, the Commission simply considered, as is apparent in particular from recital 1335 of the contested decision, that some collateral savings were verifiable, although not at the level claimed by the parties to the concentration, that those savings could however be attained through less anti-competitive means and that only some of those savings would probably be passed on to customers given the elimination of the significant competitive constraint those parties may currently exercise on each other with respect to collateral policy.

299    Next, it should be observed that the Commission’s assessments linked to the gravitational effect of the merged entity’s combined margin pool and of its effect on competition are in no way incompatible with its analysis of collateral savings. The fact that the Commission stated, in particular in recital 851 of the contested decision, that it was likely that the merged entity, due to the gravitational effect of the combined margin pool, would be able to grow further and possibly squeeze out competition entirely is not incompatible with the finding that collateral savings might exist and would be, in part, verifiable, notwithstanding the fact that, according to the Commission, they would be verifiable to a lesser extent than that claimed by the applicant. There is thus no link between the existence of collateral savings linked to cross-margining, which might arise because of the merger, and the fact that the combination of the parties to the concentration’s existing margin pools within the merged entity might, because of its gravitational effect, have an effect on competition. Lastly, apart from the fact that the Commission did not hold, contrary to what the applicant suggests, that the cross-margining savings (generating gravitational effects) were ‘insignificant’ or that the savings had to be dismissed because they were not ‘measurable’, the applicant does not state to what extent the claw-back by those parties of a fraction of those gains would ‘neutralise’ the gravitational pull induced by the increase in the merged entity’s margin pool.

300    It follows that the fifth complaint must be rejected, as, consequently, must the second part in its entirety.

 The third part, concerning effects on liquidity

301    In connection with this part, the applicant essentially puts forward eight complaints.

–       The first complaint

302    The applicant claims that the Commission’s conclusion that the effects of the proposed concentration on liquidity are not verifiable contradicts the Commission’s assertion that the combination of margin pools of the parties to the concentration would increase entry barriers.

303    In that regard, it should be observed that the Commission examined the verifiability of the liquidity benefits in recitals 1309 to 1323 of the contested decision and concluded, in recital 1324, that those liquidity benefits were not verifiable.

304    In the present case, in the first place, it must be noted that the applicant is wrong in claiming that the Commission found that the combination of margin pools of the parties to the concentration would increase entry barriers. As is apparent from recital 1005 of the contested decision, the Commission relied on the fact that barriers to enter the markets for exchange-traded European equity and interest rate derivatives were very high before the merger, as follows from the examination set out in recitals 926 to 1008 of that decision, which means that market entry is difficult and that, if it were to occur, the new entrant would be unlikely to gain sufficient liquidity in those markets within a reasonable timeframe. In that regard, it should be noted that, whereas the assessments of the entry barriers linked to the possibility of gaining liquidity concern the situation prior to the concentration, the assessments of liquidity benefits relate to the situation following that transaction.

305    In the second place, as regards the claim that the Commission cannot simultaneously argue that the savings arising from the combination of the margin pools would be insignificant and that they would be so great that the parties to the concentration’s customers would remain and new customers would become their customers after the concentration, it is sufficient to note that the Commission did not base its analysis of the effects of the concentration on the savings arising from that combination, but, as follows from recital 851 of the contested decision, inter alia, on the consequences of the combination of pre-merger market shares held by those parties and also on the ‘gravitational effect’ of the combined margin pool. The gravitational effect at issue does not correspond to liquidity savings.

306    Lastly, as regards the argument that there is evidence that bringing different contracts on a platform increases liquidity, it is sufficient to note that the applicant does not state to what extent it supports its argument of an alleged contradiction.

307    It follows that there is no contradiction in the Commission’s assessments relating to liquidity.

308    The first complaint must therefore be rejected.

–       The second complaint

309    The applicant argues that, by introducing new evidence in the contested decision with the aim of invalidating the conclusions of the analysis of the effects of the merger on liquidity, the Commission infringed the right to be heard and Article 13(2) of Regulation No 802/2004. In that regard, the applicant disputes that the new arguments put forward by the Commission are based solely on the data sent by the parties to the concentration and that the Commission’s analysis confirms the concerns expressed in the statement of objections and responds to the claims made by those parties in their submissions.

310    In that regard, it should be noted as a preliminary point that the alleged new evidence referred to by the applicant was put forward, during the administrative procedure, within the context of the examination of the extrapolation from historical data prior to the merger and the identification of the impact of previous mergers, particularly on liquidity.

311    The Commission thus stated, in paragraph 590 of the statement of objections, that it was not a priori clear that the estimated effects could be mapped onto the proposed transaction, as the competitive and market circumstances were substantially different (market concentration prior to the proposed transaction, economies of scale, etc.) and that the parties to the concentration had not attempted to argue to what extent the historical event study was representative for the proposed transaction (or why any differences would not matter). In paragraph 593 of that statement, the Commission noted, first, that reference to reductions in bid-ask spreads (and increased volume and reduced volatility) following past integration of trading and clearing platforms could give rise to a biased prediction if the proposed transaction took place in substantially different competitive and market circumstances. The Commission noted, secondly, that no effort had been undertaken by those parties to analyse how differences in market structure and market circumstances might affect the prediction as to the effects of the proposed transaction (economies of scale might get exhausted, market fragmentation and competitive pressure might be different, and so forth).

312    It follows that, in the statement of objections, the Commission validly expressed its concerns regarding the extrapolation from historical data. In addition, it should be noted that, at the hearing, the chief economist in the Commission’s DG ‘Competition’ also referred to major structural breaks, as the applicant indeed acknowledges. The applicant was thus given an opportunity to put forward its point of view with regard to that objection by the Commission.

313    Notwithstanding the above, it is appropriate to examine, for the sake of completeness, the applicant’s claims as to the five allegedly new items of evidence.

314    As regards, in the first place, the increase in the number of firms that are members of the platforms of both of the parties to the concentration, referred to in recital 1257 of the contested decision, it is sufficient to observe that the applicant itself accepts, in the application, that that issue was addressed in the statement of objections, in paragraph 594 thereof, from which it is apparent, in essence, that the Commission claimed that those parties had failed to consider, inter alia, the existence of more significant overlaps in their membership bases. The applicant also acknowledges that the statistical analysis carried out in that recital is based on the data provided by those parties. Moreover, it should be noted that the parties at issue submitted observations in that regard in their response, of 16 November 2011, to the commentaries given in the hearing. As for the fact that the parties at issue were not able to comment on the detailed rules under which the Commission carried out its analysis, in the present case, by aggregating all entities under the control of a mother company, it is sufficient to note that the Commission is not obliged, prior to the adoption of a decision under Article 8 of Regulation No 139/2004, to communicate the detailed rules of the analytical framework which it intends to implement. The case-law requires it only to enable the undertaking concerned, during the administrative procedure, to express its views effectively on the correctness and relevance of the facts and circumstances alleged and on the documents used to support the Commission’s allegation of an infringement (see Case C‑310/93 P BPB Industries and British Gypsum v Commission [1995] ECR I‑865, paragraph 21 and the case-law cited). It is, in any event, permissible for an applicant to challenge the merits of that analysis within the context of an action against such a decision.

315    As regards, in the second place, the high frequency trading referred to in recital 1259 of the contested decision, it is sufficient to note that the parties to the concentration were able to submit their observations in that regard, as is apparent from their responses to the commentaries given in the hearing. As for the fact that the Commission referred, in recitals 1259, 1260 and 1263 of that decision, to academic writings, it is sufficient to observe that, even on the assumption that, as the applicant submits, those articles were not mentioned during the administrative procedure, the fact remains that they do not constitute the principal and necessary basis of the Commission’s reasoning concerning the impact of the high frequency trading, set out in recitals 1258 to 1261 of that decision, and are, in that regard, only of an ancillary and non-decisive nature. In any event, those writings are public and therefore accessible to those parties. Moreover, they constitute only part of the items relied on by the Commission in its analysis, since that analysis also relied on the items referred to in footnotes 1072 and 1075 of the same decision, and, in particular, the presentations made by third parties at the hearing.

316    As regards, in the third place, the link of complementarity between high frequency trading and the adoption of Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments amending Council Directives 85/611/EEC and 93/6/EEC and Directive 2000/12/EC of the European Parliament and of the Council and repealing Council Directive 93/22/EEC (OJ 2004 L 145, p. 1, ‘MiFID’), referred to in recitals 1261 to 1263 of the contested decision, it should be observed that the academic article cited by the Commission in that context, in recital 1261 of that decision, was public and therefore accessible to the parties to the concentration. The same is true of Oxera’s study, referred to in recital 1262 of that decision, on which the applicant relies in its action and which is annexed to the application, and of the presentation given by the London Stock Exchange, to which reference is made in the same recital and which the applicant indeed admits was divulged and made accessible in the file.

317    As regards, in the fourth place, the changes in competitive conditions before the adoption of MiFID, it must be observed that, in their response dated 16 November 2011 to the commentaries given in the hearing, the parties to the concentration submitted observations relating to the entry into force of that directive. As for the documents which the applicant claims were not communicated to it, namely an academic article and a UK Competition Commission decision, it must be stated that they are also public documents. Moreover, the academic article at issue was cited in footnote 549 of the statement of objections.

318    As regards, in the fifth place, the argument relating to secular trends in willingness to trade, referred to in recital 1267 of the contested decision, it is sufficient to note that the document of the International Monetary Fund (IMF), which the applicant states was not submitted to it, but which is also a public document, is invoked in that recital only to confirm the submission (put forward by way of example of the changes having taken place) that, in essence, it cannot be excluded that there are secular trends in willingness to trade equity that have increased expected transaction volume and thus reduced bid-ask spreads.

319    As regards, lastly, the third party document referred to in recital 1272 of the contested decision, it is sufficient to note that that document, which is freely available on the Internet and is therefore public, constitutes only one of the items on which the Commission relied in order to justify its claim that there might be good reasons to explain the decreasing trend in average bid-ask spreads pre-2002.

320    In any event, it should be noted, for the sake of completeness, that, even on the assumption that the Commission infringed the applicant’s right to be heard by not communicating to it some of the items which it has referred to within the context of the present complaint, the fact remains that the other items relied on by the Commission in support of its argument can justify, to the requisite legal standard, its assessment, set out in recital 1256 of the contested decision, that cash markets have undergone a large number of profound changes since the creation of Euronext. Those items also substantiate its conclusion, set out in recital 1268 of that decision, that, given the multitude of changes which have taken place over the last ten years, it is impossible to impute any efficiency gain from a 2002 merger into a transaction that had to be completed in 2012. None of the arguments put forward by the applicant permits the finding that, if it had commented on the items at issue within the context of the present complaint, the Commission’s general conclusion would have been called into question.

321    As for the statement that the analysis conducted in section 12.3.3.2 of the contested decision is based solely on data communicated by the parties to the concentration, it must be observed that it is indeed incorrect, but that, as is apparent from the foregoing, that error has no effect on the lawfulness of that decision.

322    It follows that the second complaint must be rejected.

–       The third complaint

323    The applicant argues that the Commission failed to fulfil its obligation to state reasons by ignoring the responses by the parties to the concentration, of 16 November 2011, to the commentaries given in the hearing regarding the alleged changes in circumstances where those responses were not consistent with the conclusions in the contested decision.

324    As is apparent from the application, the applicant essentially puts forward four arguments in support of that complaint, which relates to the statement of reasons for the contested decision and not to its substance.

325    In the first place, as regards the argument to the effect that the Commission ignored the submission that the presence of some common customers of the parties to the concentration did not explain by itself the appearance of liquidity benefits and the submission that many customers were still members of only one exchange, it must be noted, first of all, that the Commission did not claim that the presence of some common customers explained by itself the appearance of such benefits or dispute that many customers were still members of only one exchange. In addition, in recital 1257 of the contested decision, the Commission examined the argument that those parties could increase liquidity because of a ‘distribution effect’, namely an effect by which companies trading in just one platform benefit from being able to distribute a broader range of securities in both platforms. In that regard, the Commission found that the scope for such a distribution effect had shrunk substantially. In particular, the Commission observed that, at the time of the Euronext merger, the total volume controlled by companies trading in the different exchanges which had then merged was low compared to the volume generated by companies trading in both the applicant and currently in NYSE Euronext. The Commission concluded that, even if a distribution effect could be observed, it would be much smaller and could not be estimated on the basis of that historical merger. In the light of the above, that first argument must be rejected.

326    In the second place, as regards the argument that the Commission ignored the evidence that the results of Compass Lexecon (‘CL’), the parties to the concentration’s economic consultancy, were robust, even when the period used ended in 2005, that is before high frequency trading had an impact, it is sufficient to note that the Commission’s assessments are not based exclusively on the changes from 2005 onwards, or on the effect of high frequency trading, with the result that, even if established, that second argument would in any event be ineffective and must therefore be rejected. Moreover, in recitals 1250 and 1258 of the contested decision, the Commission refers to that evidence amongst the evidence taken into account.

327    In the third place, as regards the argument that the Commission ignored the fact that CL had taken into account the growth of multilateral trading facilities, it is sufficient to note that the Commission stated, in recital 1285 of the contested decision, that the MiFID volume variable used by the parties to the concentration in their regressions did not include the volume generated by all related multilateral trading facilities, since the trading volume of Turquoise was not included. According to the Commission, that implied that the magnitude of drop in spreads due to the effect of MiFID was underestimated. It follows that, in its statement of reasons, the contested decision refers to the fact that those parties’ analysis takes into account multilateral trading facilities, but notes that their analysis does not take them all into account. A failure by the Commission to determine whether the introduction of a system (which it found those parties had not included) would have led to a different result is irrelevant, since the present complaint concerns the statement of reasons for the contested decision and not its substance, such a failure concerning the substance of the decision. In any event, the Commission stated that the omission at issue implied that the magnitude of drop in spreads due to the effect of MiFID was underestimated. It follows that that third argument must be rejected.

328    In the fourth place, as regards the argument that the Commission ignored the fact that the parties to the concentration re-estimated their model to account for the entry of Dutch Trading Service (‘DTS’), it must be noted that, in recital 1283 of the contested decision, the Commission stated that, following some comments from it at the hearing, those parties had introduced, in their analysis, a ‘permanent effect’ to control for the introduction of a new regulation in France on 3 May 2001 and the entry of DTS between May 2004 and September 2005. In that recital, the Commission took the view that, by introducing such an effect, the estimated impact of the merger significantly decreased and that it could not be excluded that other unobserved events might have had persistent effects, especially since the list of events employed by those parties was limited. The Commission therefore did indeed take into consideration, in the statement of reasons for the contested decision, the fact that the parties had re-estimated their model to account for the entry of DTS. It follows that that fourth argument must be rejected.

329    It follows from all of the foregoing that the third complaint must be rejected.

–       The fourth complaint

330    The applicant states that the Commission’s claim that the entry of DTS affected the results of CL’s regression analysis is incompatible with the analysis of that entry at the material time. It is therefore illogical for the Commission to claim that that entry constitutes a change in circumstances that eliminated the scope for liquidity benefits whereas, in the analysis of that transaction, the Commission had taken the view that there was real scope to see efficiency increase.

331    In that regard, it follows from recital 1265 of the contested decision that, in order to illustrate the fact that competitive conditions had changed even before the introduction of MiFID, the Commission relied on the fact that, already in May 2004, the London Stock Exchange had entered the market to compete with Euronext Amsterdam, by launching DTS to offer electronic order book trading in the top 50 Dutch equities. It is apparent, in particular, from that recital that, according to the UK Competition Commission decision, Euronext Amsterdam’s fees reduced by approximately 30% as a direct result of the entry of DTS and that, despite its lack of success, DTS appears to have generated a significant response from Euronext, at least in the short term.

332    The Commission added, in recital 1266 of the contested decision, that, contrary to what was claimed by the parties to the concentration, academic literature had shown that the entry of DTS was far from having had a negligible effect, since Euronext cut its fees by 50% on 23 April 2004.

333    In the present case, the Court finds, in the light of the above, that the Commission relied on the example of the entry of DTS to illustrate that competitive conditions had changed even before the introduction of MiFID. As follows from the contested decision, the entry of DTS constitutes only one example amongst all the circumstances, referred to by the Commission, that have changed over the last ten years and which have had an effect on liquidity.

334    By contrast, contrary to what the applicant claims, the Commission did not submit that the entry of DTS constituted a change in circumstances that eliminated the scope for liquidity savings, since there is nothing in the contested decision which states that that fact alone would have had such an effect.

335    As for the claim that the Commission failed to mention that it had investigated a complaint by DTS against Euronext, the applicant does not state to what extent such a claim would be capable of calling into question the assessments set out in the contested decision. In any event, since the DTS example constitutes only one example amongst those referred to by the Commission in support of its conclusions, even if that example were irrelevant, those conclusions cannot be called into question.

336    As regards, lastly, the argument that the ‘Battle of the Bund’ is the only example of direct competition between the parties to the concentration, it is sufficient to note that the contested decision is based on other examples of competition, as is apparent, inter alia, from section 11.2.1.4.3 of that decision.

337    It follows that the fourth complaint must be rejected.

–       The fifth complaint

338    The applicant argues that the claims in the contested decision regarding an alleged downward trend in bid-ask spreads constitute new evidence and new conclusions on which the parties to the concentration did not properly have the opportunity to submit their observations. Therefore, the Commission infringed the right to be heard and Article 13(2) of Regulation No 802/2004.

339    In that regard, it is apparent from recital 1269 of the contested decision that, in order to argue that the analysis submitted by the parties to the concentration was not such as to identify the impact of previous mergers, the Commission stated that the alleged impact of those mergers might be the fact of an increasing trend in liquidity already existing pre-merger which was not adequately controlled for.

340    In the present case, in the first place, it should be noted that the Commission stated, in paragraph 592 of the statement of objections, that the choice of liquidity measure was not innocuous, as different measures might move in opposite directions, thereby giving conflicting messages about the evolution of market liquidity. In addition, it is apparent, in essence, from paragraph 598 of that statement that the Commission stated that the parties to the concentration relied on an event study methodology, whereby exchange mergers were entered as simple before/after dummy variables, which neglected the underlying trends in transaction volumes processed on different platforms. The Commission stated that the recent literature relied on more sophisticated methodologies that allowed for more time-variation in exchange market fragmentation and concentration given that daily traded volumes in the exchanges studied and competing trading venues evolved dynamically over time, which could not be captured by a simple before/after dummy variable. The Commission therefore held that the results submitted by the parties to the concentration might be biased.

341    It follows that, in the statement of objections, the Commission clearly set out its queries as regards the examination of the evolution of liquidity and, in particular, as regards the existence of an underlying trend of transactions, and therefore of liquidity, which might affect the analysis proposed by the parties to the concentration. Those parties were therefore given an opportunity to submit their observations and, in particular, to submit, in response to that statement, analyses taking into account the possible existence of an underlying trend of liquidity.

342    In the second place, concerning the existence of a downward trend in bid-ask spreads, it is apparent from the minutes of the meeting of 23 November 2011 between the chief economist in the Commission’s DG ‘Competition’ and CL that the merger impact effect may depend on variables which have changed over time and that, by running the regressions, the existence of ‘a strong declining trend in bid-ask spreads’ may be observed. The applicant acknowledges that those comments were made and that, at that meeting, two graphs relating thereto were distributed. The applicant was not only given an opportunity to submit observations in that regard, but actually did so, by means of CL, on 13 December 2011. As for the argument that CL should have reverse-engineered the Commission’s regression based on the two graphs at issue, it must be observed that the applicant does not dispute that the specifications used by the Commission were set out on the documents received, or that the code used was known to CL. The applicant nevertheless maintains, in the reply, that those data were insufficient, and the Commission acknowledges, in the rejoinder, that it did not provide the codes to generate the quarterly dummy variables interacting with the exchange specific effect. However, the Commission contends that the creation of those variables is trivial and was explicitly mentioned in the meeting of 23 November 2011. Without there being any need to rule on the substance of that contention, it is sufficient to note that it is not apparent from the file that the applicant sought disclosure of the data which it allegedly needed to reproduce the analyses at issue.

343    In the third place, as for the claim that the Commission was wrong to state, in its letter of 8 December 2011, that the analysis of its chief economist in DG ‘Competition’ contained no new elements of fact, it must be observed that the applicant has not adduced any evidence to call into question the statement in that letter that no new data were collected by that chief economist at the meeting of 23 November 2011 and that the chief economist’s analysis was based solely on the data communicated by CL. In addition, it must be noted that, as is apparent from that letter, the analysis at issue illustrates the arguments put forward in the statement of objections, in particular those set out in paragraph 598 thereof. The fact that that paragraph does not identify the downward nature of the trend referred to is irrelevant in that regard, since it was only a preliminary assessment and since the Commission acted on the basis of data communicated subsequently by the parties to the concentration.

344    In the fourth place, it must be noted that the Commission’s analysis concerning the identification of the impact of the previous mergers, set out in section 12.3.3.2.1.3 of the contested decision, is based, inter alia, on the data provided by the parties to the concentration, as is apparent in particular from recital 1270 of that decision. As regards the annex to that decision, which contains, according to the applicant, a large number of regressions relating to different analyses which were never discussed, such as volume or volatility, it must be noted that, as is apparent from point 2 of that annex, the analysis which it contains is based on the data used by those parties and uses the same specifications as those used by those parties. The information on which the Commission based its conclusions was therefore known to those parties. In that regard, it is important to note that the Commission must give as reasons for its ultimate decision its final assessments based on the situation existing at the time the formal proceedings are closed and is not obliged to explain any differences with respect to its provisional assessments set out in the statement of objections (Bertelsmann and Sony Corporation of America v Impala, paragraph 248 above, paragraphs 64 and 65). Furthermore, the right to be heard extends to all the factual and legal material which forms the basis for the decision, but not to the final position which the authority intends to adopt (Case T‑15/02 BASF v Commission [2006] ECR II‑497, paragraph 94 and the case-law cited). It follows that the Commission was not required to indicate, before the adoption of the contested decision, the conclusions that it would reach, in that decision, on the basis of all the information provided during the administrative procedure concerning the evaluation of the effects of the proposed merger on liquidity.

345    It follows from the foregoing that the fifth complaint must be rejected.

–       The sixth complaint

346    The applicant states that the Commission failed to take account of the evidence submitted by the parties to the concentration showing that its finding of the existence of a downward trend in bid-ask spreads, explained in the meeting of 23 November 2011, is based on flawed methodology.

347    In that regard, it should be noted, in the first place, that the applicant’s line of argument in the application is inherently contradictory. First, it complains that the Commission failed to take into account the criticisms by the parties to the concentration relating to the finding of a downward trend in liquidity. Secondly, it criticises certain responses by the Commission to those criticisms in the contested decision and, in particular, in footnote 1103 thereof.

348    In the second place, it is apparent from recitals 1280 to 1286 of the contested decision that the Commission expressly examined the criticisms by the parties to the concentration of its liquidity evaluation model. It follows that the applicant is incorrect in claiming that the Commission failed to take their criticisms into account.

349    In the third place, as regards the Commission’s line of argument set out in footnote 1103 of the contested decision, it should be noted that it seeks to respond to the parties to the concentration’s criticism that the Commission’s model was not correctly specified, and states to that effect that the model specifications put forward by those parties were incorrect. It is sufficient to note that, even if the criticisms put forward by those parties were well founded and the Commission’s response were incorrect, as the applicant claims, that would have no bearing on the Commission’s conclusions. It is apparent from recital 1281 of that decision that the Commission dismissed those parties’ criticisms, maintaining that, even if the model were misspecified, the control variables used by the parties in question were clearly unable to pick up the underlying downward tendencies, especially for the pre-2002 period. In that context, it is important to note that, as follows from recitals 1270 to 1274 and 1318 of that decision, the raw data averaged across securities demonstrate the existence, before the historical mergers affecting the exchange markets, of a clear downward trend.

350    It follows that the sixth complaint must be rejected, without there being any need to examine the applicant’s criticisms of the Commission’s considerations set out in footnote 1103 of the contested decision.

–       The seventh complaint

351    The applicant submits that the Commission’s criticisms regarding the calculation of estimated savings resulting from the reduction in the bid-ask spread constitute new evidence and conclusions on which the parties to the concentration did not have the opportunity to submit their observations. In addition, the explanations in the annex to the application demonstrate that those criticisms are misconceived.

352    In that regard, it is sufficient to note that, since the Commission’s criticisms constitute only a refutation of the calculations put forward by the parties to the concentration in the CL report entitled ‘Efficiencies from the proposed Transaction’, attached to their response to the statement of objections, and not new evidence to substantiate its conclusion relating to the verifiability of the liquidity efficiencies, no infringement of the applicant’s rights of defence can be found. Moreover, as is apparent from recitals 1287 to 1293 and 1310 to 1315 of the contested decision, the Commission’s criticisms are based on the data provided by those parties themselves.

353    In any event, it should be noted that, although the parties to the concentration referred, prior to the statement of objections, to liquidity benefits, it is only in the report attached to their response to the statement of objections that the specific calculations of those benefits were communicated. The Commission was therefore not able to express doubts regarding the calculation of that evaluation at the statement of objections stage. In that regard, it must be observed that, as is apparent from recital 1148 of the contested decision, [confidential]. It follows that they were given an opportunity to submit all the evidence to substantiate the validity of their calculations.

354    As for the applicant’s claim that explanations annexed to the application show that the Commission’s criticisms regarding the calculation of estimated savings resulting from the reduction in the bid-ask spread are incorrect, it must be remembered that, pursuant to Article 21 of the Statute of the Court of Justice and Article 44(1)(c) of the Rules of Procedure, every application is to state the subject-matter of the proceedings and a summary of the pleas in law on which the application is based. According to consistent case-law, for an action to be admissible, it is necessary that the basic matters of law and fact relied on be indicated, at least in summary form, coherently and intelligibly in the application itself. Whilst the body of the application may be supported and supplemented on specific points by references to extracts from documents annexed thereto, a general reference to other documents, even those annexed to the application, cannot make up for the absence of the essential arguments in law which, in accordance with the abovementioned provisions, must appear in the application. Furthermore, it is not for the Court to seek and identify in the annexes the pleas and arguments on which it may consider the action to be based, since the annexes have a purely evidential and instrumental function (see Case T‑201/04 Microsoft v Commission [2007] ECR II‑3601, paragraph 94 and the case-law cited). In the present case, the applicant merely refers to the content of an annex to the application, consisting of a CL document, subsequent to the contested decision, entitled ‘Additional Comments on Criticisms Raised in the Prohibition Decision’. Regarding that claim, the Court finds that the body of the application does not contain any arguments the content of which is clarified by the annex in question. Moreover, the applicant merely makes a general reference to that annex, without further indication. All of the applicant’s arguments relating to that claim are therefore in the annex and not in the body of the application. In those circumstances, that claim must be rejected as inadmissible.

355    It follows that the seventh complaint must be rejected.

–       The eighth complaint

356    The applicant alleges that the Commission’s claim that it is not possible to determine the proportion of savings that would be passed on to consumers is incorrect. The claim that the parties to the concentration could recuperate a substantial portion of efficiency gains is also incorrect. Since customers would enjoy liquidity benefits, the Commission should have examined whether the amount of those benefits would be outweighed by any post-merger price increases.

357    In that regard, since, as follows from the foregoing, no evidence has called into question the Commission’s assessment that the liquidity benefits are not verifiable, the present complaint, which essentially concerns the question whether the efficiencies benefit consumers, is ineffective. As is apparent from point 78 of the 2004 Guidelines, the conditions that the efficiencies benefit consumers, be merger-specific and be verifiable are cumulative.

358    It follows that the eighth complaint must be rejected, as, consequently, must the third part of the plea in its entirety.

 The fourth part, concerning IT and infrastructure cost savings

359    In connection with this part, the applicant essentially puts forward three complaints.

360    By its first complaint, the applicant submits that the Commission wrongly rejected IT and user access cost savings on the ground that they were not verifiable. By rejecting the evidence in that regard, the Commission has imposed a burden of proof on the parties to the concentration which is too high and runs counter to the 2004 Guidelines and the judgment in Ryanair v Commission, cited in paragraph 61 above.

361    In that regard, it should be noted, first of all, that, according to point 87 of the 2004 Guidelines, it is incumbent upon the parties to the concentration to provide in due time all the relevant information necessary to demonstrate that the claimed efficiencies are merger-specific and likely to be realised. Similarly, it is for the parties to the concentration to show that the efficiencies are likely to counteract any adverse effects on competition that might otherwise result from the merger, and therefore benefit consumers.

362    It follows that the burden of proving that the claimed efficiencies are verifiable falls on the parties to the concentration. That allocation of the burden of proof can be considered to be objectively justified since, first, it is those parties which hold the relevant information in that regard and, secondly, the argument regarding efficiencies seeks to counteract the Commission’s conclusions that the proposed merger would probably significantly impede effective competition by creating a dominant position.

363    Next, as is rightly stated in point 86 of the 2004 Guidelines, efficiencies have to be ‘verifiable’ such that the Commission can be reasonably certain that the efficiencies are ‘likely’ to materialise, and be substantial enough to counteract a merger’s potential harm to consumers. The same point states, also correctly, that the more ‘precise and convincing’ the efficiency claims are the better the Commission can evaluate the claims. It is stated that, where reasonably possible, efficiencies and the resulting benefit to consumers should be ‘quantified’ and that, when the necessary data are not available to allow for a precise quantitative analysis, it must be possible to foresee a ‘clearly identifiable’ positive impact on consumers, ‘not a marginal one’. The condition relating to the verifiability of efficiencies does not therefore require the notifying party to provide data capable of being independently verified by a third party or documents, dated pre-merger, which serve to objectively and independently assess the scope for efficiency gains generated by the acquisition (Ryanair v Commission, paragraph 61 above, paragraph 406).

364    Lastly, it should be noted that the Commission examined the parties to the concentration’s claims relating to IT and user access cost efficiencies in recitals 1161 to 1186 of the contested decision. It concluded, in recital 1187 of that decision, that those efficiencies were not verifiable and that, even if they were, it would be unclear whether they were merger-specific and to what extent they would be passed on to customers. As regards, more particularly, the lack of verifiability of those efficiencies, the Commission stated, in recital 1175 of that decision, that, also taking into account the lack of reliability based on the significant deficiencies in the evidence submitted by those parties, the claimed cost savings had not been substantiated to the required standard.

365    In the present case, it must be observed that the Commission did not reject the data submitted by the parties to the concentration on the sole ground that they were based on presumptions that could not be independently verified; nor did it require a particular type of document, as was the case in Ryanair v Commission, cited in paragraph 61 above, on which the applicant relies in support of its argument. Nor did the Commission reject them on the ground that precise quantification of the efficiencies is required.

366    The Court points out, in the light of a reading of recitals 1168 to 1172 of the contested decision as a whole, that the claim in recital 1168 of that decision that it can be reasonably expected that the parties to the concentration either independently or with the support of external consultants or experts would normally evaluate the prospects of cost savings and synergies even before the transaction is implemented, and the claim in recital 1169 of that decision that those parties’ economic experts stated that they had not been involved in the discussions with customers, nor had they vetted the cost savings as estimated by the interviewees, do not constitute the basis on which the Commission rejected the evidence put forward by those parties.

367    As is apparent from recitals 1168 to 1172 of the contested decision, the Commission found that the evidence put forward by the parties to the concentration was unsatisfactory because of its unreliability, with the result that it did not enable the claimed efficiencies to be verified. In particular, the Commission observed, in recital 1169 of that decision, that those parties had extrapolated estimates that follow from sending out a very limited number of ad hoc and poorly-designed e-mails to selected customers with tight turnaround deadlines. In recital 1172 of that decision, the Commission concluded that the submitted evidence did not enable the claimed cost savings to be verified. Moreover, in recital 1175 of the same decision, the Commission referred, inter alia, to the lack of reliability based on the significant deficiencies in the evidence submitted by those parties in concluding that the claimed cost savings had not been substantiated to the required standard. The weakness of the evidence submitted by those parties therefore justified the Commission’s conclusions.

368    Thus, as regards the [confidential] customers that are members of both cash platforms, the Commission stated, in recital 1170 of the contested decision, that it did not know where the cost savings estimates listed by the parties to the concentration came from, since its request for information of 17 November 2011 did not result in any guidance or explanation as to the origin and reliability of the estimates provided. In particular, the Commission stated that there had been no mapping of the evidence in the file into the claimed efficiencies as had been requested by the Commission in that request for information, and that only general reference had been made to a large number of discussions with users and stakeholders and feedback from presentations by the parties to the concentration to several cash users. The Commission therefore held that it was entirely unclear how the reported claimed savings per customer and per group of customers that had then been extrapolated to the entire group and summed across groups had been constructed. As a result, the Commission held that the evidence did not allow it to verify the claimed cost savings.

369    As regards the [confidential] customers that are members of both derivatives platforms, the Commission observed, in recital 1171 of the contested decision, that, so far as concerns the responses of seven customers relied on by the parties to the concentration in order to substantiate their estimate, either the deadline for responding granted to them by the parties was not reported, or, where it could be identified, it appeared extremely short (less than two days and sometimes less than a day) and that the questions asked to those customers had been phrased very generally and informally without any proposed template to ensure comparability in responses. The Commission therefore found that it was to be expected that the responses were not consistent and did not allow to average cost estimates in any meaningful way. The Commission accepted that the reply to its request for information of 17 November 2011 explained how some of the numbers in the seven responses had been mapped onto the ultimate cost reduction estimates, but noted, however, that the mapping was largely discretionary and that important entries in the final retained estimates were still left out. The Commission therefore observed, in recital 1172 of that decision, that it was unclear how the reported savings made by customers and by groups of customers had been constructed and that, as a result, the submitted evidence did not allow it to verify the claimed cost savings.

370    Lastly, similar assessments are put forward in recitals 1173 and 1174 of the contested decision, which concern, respectively, the cost savings made by Independent Service Providers and the lower charges for connectivity associated with the consolidation of clearing-houses.

371    The Court finds that, in the present case, the applicant has not adduced any evidence to validly call into question the Commission’s assessments of the evidence put forward by the parties to the concentration during the administrative procedure. The applicant merely asserts that, although that evidence was approximate, it showed that customers expected that the merger would result in significant net IT and user access cost savings, and does not adduce any evidence to call into question the Commission’s criticisms in that regard.

372    As regards the fact that the Commission stated, in recital 1175 of the contested decision, that it could not be ‘excluded that there may be a positive impact on customers from avoiding duplication of software maintenance, software updates, and connection charges’, it cannot be inferred that, in so doing, the Commission accepted that the evidence put forward by the parties to the concentration during the administrative procedure showed the existence of a clearly identifiable impact, within the meaning of the 2004 Guidelines. In addition, it is apparent from the items on which the Commission relied in order to exclude the possibility in question — in the present case, the two e-mails cited in footnote 995 of the contested decision — that some customers took the view that they would bear IT costs as a result of the merger. The fact that one of those e-mails also shows, as noted by the applicant, that one customer expects to have net cost savings after one and a half or two years, does not call into question the Commission’s statement, which refers to the period of transition and migration. In that regard, it should be observed, moreover, that point 86 of the 2004 Guidelines correctly states that, in general, the longer the start of the efficiencies is projected into the future, the less probability the Commission may be able to assign to the efficiencies actually being brought about. As for the applicant’s claim that there are no indications that transitional integration costs would outweigh the IT and user access cost savings, it is sufficient to state that the Commission did not claim that such is the case.

373    As regards the conclusions of the Impact Assessment on the Proposal for a Council Directive on a common system of financial transaction tax (see paragraph 125 above), which, according to the applicant, contradicts the Commission’s claim that the evidence of the savings at issue are not verifiable, it is sufficient to note that it is a public document and that it was for the parties to the concentration to produce it if they intended to demonstrate the claimed efficiencies by relying on those conclusions, since the burden of proof is upon them in that regard. In any event, those conclusions do not specifically refer to the concentration at issue, with the result that they are not directly relevant to the examination of the verifiability of the efficiencies, which must be merger-specific.

374    It follows from the foregoing that the fourth part must be rejected, without there being any need to examine the two other complaints concerning merger specificity and consumer pass-on.

375    The second plea must accordingly be rejected in its entirety.

 The third plea in law, alleging errors of law and assessment regarding the commitments

376    This plea essentially has four parts: it is alleged (i) that the rejection of the divestiture commitment is based on incorrect evidence, (ii) that the existence of a symbiotic relationship between single equity derivatives and equity index derivatives is contradicted by the Commission’s definition of the relevant market, (iii) that the Commission’s rejection of the commitment on the access of third parties undermines its market definition and efficiency gains assessment and (iv) that the Commission’s rejection of the licensing commitment is vitiated by an error and contradicted by its conclusions regarding technological competition.

377    Before examining these parts of the plea, it is important to note that Article 8(2) of Regulation No 139/2004 states:

‘Where the Commission finds that, following modification by the undertakings concerned, a notified concentration fulfils the criterion laid down in Article 2(2) …, it shall issue a decision declaring the concentration compatible with the common market.

The Commission may attach to its decision conditions and obligations intended to ensure that the undertakings concerned comply with the commitments they have entered into vis-à-vis the Commission with a view to rendering the concentration compatible with the common market.

A decision declaring a concentration compatible shall be deemed to cover restrictions directly related and necessary to the implementation of the concentration.’

378    Accordingly, first, the Commission is under an obligation to examine a concentration as modified by the commitments validly proposed by the parties to the concentration and, second, the Commission can declare the concentration incompatible with the common market only where those commitments are insufficient to prevent the creation or strengthening of a dominant position as a result of which effective competition would be significantly impeded. In that regard, it must none the less be borne in mind that the burden of proof on the Commission is without prejudice to the wide discretion conferred on it by Article 8(2) of Regulation No 139/2004 (Case T‑87/05 EDP v Commission [2005] ECR II‑3745, paragraph 63).

379    In the present case, the December commitments are essentially composed of three commitments, namely:

–        the commitment to divest parts of the single equity derivatives business of the parties to the concentration (‘the divestment commitment’);

–        the commitment to provide access to the merged entity’s clearing-house and margin pool to eligible Independent Third Parties for certain eligible derivative contracts, based on European bond, European equity index or European interest rate underlyings (‘the ITPA commitment’ (Independent Third Party Access));

–        the commitment to grant a licence to Eurex’s interest rate trading software (‘the licence commitment’).

380    The parties to the concentration also presented an informal pledge not to increase derivatives trading and clearing fees for a period of three years.

381    Within the context of its assessment of the December commitments, the Commission essentially held:

–        that their scope was insufficient as it did not entirely address all competition concerns identified;

–        that they were unlikely to be effective in practice as there were significant doubts about their workability and ability to be implemented and monitored;

–        that they would be unlikely to lead to a timely entry that would constrain the merged entity to a sufficient extent in all markets where competition concerns were identified.

382    Therefore, on the basis of the analysis of the commitments and the results of the market test, the Commission concluded that overall, the December commitments were not suitable to remedy the competition concerns identified and that, accordingly, they were not capable of remedying the significant impediment to effective competition in the markets identified in the contested decision, and of rendering the notified transaction compatible with the internal market.

 The first part, alleging that the rejection of the divestment commitment is based on incorrect evidence

383    The applicant criticises the Commission’s conclusion that the implementation of the divestment commitment was not definite because of the uncertainty about obtaining the approvals of the competent national authorities, since the second market investigation showed that [confidential] obtaining such approvals could be problematic. [confidential].

384    In that regard, it should be noted at the outset that the Commission did not reject the divestment commitment on the sole ground that its implementation was not definite because of the uncertainty about obtaining the approvals.

385    In the first place, although it is true that, in concluding that the scope of the December commitments was insufficient, the Commission referred, in recital 1447 of the contested decision, concerning the divestment commitment, to the possible difficulty in obtaining the required regulatory approvals, it nevertheless also held, with regard to the second phase of the market investigation, that obtaining the necessary regulatory approvals could imply delays in the divestment process, which in turn would result in a significant execution and valuation risk for the potential purchaser. That finding is not disputed by the applicant in the application. The complaint put forward in the reply that the delays referred to in that recital were not supported by evidence must be dismissed as inadmissible since it was not put forward in the application, which did not dispute that ground of that decision, and since it is not based on matters of law or of fact which came to light in the course of the procedure. Moreover, even if it were well founded, that complaint cannot have any bearing on that decision, since, as follows from the examination of this part of the plea and the second part of the plea, the rejection of the divestment commitment is also based on other grounds, the basis of which the applicant has failed to validly call into question.

386    In the second place, in concluding that the December commitments were not suitable to remedy competition concerns, the Commission found, in recital 1452 of the contested decision, concerning the divestment commitment, that, provided that all NYSE Euronext single equity business would indeed be divested, the divestment business would represent [confidential] % of derivatives revenues. In that regard, the Commission essentially held that, provided that all divested open interest were to remain with the purchaser, which appeared to be a rather unlikely scenario in the light of the results of the market investigation, that would create a small scale operator that would have to compete head-to-head with the merged entity. The Commission also noted that any such competition would not be on an equal footing as the purchaser would not necessarily have the possibility of offering trading in the underlying cash equities and in the linked equity index derivatives. Nor has that finding been disputed by the applicant.

387    Lastly, in concluding that the December commitments were unlikely to lead to a timely and sufficient entry, the Commission found, in recital 1460 of the contested decision, that, as regards the divestment commitment, it was unclear whether a suitable purchaser could be found in a timely fashion, in particular in view of the questionable viability of the business and the likely regulatory hurdles leading to a substantial risk for a potential purchaser. The Commission added, in recitals 1461 and 1462 of that decision, that, while the parties to the concentration had claimed that they were in discussions with several potential purchasers for the divestment business, only [confidential] had indicated that it would be potentially interested, depending on the valuation of the business. However, according to the Commission, even if [confidential] were to acquire the divestment business, in view of the limited scale of the business, it is unlikely that it would be in a position to constrain the merged entity in a similar fashion as those parties constrain each other pre-merger in the area of European single equity derivatives. Those findings have not been properly refuted by the applicant in the application.

388    It follows from the foregoing that the rejection of the divestment commitment is not solely based on the uncertainty as to the grant of regulatory approvals, which relates to the scope of that commitment, but on a set of separate grounds, which relate to the question whether it is suitable to remedy competition concerns and whether it would lead to a timely and sufficient entry.

389    Since, as is apparent from the application, the arguments put forward by the applicant in support of this part of the plea concern only the uncertainty as to the grant of regulatory approvals, this part must be rejected, subject to the examination of the second part of the plea, which also concerns the divestment commitment.

 The second part, alleging that the existence of a symbiotic relationship between single equity derivatives and equity index derivatives is contradicted by the Commission’s definition of the relevant market

390    The applicant disputes the existence of a symbiotic relationship between single equity derivatives and underlying cash equities on the one hand and single equity derivatives and equity index derivatives on the other, by virtue of which the purchaser of the business divested by the parties to the concentration cannot compete with them unless it offers both the derivatives and the underlying equities. In any event, even if such a relationship did exist, the Commission did not take it into account in its analysis of competitive constraints. Finally, since it never raised an argument of that kind before those parties during the administrative procedure, the Commission infringed their rights of defence.

391    In that regard, it should be noted that the Commission stated, in recital 1364 of the contested decision, that the market investigation had revealed that single equity derivatives contracts exist in a symbiotic relationship with the underlying cash equities on the one hand and with equity index derivatives on the other hand. In recital 1365 of that decision, the Commission added that, given that the divestment business did not foresee divestiture of any of those symbiotic products, the link would be broken, putting strain on the sustainability of the divestment business over time, since the sustainability of a margin pool depended on a cross-selection of contracts, the ability to offer margin offsets and the breadth of the product portfolio. As a result, market participants expressed serious concerns about the viability on a lasting basis of the divestment business.

392    It should also be noted that, within the context of the assessment of the scope of the December commitments, the Commission observed, in recital 1448 of the contested decision, that, as regards the divestment commitment, while it is true that those commitments addressed, to a certain extent, the issue of the symbiotic relationship between single equity derivatives and equity index derivatives by offering cross-margining between the divested single equity contracts and equity index contracts in the merged entity’s margin pool, the issues of symbiotic relationship between single equity derivatives and underlying cash equities remained unresolved. Therefore, it held that, as had been indicated during the market investigation, it was possible that, for viability purposes, the divestment business would have to include some additional assets.

393    In the present case, it must be stated at the outset that, even on the assumption that the symbiotic relationship at issue, which was referred to within the context of the examination of the scope of the divestment commitment, did not exist, that would have no bearing on the rejection of the divestment commitment, since that rejection is also based, as is apparent from the first part of this plea, on grounds other than those at issue in this part of the plea, which relate to the question whether the commitment at issue is suitable to remedy competition concerns and whether it would lead to a timely and sufficient entry.

394    The second part of the plea is therefore ineffective.

395    In any event, the second part of the plea is unfounded.

396    In the first place, the existence of the symbiotic relationship was shown, in particular, by the responses to the first phase of the market investigation, as is apparent from recital 1364 and footnote 1173 of the contested decision. The applicant has failed to demonstrate that such a relationship is not apparent from those responses or to validly contest those responses, and merely refers, without any specific evidence, to examples to the contrary and, in particular, to the fact that the parties to the concentration offer equity index derivatives without offering all of the individual equities that comprise the index. The fact that Liffe’s derivatives market in the United Kingdom is disconnected from the underlying cash markets cannot call into question the Commission’s assessments based on the market investigation. In addition, the existence of the symbiotic relationship between equity index derivatives and single equity derivatives is also apparent, as follows from recital 829 of that decision, from an NYSE Euronext internal document, which states that the listed equity derivatives war in Europe is fought between NYSE Euronext and Eurex, with the latter having a bigger market share due in part to the gravitational effect of Eurex’s giant EURO STOXX index contract.

397    In the second place, as for the argument that the Commission did not take account of that symbiotic relationship in its competitive assessment, the applicant does not state to what extent that assessment should have been so. In any event, it follows from recital 958 of the contested decision that the relationship at issue was seen as a barrier to entry in single stock derivatives.

398    In the third place, it is apparent from the documents before the Court that, contrary to what the applicant claims, the issue of the relationship in question was raised before the parties to the concentration during the administrative procedure, at a meeting of 6 December 2011, which the applicant does not dispute. Therefore, even though that aspect was not referred to in the statement of objections, the fact remains that the applicant had the opportunity to adopt a position on the matter, with the result that its right to be heard was not infringed.

399    Lastly, as regards the complaint, submitted in the reply, that the assessment, in the contested decision, of the divestment commitment is based on flawed and contradictory evidence, it must be stated that it was not raised, as such, in the application. In addition, it concerns the factors taken into account in the assessment of the viability and attractiveness of the divestment commitment, which is a separate issue from those referred to in the application, within the context of the first and second parts of this plea, which concern the assessments made in the Commission’s examination of the scope of that commitment. Since it is not based on matters of law or of fact which came to light in the course of the procedure, that complaint must therefore be rejected as inadmissible. In any event, for the reasons set out by the Commission in the rejoinder, that complaint must be rejected as unfounded. First, the fact that the Commission relied on an anonymous response does not call into question the relevance of the other elements on which it relied, and the applicant has not demonstrated, moreover, that the conclusions drawn from the market investigation would have been different if that anonymous response had been omitted. Secondly, the applicant has not validly substantiated its claim that that decision is to a large extent based on the responses of competitors who have ‘a natural interest in the prohibition of the merger’. Thirdly, the arguments relating to the defective nature of the Commission’s position concerning the attractiveness of the divestment commitment must be rejected, since, contrary to what the applicant implies, [confidential] and [confidential] were consulted on the December 2011 version of that commitment; on that occasion, they did not express an unconditional interest in that commitment. In addition, as is apparent from recital 1432 of that decision, [confidential] and [confidential] did not express an interest. Fourthly, concerning the fact that that decision did not evaluate the credibility of the non-binding offer by [confidential], it is sufficient to note that, as is apparent from recital 1463 of the decision at issue, (i) [confidential] had received questionnaires market testing the commitments, to which it did not reply, despite reminders, which is not disputed by the applicant, and (ii) even if [confidential] had been genuinely interested in acquiring the divestment business, there would still remain issues as to the viability and the workability of the commitment.

400    The second part of the plea must therefore be rejected.

 The third part, alleging that the Commission’s rejection of the ITPA commitment undermines its definition of the relevant market and its efficiency gains assessment

401    The applicant submits that the arguments put forward by the Commission to reject the ITPA commitment are unfounded. First, it submits that, if the Commission were correct in arguing that the correlation between the contracts, used to implement that commitment, varies over time and is therefore unreliable for determining whether a product is a close competitive substitute, it would follow that its argument that LTIR derivatives and STIR derivatives are competitive constraints on each other, because they are correlated, is incorrect. Secondly, the Commission’s argument that the ITPA commitment reinforces the margin pool of the parties to the concentration is incompatible with the information provided by competitors and on which the Commission relied, according to which they need access to that margin pool in order to compete.

402    It must be held, at the outset, that this part of the plea must also be rejected as ineffective, since the arguments put forward by the applicant in support of it do not call into question the Commission’s rejection of the ITPA commitment.

403    The arguments which the applicant contests were put forward by the Commission within the context of its conclusion that the December commitments did not address the competition concerns. However, like the other commitments, the ITPA commitment was also rejected, first, within the context of the Commission’s conclusion that the scope of the December commitments was insufficient, as follows, in essence, from recitals 1446 and 1449 of the contested decision, secondly, within the context of the conclusion that those commitments do not allow a sufficient and timely entry, as is apparent, in essence, from recital 1464 of that decision, and, thirdly, within the context of the conclusion that those commitments would be difficult to implement and to control, as is stated in recitals 1469 to 1471 of that decision.

404    It follows, in essence, from recitals 1446, 1449, 1464 and 1469 to 1471 of the contested decision that the Commission found (i) that the ITPA commitment was insufficient in scope, (ii) that, since its effect is not equivalent to a divestiture, it would be insufficient and could not be accepted, (iii) that there were significant doubts on its effectiveness and (iv) that it was complex in nature and would require monitoring that would be difficult to put in place using the tools provided for by the merger control rules. Those considerations have not been contested by the applicant.

405    Therefore, even if the arguments put forward by the applicant within the context of this part of the plea were well founded, they cannot call into question the Commission’s rejection of the ITPA commitment.

406    In any event, those arguments are unfounded.

407    In the first place, as regards the argument relating to correlation, it should be noted that the applicant has failed to adduce any evidence to challenge the assessment, set out in recital 1453 of the contested decision, that that correlation does not constitute a tool that is best adapted as it does not allow establishing in advance of any request for access, with a sufficient degree of certainty, which contracts are eligible for the commitment at issue, given that its calculation depends heavily on data held by the parties to the concentration and that the degree of correlation between two contracts can change significantly over time. Next, it must be noted that, as is apparent in particular from recitals 419 and 814 of that decision, the Commission left open the question whether the interest rate derivatives market had to be divided between STIR derivatives and LTIR derivatives and that, although, as is apparent from recital 414 of that decision, a trader stated at the hearing that those derivatives could be substitutable, the Commission did not expressly find that LTIR derivatives and STIR derivatives were constraints on each other because of their correlation, contrary to what the applicant implies. The argument relating to correlation must therefore be rejected.

408    In the second place, it must be noted that the applicant does not contest as such the assertion, in recital 1454 of the contested decision, that the ITPA commitment would reinforce the merged entity’s margin pool and its position as a dominant player in the area of derivatives trading and clearing in Europe, with the result that the December commitments would be unlikely to create an independent viable competitive force in the derivatives markets concerned in Europe that would be in a position to effectively constrain the merged entity in a similar fashion as the parties to the concentration constrained each other pre-merger. The applicant merely argues that that assertion is incompatible with the submissions that the competitors of those parties need access to that margin pool in order to compete. The applicant makes in that regard a pure assertion and has not produced any evidence to support its claim that the two assertions are incompatible.

409    In the third place, the complaint, in the reply, that, in order to examine the ITPA commitment, the Commission should have made use of evidence other than that stemming from the market investigation was not raised in the application and, since it is not based on matters of law or of fact which came to light in the course of the procedure, is therefore inadmissible. Moreover, the applicant has failed to indicate the qualitative or quantitative evidence on which the Commission should have relied.

410    It follows from all of the foregoing that the third part of the plea must be rejected.

 The fourth part, alleging that the Commission’s rejection of the licence commitment is vitiated by an error and contradicted by its conclusions regarding technological competition

411    The applicant claims that the fact that the Commission states that the parties to the concentration are each other’s main competitor and the only driver of innovation regarding trading systems technology contradicts its conclusion that equally suitable trading systems can be purchased from numerous other sources.

412    In the present case, it is apparent from recital 1455 of the contested decision that the Commission considered it unlikely that the licence commitment would make any significant contribution to resolving the competition issues in that decision, as such a licence was not identified by market participants as an actual barrier to entry into the market for trading and clearing of interest rate derivatives.

413    In that regard, it must be observed that, besides the fact that the applicant makes pure assertions, it does not contest the particulars referred to in recital 1455 of the contested decision, from which it is apparent that the grant of a licence does not constitute a barrier to entry and, secondly, that there is no reason to suppose that those considerations would be inconsistent with the finding that the parties to the concentration are the main drivers of innovation. The issue of competition through innovation is a separate issue from the grant of a licence in order to access existing technology.

414    It follows that the fourth part of the plea must be rejected, as must consequently the third plea.

3.     The application for a measure of organisation of procedure

415    As is apparent from paragraph 33 above, the applicant applied for a measure of organisation of procedure, pursuant to Article 64(4) of the Rules of Procedure, seeking an order that the Commission produce a document, namely a memorandum from the head of the unit responsible for competition matters at the Commission’s DG for Enterprise and Industry, which was drawn up in the context of the proposed merger and alluded to in a press article.

416    The applicant argues, inter alia, that that document is evidence which is relevant to show that the Commission made an error in the definition of the relevant product market and prejudged the outcome of the procedure.

417    In that regard, it has consistently been held that it is for the Court to appraise the usefulness of measures of organisation of procedure (Case C‑199/99 P Corus UK v Commission [2003] ECR I‑11177, paragraph 67; Case T‑1/90 Pérez-Mínguez Casariego v Commission [1991] ECR II‑143, paragraph 94; and Case T‑358/04 Neumann v OHIM (Form of a microphone head grill) [2007] ECR II‑3329, paragraph 66).

418    In the light of the case-file and in view of the applicant’s pleas, complaints and arguments, it is apparent that such measures are neither relevant nor necessary for the purpose of ruling in the present case. The document in question is an internal Commission document of a preparatory nature, since it was drawn up in the course of the procedure which led to the adoption of the contested decision. The lawfulness of that decision, in particular with regard to the definition of the relevant product market, must be assessed only in the light of the considerations which it sets out, and not in the light of previous preparatory documents. In addition, the applicant has not put forward, in the application, any express plea that the Commission prejudged the outcome of the procedure, which the requested document is allegedly able to substantiate.

419    In any event, the Court has been able to give a proper ruling on the basis of the forms of order sought, the pleas in law and the arguments put forward during the proceedings and in the light of the documents lodged by the parties.

420    It follows that the application for a measure of organisation of procedure must be rejected.

421    It follows from all the foregoing that the action must be dismissed.

 Costs

422    Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay its own costs as well as the costs incurred by the Commission and by Icap, in accordance with the forms of order sought by them.

On those grounds,

THE GENERAL COURT (Third Chamber)

hereby:

1)      Dismisses the action;

2)      Orders Deutsche Börse AG to bear its own costs and to pay those incurred by the European Commission and by Icap Securities Ltd.

Papasavvas Forwood Bieliūnas

Delivered in open court in Luxembourg on 9 March 2015.

[Signature]

Table of contents

Background to the dispute

1.  Parties to the concentration

2.  Administrative procedure

3.  Contested decision

Procedure

Forms of order sought

Law

1.  Effectiveness of the pleas of the action

2.  Substance

The first plea in law, alleging errors of law and assessment regarding the analysis of the available evidence

The first part, alleging that the Commission did not take sufficient account of the horizontal competitive constraints

–  The first complaint

–  The second complaint

–  The third complaint

–  The fourth complaint

The second part, alleging that the Commission did not examine demand-related constraints sufficiently

–  The first complaint

–  The second complaint

–  The third complaint

–  The fourth complaint

–  The fifth complaint

The second plea in law, alleging errors of law and of assessment regarding the efficiency gains

The first part, concerning the communication of evidence regarding efficiency gains

The second part, concerning collateral savings

–  The first complaint

–  The second complaint

–  The third complaint

–  The fourth complaint

–  The fifth complaint

The third part, concerning effects on liquidity

–  The first complaint

–  The second complaint

–  The third complaint

–  The fourth complaint

–  The fifth complaint

–  The sixth complaint

–  The seventh complaint

–  The eighth complaint

The fourth part, concerning IT and infrastructure cost savings

The third plea in law, alleging errors of law and assessment regarding the commitments

The first part, alleging that the rejection of the divestment commitment is based on incorrect evidence

The second part, alleging that the existence of a symbiotic relationship between single equity derivatives and equity index derivatives is contradicted by the Commission’s definition of the relevant market

The third part, alleging that the Commission’s rejection of the ITPA commitment undermines its definition of the relevant market and its efficiency gains assessment

The fourth part, alleging that the Commission’s rejection of the licence commitment is vitiated by an error and contradicted by its conclusions regarding technological competition

3.  The application for a measure of organisation of procedure

Costs

* Language of the case: English.

1 – Confidential information omitted.