JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber, Extended Composition)
20 November 2002 (1) (Competition - Regulation (EEC) No 4064/89 - Amendment of a decision declaring a concentration compatible with the common market - Restrictions directly related to and necessary to the implementation of the concentration (ancillary restrictions) - Action for annulment - Admissibility - Actionable measures - Interest in bringing proceedings - Legal certainty - Legitimate expectations - Statement of reasons)
In Case T-251/00,
Lagardère SCA, established in Paris (France), represented by A. Winckler, avocat, with an address for service in Luxembourg,
Canal+ SA, established in Paris (France), represented by J.-P. de la Laurencie and P.-M. Louis, avocats, with an address for service in Luxembourg,
applicants,
v
Commission of the European Communities, represented by W. Wils and F. Lelièvre, acting as Agents, with an address for service in Luxembourg,
defendant,
APPLICATION for the annulment of the Commission decision of 10 July 2000 amending the Commission decision of 22 June 2000 declaring concentrations compatible with the common market and the functioning of the Agreement on the European Economic Area (Cases COMP/JV40 - Canal+/Lagardère and COMP/JV47 - Canal+/Lagardère/Liberty Media),
THE COURT OF FIRST INSTANCE
OF THE EUROPEAN COMMUNITIES (Third Chamber, Extended Composition),
composed of: M. Jaeger, President, R. García-Valdecasas, K. Lenaerts, P. Lindh and J. Azizi, Judges,
Registrar: J. Palacio González, Administrator,
having regard to the written procedure and further to the hearing on 9 July 2002,
gives the following
Judgment
Legal and factual background
1.
Article 6(1) of Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings (OJ 1989 L 395, p. 1, as rectified, OJ 1990 L 257, p. 13, and as amended by Council Regulation (EC) No 1310/97 of 30 June 1997, OJ 1997 L 180, p. 1, Regulation No 4064/89) provides as follows:
The Commission shall examine the notification as soon as it is received.
...
(b) Where it finds that the concentration notified, although falling within the scope of this Regulation, does not raise serious doubts as to its compatibility with the common market, it shall decide not to oppose it and shall declare that it is compatible with the common market.
The decision declaring the concentration compatible shall also cover restrictions directly related and necessary to the implementation of the concentration.
...
2.
Article 3(1) of Council Regulation (EEC) No 447/98 of 1 March 1998 on the notifications, time-limits and hearings provided for in Council Regulation (EEC) No 4064/89 on the control of concentrations between undertakings (OJ 1998 L 61, p. 1), adopted on the basis of the first paragraph of Article 23 of Regulation No 4064/89, provides that notifications [of concentrations] shall contain the information, including documents, requested by form CO, a model of which is shown in the annex to Regulation No 447/98. In point 11.1 of form CO it is stated that if the parties to the concentration, and/or other involved parties ... enter into ancillary restrictions directly related and necessary to the implementation of the concentration, these restrictions may be assessed in conjunction with the concentration itself. In this context, the parties to the concentration are asked to identify each ancillary restriction in the agreements provided with the notification for which [they] request an assessment in conjunction with the concentration and to explain why these [restrictions] are directly related and necessary to the implementation of the concentration.
3.
In a notice dated 14 August 1990 on restrictions ancillary to concentrations (OJ 1990 C 203, p. 5, the notice on ancillary restrictions), the Commission gave some guidance on how it interpreted restrictions directly related and necessary to the implementation of the concentration within the meaning of the second subparagraph of Article 6(1)(b) of Regulation No 4064/89.
4.
On 16 May 2000 Lagardère SCA (Lagardère), Canal+ SA (Canal+) and Liberty Media Corporation (Liberty) gave notice of two concentrations, one involving the acquisition by Lagardère of joint control, with Canal+ and Liberty, of the company Multithématiques and the formation of ordinary partnerships with equal shares between Lagardère and Multithématiques with a view to the common production of special-interest channels, and the other involving the acquisition by Lagardère of joint control, with Canal+, of CanalSatellite and the formation of two joint ventures between Lagardère and Canal+ for the production of special-interest channels (JV 1) and of interactive services (JV 2) respectively.
5.
In addition, referring to Article 3(1) of Regulation No 447/98 and point 11.1 of form CO, the parties to the concentration gave notice of several contractual clauses which, according to them, were to be regarded as restrictions directly related and necessary to the implementation of the concentrations within the meaning of Article 6(1)(b) of Regulation No 4064/89 (the ancillary restrictions).
6.
On 22 June 2000, pursuant to the decision-making procedure by authorisation, Ms Schreyer, a member of the Commission, adopted the Commission decision concerning the notified concentrations (the decision of 22 June 2000). The parties to the concentration were notified of the decision on the same day. The operative part of the decision is worded as follows:
For the reasons set out above, the Commission has decided not to oppose [the notified concentrations] and to declare them compatible with the common market and with the EEA Treaty. This decision is taken on the basis of Article 6(1)(b) of [Regulation No 4064/89].
7.
It is common ground that the decision of 22 June 2000 was made on the last day of the period referred to in Article 10(1) of Regulation No 4064/89 in conjunction with Article 6(4), Article 7(4) and (8) and Articles 8 and 23 of Regulation No 447/98 (the period referred to in Article 10(1) of Regulation No 4064/89).
8.
In paragraphs 54 to 66 of the grounds of the decision of 22 June 2000 the Commission comments on the various contractual clauses notified by the parties to the concentration as being directly related and necessary to the implementation of the concentrations. The Commission accepts certain clauses as being ancillary to the implementation of the concentrations for the entire period indicated in the notification (priority clauses for the planning and development of a special-interest channel and an interactive television service). Other clauses are deemed to be ancillary, but for a shorter duration than that indicated in the notification (non-competition clause relating to distribution by satellite of a number of services and a clause prohibiting the development of a similar project). The other clauses of which the parties gave notice are classified as restrictions not ancillary to the concentration.
9.
On 7 July 2000 the parties to the concentration learnt, informally and by chance, that the Commission was preparing a new decision concerning the notified concentrations.
10.
On 10 July 2000 the Commission notified the parties to the concentration of its decision amending the decision of 22 June 2000 (the decision of 10 July 2000 or the contested decision). The introductory part of the decision, signed by Mr Monti, a Commission member, states as follows:
As a result of a handling error, the text of the decision of 22 June 2000 ... which was signed and notified to you was incorrect. Consequently the Commission has decided to make certain textual amendments to it.
11.
The contested decision consists of, first, a list of words to be replaced in the grounds of the decision of 22 June 2000 and, secondly, the complete text amending paragraphs 58 to 67 of the grounds of the said decision concerning the assessment of the restrictions notified as being directly related and necessary to the implementation of the concentrations. It appears from the decision of 10 July 2000 that, with the exception of one of the priority clauses (see paragraph 8 above) which is still recognised as ancillary, but for a shorter period than that indicated in the notification, all the restrictions described in the notification of the concentrations are deemed to be not ancillary to the concentrations. On the other hand, the operative part of the decision of 22 June 2000 was not amended.
12.
On 13 July 2000 the legal advisers of Lagardère and Canal+ sent a letter to Mr Monti informing him of their position with regard to the decision of 10 July 2000. In particular, the letter states:
Legally, the Commission's new text dated 10 July 2000 can have no consequences for the notifying parties because the period referred to in Article 10 of Regulation No 4064/89 expired long ago. This act is therefore non-existent. The Commission's decision which we received on 22 June 2000 is and remains the only one validly taken on the basis of our notification of 16 May 2000.
13.
They also informed the Commission in the same letter that the parties to the concentration had already begun to implement some of the agreements on the basis of the decision of 22 June 2000. Finally, they asked the Commission to revoke the decision of 10 July 2000.
14.
On 17 July 2000 Lagardère and Canal+ sent the Commission, at its request, a draft of the non-confidential version of the decision of 22 June 2000 with a view to publication.
15.
On 27 July 2000 there was a meeting between the responsible services of the Commission and the legal advisers of Lagardère and Canal+. The Commission services stated that it had been necessary to rectify the error in the interest of consistency with Commission decision 1999/242/EC of 3...
