Cementbouw Handel & Industrie BV v Commission of the European Communities.

• Jurisdiction: European Union
• Celex Number: 62002TJ0282
• ECLI: ECLI:EU:T:2006:64
• Court: General Court (European Union)
• Docket Number: T-282/02
• Date: 23 February 2006
• Procedure Type: Recurso de anulación - infundado

Case T-282/02

Cementbouw Handel & Industrie BV

v

Commission of the European Communities

(Competition – Control of concentration of undertakings – Articles 2, 3 and 8 of Regulation (EEC) No 4064/89 − Concept of concentration – Creation of a dominant position − Authorisation subject to compliance with certain commitments – Principle of proportionality)

Summary of the Judgment

1. Competition – Concentrations – Concept

(Council Regulation No 4064/89, Art. 3; Commission Notice 98/C 66/02, point 19)

2. Competition – Concentrations – Concept

(Council Regulation No 4064/89, Art. 3(2))

3. Competition – Concentrations – Acquisition of indirect joint control of a joint undertaking

(Council Regulation No 4064/89, Arts 3(1)(b) and (4)(b))

4. Community law – Principles – Protection of legitimate expectations – Conditions

5. Competition – Concentrations – Concept

(Council Regulation No 4064/89, Art. 3)

6. Competition – Concentrations – Existence – Concentration coming within the exclusive competence of the Commission – Conditions

(Council Regulation No 4064/89, Art. 3)

7. Competition – Concentrations – Concentration having a Community dimension – Criteria for assessment

(Council Regulation No 4064/89, Arts 1 and 5)

8. Competition – Concentrations – Examination by the Commission

(Council Regulation No 4064/89, Art. 6)

9. Competition – Concentrations – Concentration resulting from a number of legal transactions having a unitary nature on account of their interdependence

(Council Regulation No 4064/89)

10. Competition – Concentrations – Assessment of compatibility with the common market – Creation or strengthening of a dominant position

(Council Regulation No 4064/89, Arts 2(2) and 3)

11. Competition – Concentrations – Examination by the Commission – Economic assessments

(Council Regulation No 4064/89, Art. 2)

12. Competition – Dominant position – Existence – Barriers to market entry

(Art. 82 EC)

13. Competition – Dominant position – Existence – Relevance of the purchasing power of customers vis-à-vis the supplier

(Art. 82 EC)

14. Competition – Concentrations – Assessment of compatibility with the common market – Creation or strengthening of a dominant position

(Council Regulation No 4064/89)

15. Competition – Concentrations – Examination by the Commission – Commitments given by the undertakings concerned of such a kind as to render the notified transaction compatible with the common market

(Council Regulation No 4064/89, Arts 2(2) and 8(2))

1. It follows from Article 3 of Regulation No 4064/89 on the control of concentrations between undertakings, entitled ‘Definition of concentration’, that a concentration is deemed to arise, in particular, where control of one or more undertakings is acquired either by an undertaking acting on its own or by two or more undertakings acting jointly, on the understanding that, no matter what form it assumes, the taking of control, having regard to the particular circumstances of fact and of law in each case, must confer the possibility of exercising decisive influence on the activity of the acquired undertaking as a consequence of rights, contracts or any other means.

In accordance with paragraph 19 of the Commission Notice on the concept of concentration within the meaning of Regulation No 4064/89, joint control exists where two or more undertakings or persons have the possibility of exercising decisive influence over another undertaking, that is to say, the power to block actions which determine the strategic commercial behaviour of an undertaking. Thus, joint control may result in a deadlock situation owing to the power of two or more undertakings to reject proposed strategic decisions. Those shareholders must therefore reach understanding in determining the commercial policy of the joint venture.

While decisive influence, within the meaning of Article 3(3) of Regulation No 4064/89, need not necessarily be exercised in order to exist, the existence of control within the meaning of Article 3 of that regulation requires that the possibility of exercising that influence be effective.

(see paras 41-42, 58)

2. The fact that a joint undertaking may be a full-function undertaking and therefore economically autonomous from an operational viewpoint does not mean that it enjoys autonomy as regards the adoption of its strategic decisions. The opposite conclusion would lead to a situation in which there would never be joint control of a ‘joint undertaking’ as soon as it was economically autonomous. The condition in Article 3(2) of Regulation No 4064/89 on the control of concentrations between undertakings that must be satisfied in order for the creation of a joint undertaking, that is to say one controlled by two or more undertakings, to be considered to constitute a concentration, namely that the joint undertaking must ‘[perform] on a lasting basis all the functions of an autonomous economic entity’, proves that that is not the case.

(see para. 62)

3. Article 3(1)(b) of Regulation No 4064/89 on the control of concentrations between undertakings states that control may be acquired ‘direct[ly] or indirect[ly]’ by one or more persons, and Article 3(4)(b) of that regulation accepts that those having control may also be persons who, while not being holders of rights or entitled to rights under contracts, have the power to exercise the rights deriving therefrom.

The shareholders of the members of a joint undertaking may acquire indirect control within the meaning of Article 3 even where they are not direct holders of voting rights in the general assembly of that undertaking, which are exercised by the members themselves.

Provided that commercial companies comply in any event with the decisions of their exclusive shareholders, their majority shareholders or those jointly controlling the company, it necessarily follows that, where the member companies of the joint undertaking are all subsidiaries held either exclusively or jointly by two shareholders, an appointment to the joint undertaking’s decision-making bodies presumes the agreement of the two shareholders. Otherwise, the members will be unable to appoint the joint undertaking’s decision-making bodies and the joint undertaking will be incapable of functioning.

The fact that representatives of the parent companies are not entitled to sit on the joint undertaking’s managing board or that they are able to represent only a minority within its supervisory board does not alter the fact that it is the members of that undertaking that decide on the composition of the decision-making bodies and, through the intermediary of those members, their two shareholders.

Furthermore, as regards the composition of the joint undertaking’s two decision-making bodies, although its articles do not preclude that all the persons sitting on those bodies will themselves carry out functions within the decision-making bodies of the member undertakings of the joint undertaking, it is inevitable that those representatives will have been appointed by the shareholders of the members of the joint undertaking and that, in performing their functions within the joint undertaking’s decision-making bodies, they will have to take those shareholders’ views into account.

(see paras 72-74)

4. Three conditions must be satisfied in order to claim entitlement to the protection of legitimate expectations. First, precise, unconditional and consistent assurances originating from authorised and reliable sources must have been given to the person concerned by the Community authorities. Second, those assurances must be such as to give rise to a legitimate expectation on the part of the person to whom they are addressed. Third, the assurances given must comply with the applicable rules.

(see para. 77)

5. Whereas Article 3(1)(a) of Regulation No 4064/89 on the control of concentrations between undertakings treats as a concentration a relatively simple and identifiable phenomenon – that of a merger between two or more previously independent undertakings –, Article 3(1)(b) is intended to cover all the other situations in which one or more undertakings acquire control of the whole or parts of one or more other undertakings. That general and teleological definition of a concentration – the result being control of one or more undertakings – implies that it makes no difference whether the direct or indirect acquisition of control was acquired in one, two or more stages by means of one, two or more transactions, provided that the end result constitutes a single concentration.

Nor does it matter whether, when they notify a concentration to the Commission, the parties propose to conclude two or more transactions or whether they have already concluded them before notifying them. It is for the Commission, in each case, to ascertain whether those transactions are unitary in nature, so that they constitute a single concentration for the purposes of Article 3 of Regulation No 4064/89.

Such an approach seeks to identify, in accordance with the circumstances of fact and of law specific to each case and with a concern to ascertain the economic reality underlying the transactions, the economic aim pursued by the parties, by examining, when faced with a number of legally distinct transactions, whether the undertakings concerned would have been inclined to conclude each transaction taken in isolation or whether, on the contrary, each transaction constitutes only an element of a more complex operation, without which it would not have been concluded by the parties. In other words, in order to determine the unitary nature of the transactions in question, it is necessary, in each individual case, to ascertain whether those transactions are interdependent, in such a way that one transaction would not have been carried out without the other.

That approach tends, on the one hand, to ensure that undertakings which notify a concentration...