Judgment of the General Court (Third Chamber) of 27 January 2021.KPN BV v European Commission.Competition – Concentrations – Netherlands market for television services and telecommunications services – Decision declaring the concentration compatible with the internal market and the EEA Agreement – Relevant market – Vertical effects – Manifest error of assessment – Obligation to state reasons.Case T-691/18.

Judgment // 27/01/2021 // 2 min read
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Judgment of the General Court (Third Chamber) of 27 January 2021 –KPN v Commission

(Case T‑691/18)

(Competition – Concentrations – Netherlands market for television services and telecommunications services – Decision declaring the concentration compatible with the internal market and the EEA Agreement – Relevant market – Vertical effects – Manifest error of assessment – Obligation to state reasons)

  1. Concentrations between undertakings – Examination by the Commission – Definition of the market in question – Criteria – Substitutability of products – Demand-side substitutability – Assessment of demand substitution of two premium pay TV sports channels

(Council Regulation No 139/2004; Commission Regulation No 802/2004, Annex I; Commission Notice 97/C 372/03, paragraphs 15 and 17)

(see paras 63, 67-70, 74-81, 84)

  1. Concentrations between undertakings – Examination by the Commission – Economic assessments – Discretion – Judicial review – Scope – Limits

(Art. 256 TFEU; Council Regulation No 139/2004, Arts 2 and 8)

(see paras 64-66, 105-107)

  1. Concentrations between undertakings – Assessment of the compatibility with the internal market – Examination by the Commission – Assessment of anticompetitive effects – Vertical effects – Assessment of the likelihood of an anticompetitive foreclosure scenario – Criteria – Ability to foreclose access to inputs substantially – Significant degree of market power in the upstream market – None – Negative impact on the downstream market – Absence

(Council Regulation No 139/2004, Arts 2 and 8; Commission Regulation No 330/2010, Art. 2; Commission Notice 2008/C 265/07, paragraphs 20, 31, 32 and 35)

(see paras 108-112, 116-121, 125-131, 134-136, 138, 139, 143-144, 149-151)

  1. Acts of the institutions – Statement of reasons – Obligation – Scope – Decision to apply rules on concentrations between undertakings – Decision authorising a concentration operation

(Art. 296 TFEU; Council Regulation No 139/2004)

(see paras 161-163)

  1. Action for annulment – Pleas in law – Lack of or inadequate statement of reasons – Separate plea in law from the one concerning substantive legality

(Arts 263 and 296 TFEU)

(see para. 164)

Re:

Application pursuant to Article 263 TFEU for annulment of Commission Decision C(2018) 3569 final of 30 May 2018 declaring the concentration involving the acquisition by Liberty Global of sole control over Ziggo NV to be compatible with the internal market and the Agreement on the European Economic Area (EEA) (Case COMP/M.7000 – Liberty Global/Ziggo).

Operative part

The Court:

  1. Dismisses the action;

  2. Orders KPN BV to pay the costs.

Competition