C-480/93

OPINION OF MR LENZ — CASE C-480/93 P

OPINION OF ADVOCATE GENERAL LENZ delivered on 12 September 1995

A — Facts shareholder in Generali before it acquired the additional shares.

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voting rights and no mechanism intended to Commission had fundamentally misinter- ensure the success of proposals regarding the preted the facts concerning the extent of composition of the organs of Generali. Mediobanca's ability, by itself or in conjunc- tion with Lazard/Euralux, to control Gener- ali. In the appellants' view such a misappre- hension could be attributable only to the fact that the Commission had been incompletely or incorrectly informed regarding the terms of the agreement concluded between 4. On 19 March 1992 an Italian newspaper Mediobanca, Lazard and Generali and in published the complete text of that previ- particular its effects. ously secret agreement. The agreement, con- cluded between Mediobanca, Lazard Frères de Paris (the holding company of Euralux) and Generali, was signed on 26 June 1985. According to the findings of the Court of First Instance in its judgment of 28 October 1993, 3 against which the present appeal is directed, that agreement provides inter alia for the creation of a steering committee com- posed of representatives of Generali and its 6. In a letter of 31 July 1992 the Commis- two main shareholders which was intended sion's Director-General for Competition to discuss questions of general interest con- rejected that request. He stated in that letter cerning Generali and to influence the inter alia that the Commission's decision of appointment of certain members of the com- 19 December 1991 had in no way been based pany's administrative and senior manage- on incorrect information. The Commission ment bodies. 4 had, in fact, been aware of the agreement concluded in 1985 and had taken it into account when making its decision.

arguments. 5 First, the letter of 31 July to a person by a Community institution was 1992 was not a decision within the meaning not sufficient for that letter to be regarded as of Article 173 of the E C Treaty at all. In it a decision within the meaning of Article the Commission had, instead, merely 173 (paragraph 30). Moreover, an act informed the recipients of the factual and amounting to a rejection had to be appraised legal situation. Moreover, it had merely been in the light of the request to which it consti- a first, provisional opinion regarding the tuted a reply. In particular the refusal by a request submitted by the undertakings con- Community institution to withdraw or cerned. Secondly, the Commission argued amend a particular measure could constitute that the letter of 31 July 1992 was not of an act whose legality may be reviewed under direct and individual concern to the appel- Article 173 only if the measure which the lants and they therefore did not have the Community institution refuses to withdraw necessary locus standi under the second para- or amend could itself have been contested graph of Article 173 of the EC Treaty.6 under Article 173 (paragraph 31). In the Thirdly and finally, the Commission argued present case, the appellants had requested the in the alternative that the letter of 31 July Commission to revoke its decision of 1992 could not be challenged by an action 19 December 1991 and to adopt a new under Article 173 because it was at most a decision in the proceedings underlying the decision which merely confirmed the former decision. However, as regards those decision adopted on 19 December 1991. proceedings the appellants merely had the status of third parties, when compared with the undertakings directly involved in the operation. They would therefore have been entitled to make a request for the revocation of the decision of 19 December 1991 only if that decision had been of direct and individ- ual concern to them (paragraphs 32 to 34). 8. In its judgment of 28 October 1993 the Court of First Instance held that the action was inadmissible. The relevant findings are set out in paragraphs 29 to 40 of the judg- ment.

10. The appellants have appealed against that Secondly, it was necessary to have regard to judgment. They claim that the Court of Jus- the fact that the Commission's decision of tice should set aside the contested judgment, 19 December 1991 affected the appellants in reject the Commission's objection of inad- their capacity as shareholders and therefore missibility, remit the case to the Court of in the same way as any other of the approx- First Instance and order the Commission to imately 140 000 shareholders of that com- pay the costs of the appeal and of the pro- pany. In view of the fact that each of the ceedings before the Court of First Instance appellants' shareholdings in the capital of the concerning the objection of inadmissibility. company was less than 0.5% and the appel- The Commission contends that the Court lants had not proved in what respect their should dismiss the appeal and order the situation differed from that of any other appellants to pay the costs. shareholder as a result of the Commission's decision, the Court was obliged to find that the decision of 19 December 1991 was not of individual concern to the appellants (para- graph 36). B — Analysis

Finally, the Court found that the appellants had wrongly argued that in accordance with settled case-law in the areas of competition, Preliminary comment State aid and dumping they would have had a right of action to protect their legitimate interests, if they had sought to take part in the original proceedings (paragraph 37). Even on the assumption that that case-law could be applied to disputes involving the control of concentrations, requests to reopen 11. Before I discuss the problems to be dealt proceedings would have to be submitted with in the present case, I consider it advis- within a reasonable period (paragraph 38). able first to examine whether the Commis- However, that had not been the case here sion would in any event have been able to because the informal contact on 6 May grant the appellants' request to reopen the

proceedings and to revoke its decision of 13. Article 8(5)(a) provides that the Com- 19 December 1991. In order to do so, it is mission may revoke decisions adopted 'pur- necessary to consider the procedure under suant to paragraph 2' if those decisions are the Merger Regulation. based on 'incorrect information' for which one of the undertakings concerned is respon- sible or if the decision has been obtained by deceit. 8 Since the decisions provided for in Article 8(2) involve cases falling under Arti- cle 6(1 )(c), that is to say cases in which the Commission has serious doubts as to the compatibility with the common market of a concentration falling within the scope of the regulation, a literal interpretation of Article 8(5) would exclude the possibility of a revo- cation, if a decision under Article 6(l)(b) or 12. If the Commission receives a notification (as in this case) a decision under Article under the Merger Regulation, it may, under 6(l)(a) were involved. Article 6(1) of that regulation, essentially adopt one of three possible decisions. 7 If the Commission concludes that the notified con- centration does not fall within the scope of the regulation, it is to record that finding pursuant to Article 6(l)(a) of the regulation. O n the other hand, if it finds that the con- centration notified falls within the scope of the Merger Regulation, but does not raise serious doubts as to its compatibility with the common market, Anicie 6(1 )(b) of the regulation requires it to decide 'not to oppose it and [to] declare that it is compati- ble with the common market'. Finally, should the concentration notified raise seri- ous doubts in the abovementioned sense, Article 6(1 )(c) of the regulation provides that 14. However, the Commission has stated the Commission is to decide to initiate a that it shares the appellants' view that revo- proceeding. In those cases Article 8(1) pro- cation is possible in such cases. That view is vides that the proceeding shall be closed b y correct. The provision in Article 8(5) of the means of a decision as provided for under regulation is not to be regarded as a conclu- paragraphs 2 to 5 of that article. The Com- sive rule concerning the possibility of revok- mission can in particular declare the concen- ing Commission decisions in merger control tration compatible (Article 8(2)) or incom- proceedings. There is no reason why, for patible (Article 8(3)) with the common example, in the case of deliberate deceit, it market. should be possible for the Commission to

17. As I have already stated, in the contested judgment the Court of First Instance took the view that the appellants' request for the 15. It is self-evident that the Commission reopening of the proceedings had not been may act on its own initiative if it learns of submitted within a reasonable period. It can facts which justify revocation of a decision be assumed from the wording of the relevant adopted by it under the Merger Regulation. passage in the judgment that the Court of That follows implicitly from Anicie 8(5) of First Instance regarded that as a (further) the regulation itself. However, subject to cer- ground for holding the appellants' action to tain conditions, a right will have to be be inadmissible. That is not, however, granted to third parties to request the Com- expressly stated. N o r is it clear why the mission to reopen a proceeding, if such new Court considered that the possible delay in facts become apparent, and to seek a review the submission of the request should lead to by the Community judicature of a refusal by the inadmissibility of the action. The consid- the Commission to do so. What those condi- erations set out in paragraphs 38 and 39, tions are is the subject-matter of the present which are relevant here, are made in the con- proceedings. text of the statements made in the previous paragraphs, in which the Court discussed the question whether the appellants had the nec- essary locus standi under the fourth para- graph of Article 173 of the EC Treaty. The next paragraph, paragraph 40, begins with the statement that the Court accordingly takes the view that the appellants are not directly and individually concerned by the decision of 19 December 1991. That could 16. Let me now turn to the objections made indicate that the previous statements in para- by the appellants against the contested judg- graphs 38 and 39 also concerned the question ment. They concern, first, the findings of the of locus standi. Such an interpretation would Court of First Instance concerning the ques- not however make much sense, because it is tion of locus standi under Article 173 and, not apparent how it could be concluded secondly, the considerations which led the from any 'delay' in submitting the request

20. However, in its judgment the Court of First Instance did not examine whether the appellants had relied, as against the Commis- sion, on new facts which might possibly have led to the reopening of the procedure. It therefore seems that, regardless of whether or not that requirement was satisfied, the 19. That consideration — if I have correctly Court considered the action to be inadmissi- understood it — contains a kernel of truth. If ble purely on the basis of the 'delay' referred the period for challenging a decision has to. However, such an approach is not cor- rect. It should be evident as a matter of expired, a party cannot circumvent that bar course that in this context it is of no impor- on bringing proceedings by requesting the tance whether the request for reopening the Commission to reconsider its decision and proceedings was submitted before the period then contest the Commission's decision for contesting the original decision had rejecting that request by bringing an action expired. If, after adopting a decision, a fact is within a period of two months. If such a procedure were permissible, the rule in Arti- cle 173 concerning the period for bringing an action would indeed be deprived of any sig- 9 — On that question see point 50 below. nificance. However, such a result can be 10 — In that regard see point 51 below.

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The matter of chance anyway. If a request to period laid down in the fifth paragraph of reopen the proceedings is made to the Com- Article 173 applies to the bringing of actions. mission on the basis of that new fact and the It is not obvious why that period should also Commission rejects it because it does not be decisive as regards the submission to the consider that the circumstances drawn to its Commission of a request for the reopening attention justify that step, that decision has of proceedings. Applying that time-limit by its own separate subject-matter and may analogy to the latter case would, at most, be therefore — if the other requirements for conceivable if there were compelling legal bringing an action are satisfied — be con- grounds for doing so.

21. Furthermore, the view the Court of First adopted in its observations. As regards the Instance expressed in the passage in question first point, it should be noted that revocation seems to me to involve an error which is under Article 8(5) of the Merger Regulation probably caused by a confusion of different is possible if the decision is based on incor- concepts. The Court of First Instance, it rect information for which one of the under- seems, seeks to compare the two-month takings is 'responsible' or if that decision has period laid down by Article 173 with the been Obtained by deceit'. In such cases only period of nearly three months which lay those persons affected w h o are not open to between the date when the appellants criticism in that respect are worthy of pro- became aware of the allegedly new fact and tection. Whether the protection of those per- the submission to the Commission of the sons requires the application of an overall formal request for the reopening of the pro- time-limit of two months, calculated from

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OPINION OF MR LENZ — CASE C-480/93 P

23. That does not, however, mean that after the discovery of such new facts the persons 24. If the matter is looked at from that point affected could wait for as long as they of view, the appellants should not be open to wished before approaching the Commission criticism in that regard. If they had learned of the allegedly new fact only at the end of March or at the beginning of April 1992, some six weeks at most would have elapsed 12 — See Article 10(1) and (3) of the regulation. See also the spe- when they approached the Commission on cial periods referred to in Article 9. 13 — See Article 8(6) in conjunction with Article 8(3). 6 May 1992. That period of time is in no way

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14 — Case T-31/91 Solvay v Commission [1995] ECR 11-1821, Case T-32/91 Solvay v Commission [1995] ECR 11-1825 and Case T-37/91 Imperial Chemical Industries v Commission 15 — Judgment in Case T-31/91, paragraphs 34 to 35; judgment [1995] ECR 11-1901. in Case T-32/91, paragraphs 40 and 41.

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OPINION OF MR LENZ — CASE C-480/93 P

2 April 1992. Unlike Solvay, ICI had already the merits, that complaint is — in so far as taken part in the hearing of 10 December can be gleaned from the information avail- 1991. The Court held that since the case able — likely to be well founded, because it involved a 'highly controversial legal ques- is not apparent from the contested judgment tion', ICI had at least been able to await that the parties expressed any opinion on the delivery of the judgment in that case on question whether any such 'delay' could lead 27 February 1992. The period between the to the inadmissibility of the action. delivery of that judgment and the lodging of the pleading on 2 April 1992 was, in the Court's view, 'reasonable, since it was objec- tively necessary' for a careful examination of the issues raised. 16 27. However, that error of law can lead to the contested judgment being set aside only if the finding by the Court of First Instance that the action was inadmissible because of the absence of locus standi under Article 173 should also prove to be incorrect. As I will now proceed to demonstrate, that is not Although those decisions deal with problems the case. For that reason I do not need to go that differ from those in the present case, into the Commission's claim that the Court's they do show that when considering the findings concerning the question of the question of whether an act was performed alleged 'delay' were in any event only a sup- within a reasonable period the circumstances plementary consideration. of the individual case are decisive.

the question of whether the appellants were Court of First Instance misunderstood the directly and individually concerned. The case-law on challenging decisions by which judgment of the Court of Justice in the Eri- requests are rejected, the appellants are dania case 1 7 was not relevant and had indeed correct in stating that the cases cited already been superseded. The appellants by the Court all concerned situations in were directly concerned. As regards the which the measure whose amendment was question of individual concern, the Court sought was a regulation, so that the amend- ing measure could only be adopted as a regu- adopted, without any legal basis, an arbitrary lation. 18 Those decisions are therefore not threshold as regards the shareholding which directly relevant to the question to be a shareholder bringing an action must pos- answered in the present case. However, as sess. Furthermore, the appellants had consid- the Commission correctly states, the Court's erable shareholdings in Generali. Thirdly, the viewpoint is nevertheless apposite. If the Court wrongly failed to take into account measure by which the Commission rejects a the fact that the appellants would have been request for revocation or amendment of a entitled to take part in the proceedings after decision were alone considered relevant, it they had been reopened and to bring an would be easy to circumvent the require- action against a decision adopted in those ment of locus standi laid down in the fourth proceedings. In that context, the appellants paragraph of Article 173. According to the refer in particular to Article 18(4) of the appellants' view, it would, for example, be Merger Regulation under which natural and possible for any person, even one not legal persons 'showing a sufficient interest' involved in the events in question, w h o had are entitled, upon application, to put their read the relevant newspaper article to request views to the Commission. The appellants the Commission to reopen the proceedings claim that they satisfy that requirement, and then to bring an action against the Com- because they are significant shareholders in mission's decision rejecting that request and Generali and, furthermore, it was they who thereby indirectly to call into question the brought the relevant new fact to the atten- original decision. That cannot be correct. tion of the Commission.

appraised in the light of the nature of the considered it to be well founded. It means request to which it constitutes a reply'. 19 In only that in such a case the persons making the passage in Advocate General Gulmann's the request do not have the necessary locus Opinion in that case, to which the Court of standi under Article 173 in order to contest a First Instance referred in its judgment, he decision by the Commission rejecting their interpreted the earlier case-law as meaning request. that in such a case an action can be brought under Article 173 'in so far as the act which the Council or the Commission refuses to adopt could have been contested under that provision'. 20 Under that approach, the rele- vant question in the present case would be whether the appellants would have been in a position to contest the legal measure requested by them — that is to say the revo- cation of the original decision — but not whether they could have challenged the decision of 19 December 1991. However, only at first sight does that conflict with the 31. I shall now deal with the question view of the Court of First Instance. The whether the appellants were directly and Commission has correctly drawn attention individually concerned, as required by the to the fact that a person can logically be fourth paragraph of Article 173. As already affected b y a legal measure terminating or mentioned, the Court of First Instance refers amending a previous measure only if he has in that context to the judgment of the Court already been affected by the original measure of Justice in the Eridania case. That case (or if — which is undoubtedly not the case concerned three Commission decisions by here — the amending measure extends the which aid was granted to certain sugar facto- earlier measure to such an extent that that ries in Italy. The applicants were competitors person is now affected by it). If the appel- of the assisted undertakings from Italy. The lants were therefore not directly and individ- Court of Justice held that 'the mere fact that ually concerned by the decision of a measure may exercise an influence on the 19 December 1991, that also applies to a competitive relationships existing on the decision revoking or amending that decision market in question' cannot suffice 'to allow or, as in the present case, refusing to revoke any trader in any competitive relationship it. whatever with the addressee of the measure to be regarded as directly and individually concerned by that measure'. Only 'the exist- ence of specific circumstances' could enable an action to be brought under Article 173 in As the Commission has stated, that naturally such cases. 21 Since, in the view of the Court does not mean that it would have been pre- of Justice, the applicants had not succeeded cluded from granting such a request if it had in proving such specific circumstances the action was dismissed as inadmissible. 21

32. That case therefore did not concern the Now it is certainly correct that the Commis- question whether a Commission measure sion's decision holding that the acquisition relating to a particular undertaking was of of the additional shares in Generali by direct and individual concern to its share- Mediobanca did not fall within the scope of holders. O n that ground alone it is doubtful the Merger Regulation has not as such how far that judgment can be of relevance to affected the nature of the rights enjoyed by the present case. Whether the decision the appellants as a result of their sharehold- should also be regarded as having been ing in Generali. The appellants can, for superseded by the subsequent case-law of example, continue to exercise the voting the Court of Justice, as the appellants claim, rights associated with the shares and receive does not, however, need to be answered here. dividends due in respect of them.

directly and individually concerned by that is in the nature of things, there is, contrary measure. It also makes no difference whether to the view of the Court of First Instance, no the relevant decision is considered, as it was need for the appellants to adduce further evi- by the Court of First Instance, to be that of dence in that respect. Whether the appel- 19 December 1991 or (as the appellants con- lants' claim is well founded was not dis- tend) the decision which the Commission cussed by the Court of First Instance and would have adopted if the proceedings had would in any event have been a matter for been reopened. consideration in the course of its examina- tion of whether the action was well founded. In the context of an examination of the admissibility of the action, which is the subject-matter of these proceedings, I con- sider that it should be assumed that that claim is correct. The question whether the appellants were directly concerned might therefore, in the light of my comments

The Court found that the number of shareholders in Generali 23 — Judgment in Case T-83/92, cited above (footnote 3), para- graph 35; see point 9 above. amounted to approximately 140 000, none of

the appellants holding more than 0.5% of the organs of Generali is hardly sufficient in that 1Ą share capital of Generali. In the present respect. Moreover, the Commission stated — proceedings the parties have given their without being contradicted by the appellants detailed views concerning the extent of the on that point — that the minutes of the appellants' actual shareholding in Generali annual shareholders' meetings of Generali and the relationship between the size of for 1991 and 1992 did not indicate that the those shareholdings and those of other appellants' representatives had asked to shareholders. I will not deal with those argu­ address the meeting. That fact is certainly ments in any more detail, because they are not of such a nature as to support the appel­ irrelevant to a decision in the present pro­ lants' claim. O n the other hand, I do not ceedings. It is established that the appellants consider that any significance should be were minority shareholders in Generali and attached to the fact, emphasized by the therefore basically found themselves in the Commission, that the appellants made no same position as all other minority share­ comments during the proceedings which led holders in that company. The appellants have to the decision of 19 December 1991. The not been able t o demonstrate in what respect appellants' concerns resulted from the agree­ the Commission's decision 'affects them by ment concluded in 1985 between reason of certain attributes which are pecu­ Mediobanca, Lazard and Generali. Since the liar to them or by reason of circumstances in appellants claim to have become aware of which they are differentiated from all other that agreement only in 1992, they had no persons and by virtue of these factors distin­ reason to take part in those proceedings. O n guishes them individually just as in the case the other hand, in that context the appellants of the person addressed'. 2 5 are also unable to rely on the fact that it was they who brought the (allegedly) new fact to the attention of the Commission. If that were to be a sufficient ground for a person to be individually concerned, the uninvolved person mentioned earlier who happens to learn of that fact and then informs the Com­ mission, would also have to be regarded as being individually concerned. That cannot be correct.

paragraph of Article 173; their action was down in this regulation shall start again from thus inadmissible and the contested decision the date of the judgment.' of the Court of First Instance was therefore correct. That accordingly brings to an end discussion of the question of locus standi. However, since the present case is the first of its kind, I would like to add some comments of a more fundamental nature. I doubt, in particular, whether shareholders in the undertaking, of which control is (possibly) being acquired, have any right of action at all 38. When examining whether there is a right against decisions made under the Merger to bring an action under the fourth para- Regulation in which the Commission graph of Article 173, however, regard should approves a concentration or finds that the be had to the objective of the Merger Regu- lation. According to its recitals, that regu- regulation is not applicable to that concen- lation serves to protect competition and tration. forms part of the 'system ensuring that com- petition in the internal market is not dis- torted' which is required by Anicie 3(g) of the EC Treaty. 28 The appellants' contention that the fact that the Merger Regulation was adopted on the basis of Article 235 shows that it also has other purposes is not con- vincing. As the Commission's representative correctly stated at the hearing, the Merger Regulation was based on Article 235 only because a new legal instrument was to be created which -was, at the same time, intended to be the only instrument applica- ble to such concentrations. 29 The criteria for appraising concentrations listed in Article 2 of the Merger Regulation also show that its aim is to protect competition.

Commission the guardian of the interests of Clayton Act 3 2 provides that the Federal minority shareholders. It is not apparent State Governments and other plaintiffs who how a shareholder in an undertaking have suffered damage 'by reason of anything involved in merger control proceedings forbidden in the antitrust laws' can claim could have an interest in a Commission payment of a sum three times the amount of decision under the Merger Regulation which the damage. 3 3 § 16 of the Clayton Act 3 4 is relevant to competition. The present case provides that injunctive relief can be claimed clearly illustrates that. The appellants' rights, if there is a threat of such damage. When so •which they consider to have been affected by doing, private plaintiffs must in each case the operation in question, are their rights as demonstrate their locus standi. According to shareholders in Generali. The appellants the case-law, that requires in particular the seem to fear in particular that Mediobanca's plaintiff to have suffered an 'antitrust injury' acquisition of control, which they presume (or to be threatened by such injury). In its has taken place, means that their opportuni- decision in the Brunswick case 3 5 the ties for influencing the management of Gen- Supreme Court defined that as 'injury of the erali have been considerably reduced or type the antitrust laws were intended to pre- wholly excluded. However, the rules govern- vent and that flows from that which makes ing disputes arising out of distinctions defendants' acts unlawful'. 36 That case con- between the rights of shareholders as cerned an action brought by various bowling between themselves and their rights as centres for damages under § 4 of the Clayton against the undertaking in which they hold Act as a result of the takeover of certain shares is a matter of company law. 3 0 The bowling centres by a competitor. The plain- Merger Regulation was not created for that tiffs claimed that, without the takeover, the purpose. My view therefore tends to be that bowling centres acquired would have gone the shareholders in an undertaking should bankrupt and they would then have been in generally have no locus standi to bring a position to acquire at least some of the cus- actions against Commission decisions in the tomers of those centres. The Supreme Court area of merger control. 31 found that the plaintiffs' 'damage' was not the kind of damage which the antitrust rules

40. Under United States law an action based by the appellants on the possible acquisition of control of Generali by Mediobanca would The American courts have already been therefore apparently be inadmissible. In the required on several occasions to deal with present case, which is to be appraised in the actions by shareholders in an undertaking light of rules of Community law, the result alleging infringement of the antitrust laws to should be the same. Shareholders of an the detriment of that undertaking. The Cir- undertaking involved in merger control pro- cuit Court of Appeals, Third Circuit, had ceedings have no locus standi under the already dismissed such an action in 1910 in fourth paragraph of Article 173 as regards the Loeb case. 40 That decision was cited decisions adopted by the Commission under with approval by the Supreme Court in its the Merger Regulation. In my view, in such judgment in the Associated General Contrac- cases the shareholders are not individually tors case. 41 In a more recent judgment, an concerned. However, in the light of the appeal court concluded from this that share- decision in the Associated General Contrac- holders of an affected undertaking have no tors case, it might also be considered that locus standi: they are not directly concerned because the legal positions they have acquired are merely derivative.

'Merely derivative injuries claimed by employees, officers, stockholders, and credi- 41. Finally, it is necessary to consider the tors of an injured company do not constitute appellants' claim that they have locus standi as a result of the fact that, after the reopening of the proceedings which they had sought, they would have been entitled to take part in 37 — Brunswick Corp. v Pueblo Bowl-O-Mat, Inc., cited above (footnote 35), pp. 488 f. them. In that respect they rely in particular 38 — Cargill, Inc. v Monfort of Colorado, Inc, 479 U. S. 104 (1986). 39 — Cargill, Inc v Monfort of Colorado, Inc., cited above (foot- note 38), pp. 109 ft (in particular p. 113). 42 — Held by the Court of Appeals, Seventh Circuit, Southwest 40 — Loeb v Eastman Kodak Co., 183 F 704, 709. Suburban Board of Realtors, Inc. v Beverly Area Planning 41 — Cited above (footnote 36), p. 533. Association, 830 F 2d 1374, p. 1378.

44. It is common ground that the second sentence of Article 18(4) of the Merger Regulation is not a definitive list of those persons which the Commission must hear if they make an application. That is quite clear 42. According to the appellants, by virtue of simply from its wording ('especially'). Nev- that provision the Commission would have ertheless, on the basis of the view that I have had to hear them, if it had reopened the pro- expressed and already explained, 43 I doubt ceedings. Their participation in the proceed- whether a shareholder in an undertaking ings would then have given them the right to affected by a concentration has a 'sufficient contest the decision adopted at the end of interest' to be heard by the Commission in those proceedings. They claim that they the course of merger control proceedings. I must therefore be regarded as having locus tend to agree with the Commission that, at standi in the present proceedings as well. least as regards the present case, the question must be answered in the negative since the appellants had no significant shareholding in Generali. Moreover, even the appellants themselves acknowledge that the Commis- sion is not obliged to hear all those holding shares in such a company, but that it enjoys a 43. That line of argument initially gives the discretion in that respect. The Commission is impression that the appellants wished as it also correct in its view that the fact that the were — if I may allow myself to make this appellants informed it of the allegedly new comparison — to pull themselves out of the fact is irrelevant to the examination of the swamp by their own hair, as Baron von question whether a sufficient interest exists, Münchhausen claimed to have done. At first because any person whatsoever could have sight the Commission's argument that the appellants did not take part in the proceed- ings leading to the decision of 19 December 1991 and could therefore not bring an action 43 — See point 36 et seq. above.

brought that fact to the attention of the disadvantages for the applicant. If in those Commission. Finally, the Court of First judgments the Court of Justice and the Instance also left that question open and did Court of First Instance referred in particular not — as the appellants claim — implicitly to the fact that the right to institute proceed­ decide it in their favour. ings served to protect 'legitimate' interests, it clearly follows that purely external circum­ stances, in particular participation in the pro­ ceedings, are not by themselves sufficient for the applicant to be treated in the same man­ ner as an addressee: the applicant must also fall, as a protected person, within the sphere of application of the relevant competition rule. 4 6 That requirement has not been ful­ filled in the present case. As I have already stated, the purpose of the Merger Regulation is not to protect the interests of shareholders in an undertaking which is a party to a con­ centration. 45. However, even on the assumption that the appellants would have had to be heard on the basis of Article 18(4) of the Merger Regulation, it does not follow that they would have to be regarded as having locus standi in the present case. The mere fact that a person has been heard in administrative proceedings does not by itself give him a right to contest the decision adopted follow­ ing those proceedings. It does indeed follow 46. At the hearing before the Court of Jus­ from the consistent case-law of the Court of tice the appellants' representatives submitted Justice and the Court of First Instance on that the appellants' position could be com­ competition, dumping, subsidies and State pared to that of the employees' representa­ aid that persons to whom a regulation or the tives referred to in Article 18(4) of the regu­ EC Treaty itself grants a right to take part in lation. That comment was probably inspired an administrative proceeding have a right to by the two judgments delivered by the institute proceedings 'in order to protect Court of First Instance on 27 April their legitimate interests'. 4 4 However, in all 1995 which involved actions brought by those cases the issue involved was — as I such employees' representatives. 4 7 The have already stated elsewhere — that other actions were dismissed in both cases. H o w ­ undertakings should not receive, create or ever, the Court took the view that the plain­ secure unjustified advantages under the com­ tiffs were individually concerned because petition rules which result in corresponding

47. In both of the abovementioned judg- ments the Court of First Instance held that the representatives of the employees must, however, at least have a right to ask the Court to review whether the Commission 50. Unlike the Commission, I do not take had respected their right to be heard. 49 That the view that the letter of 31 July is, however, of no relevance to the present 1992 merely constituted information. case for the simple reason that the Commis- Instead, the Commission stated in that letter sion noted the appellants' arguments and that it did not intend to grant the appellants' rejected them by letter of 31 July 1992. In n o request. In my view, that constitutes a event, therefore, was there an infringement decision within the meaning of the EC of the right to be heard. Treaty.

51. However, the Commission is correct in pointing out that that decision is not self- contained but merely confirms the decision of 19 December 1991. It is common ground 48. Accordingly, the appellants lacked the that the Commission was aware of the necessary locus standi. The appeal should 1985 agreement when it adopted its decision therefore be dismissed. of 19 December 1991. The appellants' request for the proceedings to be reopened is therefore based not on a fact which is — for 48 — Judgment in Case T-96/92, paragraphs 31 to 32; judgment the Commission — novel, but on a claim in Case T-12/93, paragraphs 41 to 42. that the Commission misinterpreted that 49 — Judgment in Case T-96/92, paragraph 46; judgment in Case agreement. The letter of 31 July 1992 makes T-12/93, paragraph 59.

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