Towercast v Autorité de la concurrence and Ministère de l’Économie.
| Jurisdiction | European Union |
| Court | Court of Justice (European Union) |
| ECLI | ECLI:EU:C:2023:207 |
| Docket Number | C-449/21 |
| Celex Number | 62021CJ0449 |
| Date | 16 March 2023 |
Provisional text
JUDGMENT OF THE COURT (Second Chamber)
16 March 2023 (*)
(Reference for a preliminary ruling – Competition – Control of concentrations between undertakings – Regulation (EC) No 139/2004 – Article 21(1) – Exclusive application of that regulation to operations covered by the concept of ‘concentration’ – Scope – Concentration operation which has no Community dimension, is below the thresholds for mandatory ex ante control laid down in the law of a Member State and has not been referred to the European Commission – Control of such an operation by the competition authorities of that Member State in the light of Article 102 TFEU – Whether permissible)
In Case C‑449/21,
REQUEST for a preliminary ruling under Article 267 TFEU from the cour d’appel de Paris (Court of Appeal, Paris, France), made by decision of 1 July 2021, received at the Court on 21 July 2021, in the proceedings
Towercast SASU
v
Autorité de la concurrence,
Ministre chargé de l’économie,
other parties:
Tivana Topco SA,
Tivana Midco SARL,
TDF Infrastructure Holding SAS,
TDF Infrastructure SAS,
Tivana France Holdings SAS,
THE COURT (Second Chamber),
composed of A. Prechal, President of the Chamber, M.L. Arastey Sahún, F. Biltgen, N. Wahl (Rapporteur) and J. Passer, Judges,
Advocate General: J. Kokott,
Registrar: A. Calot Escobar,
having regard to the written procedure and further to the hearing on 6 July 2022,
after considering the observations submitted on behalf of:
– Towercast SASU, by P. Mèle and D. Théophile, avocats,
– the Autorité de la concurrence, by E. Combe and J. Neto, acting as Agents, and by Y. Anselin, avocat,
– Tivana Midco SARL and Tivana Topco SA, by S. Hamon and M.‑C. Rameau, avocates,
– Tivana France Holdings SAS, TDF Infrastructure SAS and TDF Infrastructure Holding SAS, by H. Calvet, Y. Chevalier, A. Helfer, F. Salat-Baroux and Y. Trifounovitch, avocats,
– the French Government, by G. Bain, A.-L. Desjonquères and P. Dodeller, acting as Agents,
– the Italian Government, by G. Palmieri, acting as Agent, and by G. Aiello, avvocato dello Stato,
– the Netherlands Government, by M.K. Bulterman, P. Huurnink and C.S. Schillemans, acting as Agents,
– the European Commission, by T. Baumé, P. Berghe and F. Castillo de la Torre, acting as Agents,
after hearing the Opinion of the Advocate General at the sitting on 13 October 2022,
gives the following
Judgment
1 This request for a preliminary ruling concerns the interpretation of Article 21(1) of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (OJ 2004 L 24, p. 1).
2 The request has been made in proceedings between Towercast SASU, on the one hand, and the Autorité de la concurrence (Competition Authority, France) and the ministre chargé de l’économie (Minister for Economic Affairs, France), on the other, concerning a decision rejecting a complaint lodged by Towercast in respect of abuse of a dominant position.
Legal context
European Union law
3 Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings (OJ 1989 L 395, p. 1) entered into force on 21 September 1990. Under the sixth to eighth recitals of that regulation:
‘Whereas Articles 85 and 86 [of the EEC Treaty], while applicable, according to the case-law of the Court of Justice, to certain concentrations, are not, however, sufficient to cover all operations which may prove to be incompatible with the system of undistorted competition envisaged in the Treaty;
Whereas a new legal instrument should therefore be created in the form of a Regulation to permit effective monitoring of all concentrations from the point of view of their effect on the structure of competition in the [European Economic] Community and to be the only instrument applicable to such concentrations;
Whereas this Regulation should therefore be based not only on Article 87 [of the EEC Treaty] but, principally, on Article 235 of the [EEC] Treaty, under which the Community may give itself the additional powers of action necessary for the attainment of its objectives, and also with regard to concentrations on the markets for agricultural products listed in Annex II to the [EEC] Treaty’.
4 Article 22 of that regulation provided:
‘1. This Regulation alone shall apply to concentrations as defined in Article 3.
2. [EEC Council Regulation No 17 of 6 February 1962: First Regulation implementing Articles 85 and 86 of the [EEC] Treaty (OJ, English Special Edition 1959-1962, p. 87)], [Regulation (EEC) No 1017/68 of the Council of 19 July 1968 applying rules of competition to transport by rail, road and inland waterway (OJ, English Special Edition 1968 (I), p. 302)], [Council Regulation (EEC) No 4056/86 of 22 December 1986 laying down detailed rules for the application of Articles 85 and 86 of the [EEC] Treaty to maritime transport (OJ 1986 L 378, p. 4)] and [Council Regulation (EEC) No 3975/87 of 14 December 1987 laying down the procedure for the application of the rules on competition to undertakings in the air transport sector (OJ 1987 L 374, p. 1)] shall not apply to concentrations as defined in Article 3.
3. If the [European] Commission finds, at the request of a Member State, that a concentration as defined in Article 3 that has no Community dimension within the meaning of Article 1 creates or strengthens a dominant position as a result of which effective competition would be significantly impeded within the territory of the Member State concerned it may, in so far as the concentration affects trade between Member States, adopt the decisions provided for in Article 8(2), second subparagraph, (3) and (4).
…
5. Pursuant to paragraph 3 the Commission shall take only the measures strictly necessary to maintain or restore effective competition within the territory of the Member State at the request of which it intervenes.
…’
5 Without prejudice to the transitional provisions laid down in Article 26(2) thereof, Regulation No 139/2004 repealed and replaced Regulation No 4064/89 with effect from 1 May 2004.
6 Recitals 2, 5 to 9, 20 and 24 of Regulation No 139/2004 state:
‘(2) For the achievement of the aims of the [EC] Treaty, Article 3(1)(g) gives the [European] Community the objective of instituting a system ensuring that competition in the internal market is not distorted. …
…
(5) … it should be ensured that the process of reorganisation does not result in lasting damage to competition; Community law must therefore include provisions governing those concentrations which may significantly impede effective competition in the common market or in a substantial part of it.
(6) A specific legal instrument is therefore necessary to permit effective control of all concentrations in terms of their effect on the structure of competition in the Community and to be the only instrument applicable to such concentrations. [Regulation No 4064/89] has allowed a Community policy to develop in this field. In the light of experience, however, that Regulation should now be recast into legislation designed to meet the challenges of a more integrated market and the future enlargement of the European Union. In accordance with the principles of subsidiarity and of proportionality as set out in Article 5 [EC], this Regulation does not go beyond what is necessary in order to achieve the objective of ensuring that competition in the common market is not distorted, in accordance with the principle of an open market economy with free competition.
(7) Articles 81 and 82 [EC], while applicable, according to the case-law of the Court of Justice, to certain concentrations, are not sufficient to control all operations which may prove to be incompatible with the system of undistorted competition envisaged in the [EC] Treaty. This Regulation should therefore be based not only on Article 83 [EC] but, principally, on Article 308 [EC], under which the Community may give itself the additional powers of action necessary for the attainment of its objectives, and also powers of action with regard to concentrations on the markets for agricultural products listed in Annex I to the [EC] Treaty.
(8) The provisions to be adopted in this Regulation should apply to significant structural changes, the impact of which on the market goes beyond the national borders of any one Member State. Such concentrations should, as a general rule, be reviewed exclusively at Community level, in application of a “one-stop shop” system and in compliance with the principle of subsidiarity. …
(9) The scope of application of this Regulation should be defined according to the geographical area of activity of the undertakings concerned and be limited by quantitative thresholds in order to cover those concentrations which have a Community dimension. …
…
(20) It is expedient to define the concept of concentration in such a manner as to cover operations bringing about a lasting change in the control of the undertakings concerned and therefore in the structure of the market. It is therefore appropriate to include, within the scope of this Regulation, all joint ventures performing on a lasting basis all the functions of an autonomous economic entity. It is moreover appropriate to treat as a single concentration transactions that are closely connected in that they are linked by condition or take the form of a series of transactions in securities taking place within a reasonably short period of time.
…
(24) In order to ensure a system of undistorted competition in the common market, in furtherance of a policy conducted in accordance with the principle of an open market economy with free competition, this Regulation must permit effective control of all concentrations from the point of view of their effect on competition in the Community. Accordingly, [Regulation No 4064/89] established the principle that a concentration with a Community dimension which...
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