Judgment of the General Court (Sixth Chamber) of 13 September 2010 – Éditions Jacob v Commission
(Case T-279/04)
Competition – Concentrations – French-language publishing – Decision declaring the concentration compatible with the common market subject to sale of assets – Action for annulment brought by an unsuccessful prospective purchaser – Duty to state reasons – Fraud – Error of law – Manifest error of assessment – Regulation (EEC) No 4064/89
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Actions for annulment – Actionable measures – Concept – Measures producing binding legal effects – Preparatory measures – Not included – Commission decision to initiate in-depth examination of a concentration operation (Art. 230 EC; Council Regulation No 4064/89, Art. 6(1)(c)) (see para. 89)
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Competition – Concentrations – Assessment of compatibility with the common market – Nature of control, single or joint, exercised over an undertaking to be taken into account – Criteria for assessment – Holding of assets operation prior to authorisation of the concentration by the Commission – Possibility of exercising a determinant influence over the business connected with the assets – None – Acquisition of assets with a view to their resale (Council Regulation No 4064/89, Arts 3 and 4) (see paras 116-118, 125, 132, 138-140, 142, 144, 150, 153)
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Competition – Concentrations – Examination by the Commission – Operation carried out before being notified – Consequences – Possibility of the Commission declaring the operation incompatible with the common market – Possibility of the Commission revoking a decision declaring the concentration compatible – None – Failure to notify capable of being penalised by the imposition of a fine (Council Regulation No 4064/89, Arts 6 to 8 and 14) (see paras 156-161, 201-202)
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Competition – Concentrations – Notification – Obligation – Scope – Holding of assets operation not constituting a concentration – Not included (Council Regulation No 4064/89, Arts. 1(1), 4(1) and (7)(1)) (see paras 171, 231-232)
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Competition – Concentrations – Examination by the Commission – Revocation of a decision authorising a concentration operation – Criteria – Decision fraudulently obtained – Concentration operation classified as acquisition of shareholdings on a temporary basis – Requirement for demonstration that control acquired (Council Regulation No 4064/89, Arts 3(1)(b) and (5)(a) and 8(5)(a)) (see paras 191-194)
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Acts of the institutions – Statement of reasons – Obligation – Scope – Decision to apply rules on concentrations between undertakings – Decision authorising a concentration operation – Scope (Council Regulation No 4064/89, Art. 8(2)) (see paras 226-228, 233-234)
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Competition – Concentrations – Examination by the Commission – Economic assessments – Discretion – Judicial review – Limits (Council Regulation No 4064/89, Art. 2) (see paras 248-249)
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Competition – Concentrations – Assessment of compatibility with the common market – Creation or strengthening of a dominant position – Evidence – Modification of the initial position of the parties on the affected markets – Consequences of a sale of assets – Overall turnover figures of the parties to the operation – Not included (Council Regulation No 4064/89, Arts 2(3) and 8(3)) (see paras 284-286, 288)
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Competition – Concentrations – Examination by the Commission – Definition of the market in question – Criteria – Substitutability of products – Structure of supply and demand – Transversal effect of a concentration taken into account (Council Regulation No 4064/89) (see paras 302-306)
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Competition – Concentrations – Assessment of compatibility with the common market – Point in time to be taken into consideration – Point at which the operation notified – No obligation to take into consideration the risk of agreements restricting competition being concluded following the concentration (Council Regulation No 4064/89, Art. 2) (see paras 326-327, 338)
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Competition – Concentrations – Examination by the Commission – Commitments by the undertakings concerned to render the notified transaction compatible with the common market – Undertaking to sell assets – Selection criteria of the buyer – Current or potential competitor – Independence, financial resources and competences confirmed – Sale of assets to a financial buyer – Lawfulness (Council Regulation No 4064/89; Commission Communication on corrective measures admissible in accordance with Regulations Nos 4064/89 and 447/98, para. 49) (see paras 340-346)
Re:
APPLICATION for the annulment of Commission Decision 2004/422/EC of 7 January 2004 declaring a concentration to be incompatible with the common market and the functioning of the EEA Agreement (Case COMP/M.2978 – Lagardère/Natexis/VUP) (OJ 2004 L 125, p. 54).
Operative part
The Court:
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Dismisses the action;
Dismisses the action;
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Orders Éditions Odile Jacob SAS to bear its own costs and to pay the costs of the European Commission and Lagardère SCA.
Orders Éditions Odile Jacob SAS to bear its own costs and to pay the costs of the European Commission and Lagardère SCA.