C-170/02

(b) the aggregate Community-wide turn- over of each of at least two of the 2. Under Article 1(2) of Council Regulation undertakings concerned is more than (EEC) No 4064/89 of 21 December 1989 EUR 250 million,

1 — Original language: Dutch. 3 — OJ 1989 L 395, p. 1, corrected in OJ 1990 L 257, p. 13 and subsequently amended by Council Regulation (EC) 2 — Order of the Court of First Instance (Third Chamber) of No 1310/97 of 30 June 1997 amending Regulation (EEC) 11 March 2002 in Case T-3/02 Schlüsselverlag and Others v No 4064/89 on the control of concentrations between Commission [2002] ECR II-1473. undertakings (OJ 1997 L 180, p. 1).

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SCHLOSSELVERLAG J.S. MOSER AND OTHERS v COMMISSION

unless each of the undertakings concerned (b) Where it finds that the concentration achieves more than two-thirds of its aggre- notified, although falling within the gate Community-wide turnover within one scope of this regulation, does not raise and the same Member State.' 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.

3. Article 4(1) of Regulation No 4064/89 provides:

OPINION OF MR GEELHOED — CASE C-170/02 P

Court, Vienna) (Austria), which under disputed that view, the director of the Austrian competition legislation is the Merger Task Force stated, in a letter of competent authority in this matter, 3 September 2001, that his office did not approved the proposed takeover of Kurier- share that opinion of Schlüsselverlag and Magazine Verlags GmbH, belonging to Others and confirmed that the concen- Zeitschriften Verlagsbeteiligungs-Aktienge- tration did not have a Community dimen- sellschaft, by Verlagsgruppe News GmbH, sion. which is reputedly controlled by the Ber- telsmann group.

SCHLÜSSEL VERLAG J.S. MOSER AND OTHERS v COMMISSION

dimension, which was notified and such statement was made in the letter of approved at national level by the Ober- 7 November 2001, which was therefore to landesgericht Wien by judgment of be regarded as defining the position of the 26 January 2001, the Commission had Commission. failed to fulfil its obligations under the EC Treaty; in the alternative, declare that the Commission had failed to call upon the parties to the concentration to notify it thereof; and, finally, order the Commission to pay the costs. IV — Appeal

15. On 7 May 2002 an appeal was brought by Schlüsselverlag and Others. They claim 13. The Court of First Instance considered that the contested order should be set aside that there was sufficient information before and that the forms of order sought at first it and, pursuant to Article 111 of the Rules instance should be granted; in the alter- of Procedure, decided, without taking native, that the contested order should be further steps in the proceedings, to dismiss set aside and the case remitted to the Court the action as manifestly inadmissible. of First Instance; that the Commission should in any event be ordered to pay the costs.

First plea in law: incomplete finding of the 21. Second, this plea in law cannot be facts accepted in so far as Schlüsselverlag and Others seek to argue by it that the account of the facts is so incomplete as to preclude any judicial review of the legal findings of the Court of First Instance. It is abundantly 18. By the first plea in law, Schlüssel verlag clear from paragraphs 1 to 7 of the and Others submit that the Court of First contested order, read in conjunction with Instance based its findings on the Commis- paragraph 26, that the letters of 12 July and sion's statement that the letters of 12 July 3 September 2001, in contrast to the letter 2001 and 3 September 2001 expressed the of 7 November 2001, did in fact contain a view of the Directorate-General for Com- reservation in the sense that they expressed petition and were not binding on the only the opinion of the Directorate-General Commission, without including the content for Competition. The fact that those pas- of that statement in the account of the sages are not explicitly reproduced in the facts. summary of those earlier letters under the account of the facts makes no difference in that respect.

19. The Commission contends that that plea in law is inadmissible, or that it is unfounded, since the facts set out in the contested order are sufficient for the pur- pose of reviewing the legal findings of the Court of First Instance. Second plea in law: incorrect legal assess- ment of the letter from the director of the Merger Task Force of 7 November 2001

Assessment

24. The interpretation adopted by the Court of First Instance, to the effect that the letter of 7 November 2001 can be attributed to the Commission as an action- able measure since, in contrast to the two 27. In the first place, the action for failure previous letters, it does not state that it is to act should be declared inadmissible since not binding on the Commission, appears there is no legal basis for a decision arbitrary and offends against the principle constituting a rejection in response to a of good faith and therefore against general complaint. In that connection, the Com- principles of Community law. mission observes that, in contrast to the position under Regulation No 17 6 and Regulation No 2842/98 7 which is based on it, and in particular Article 6 thereof, Regulation No 4064/89 and Regulation No 447/98 8 do not provide for a com- plaints procedure. 9Moreover, a lengthy 25. They also point out that these proceed- complaints procedure would be at odds ings are not comparable with those which with the principal aim of the regulation, culminated in the judgment of the Court of which is to ensure effective monitoring and First Instance in Air France v Commis- legal certainty for the undertakings to sion, 4 in which a statement to the press by which the regulation applies. a spokesman of the Directorate-General for Competition was regarded as a decision in the name of the Commission. 5 — The Commission refers in this eonnection to the judgment in Case 247/87 Star Fruit [1989] ECU 291. 6 — OJ, English Special Edition 1959-1962, p. 87. 7 — Commission Regulation (EC) No 2842/98 of 22 December 1998 on the hearing of parties in certain proceedings under Articles 85 and 86 of the EC Trealy (OJ 1998 I. 354, p. 18). 8 — Commission Regulation (EC) No 447/98 of 1 March 1998 on the notifications, tune limits and hearings provided for m Council Regulation (EEC:) No 4064/89 on the control of 26. The Commission submits that the concentrations between undertakings (OJ 1998 1. 6 1 , p. 1). action for failure to act is inadmissible 9 — The Commission refers here to the judgment of the Court of First Instance in Clase T-290/94 Kayserberg v Commission [1997] ECR II-2137. In that judgment, it was held that there is no analogy between the rights of third parties in the context of Regulation No 4064/89 and those of complain- 4 — Case T-3/93 [1994] ECR II-121. ants m the context of Regulation No 17.

28. In the second place, the Commission Commission to review a national compe- observes that, even if the letter of 25 May tition authority's decision by means of a 2001 is construed as a request that it order (preparatory) decision requesting the the undertakings involved in the concen- parties to notify their transaction, the tration to notify it of their transaction and subsequent examination, and ultimately a that it then examine that transaction, the decision under Article 6(l)(a) of the regu- action for failure to act is inadmissible. In lation, would not alter their legal position. that connection, the Commission argues They have no right to have the decision that Regulation No 4064/89 does not concerning a concentration between third impose on it any obligation to comply with parties taken by one supervisory authority a request from a third party to enforce instead of by the other. That could not notification, then examine the transaction affect their legal position because it cannot notified and address a decision to the be assumed that one competition authority notifying parties under Article 6(1)(a) of applies stricter criteria than the other. the regulation, so that third parties would Moreover, the legal protection of third be able to challenge that decision in court. parties must be guaranteed in the first The Community legislature deliberately did instance by remedies at law against the not provide for such an obligation. First, decision of the national authority con- the adoption of a decision under cerned. The fact that certain judicial Article 6(1)(a) of Regulation No 4064/89 remedies are manifestly not available to presupposes prior notification by the them under national law cannot be decisive parties. Second, any notification at the in this context. 10 instigation of a third party which ulti- mately resulted in a decision under Article 6(1)(a) of Regulation No 4064/89 would fail to have regard to the 'one-stop shop' principle enshrined in that regulation, according to which there is a clear division of powers between the Commission and a national competition authority. Such notifi- cation could lead to parallel proceedings having to be conducted. The parties 30. Finally, the Commission observes that involved in the concentration would then the appellants only made their request to have legal certainty only after both the the Commission four months after the national and the Community proceedings substantive decision was taken by the were concluded. national authority. Assuming that they were aware of the national proceedings and only took action four months after they were notified that the national authority considered itself competent in the matter, their action must be regarded as belated, certainly in the context of control of concentrations.

33. On the one hand, the question is 36. It should be noted in this connection whether the Commission's arguments, that the Community legislature has opted which are directed, not against the oper- for a preventive system of control of ative part of the contested order, but concentrations at Community level by against the ground on which the Court of providing for compulsory prior notification First Instance came to that conclusion, are and observance of a waiting period before admissible. On the other hand, the Court of the concentration can be put into effect, First Instance gave its decision without with a possible fine for failure to comply taking further steps in the proceedings, in with those provisions. accordance with Article 111 of its Rules of Procedure, so that the Commission did not have the opportunity to make or explain all its observations. Moreover, neither of those factors precludes an examination proprio motu of whether any of the Commission's 37. The Commission has sole competence arguments is well founded. I therefore with regard to concentrations of a certain consider that those arguments should be size, that is to say, concentrations which examined. exceed the turnover thresholds mentioned in Article 1 of the regulation, known as 'concentrations with a Community dimen- sion'. The Member States may not apply their national competition legislation to 34. The first three arguments put forward such concentrations. As far as control of by the Commission come down in essence concentrations is concerned, that implies a to the nature of its powers or, as the case strict division of powers between the Com-

39. This case concerns the question whether the appellants' action for failure to act is admissible. I am not persuaded by the Commission's first three arguments. It put forward similar arguments before the 42. It follows from the fact that Regulation Court of First Instance in Air France v No 4064/89 gives the Commission the Commission. 1 1The Court of First Instance power to assess certain concentrations that rightly rejected them. The fact that the issue it is also entitled to examine its own in that case was the admissibility of an competence with regard to a particular action for annulment makes no difference. concentration. It can do so both in response to the notification from the undertakings involved in the concentration and on its own initiative, as well as in response to a request to that effect from third parties. Prior notification is therefore not a pre- 40. Firstly, third parties may have an inter- requisite for the adoption of a decision in est in a Commission investigation as to the matter. whether the concentration has a Commu- nity dimension. If the Commission takes the view that it does, that gives rise to a number of legal consequences, both for the undertakings involved in the concentration and for the Member States, as well as for 43. The fact that Regulation No 4064/89 third parties such as the direct competitors does not provide for a complaints pro- of the parties involved in the concentration. Those third parties may be directly and 12 — Case C-68/95 T. Port [1996] ECR I-6065; Case 26/76 Metro [1977] ECR 1875; Case C-198/91 Cook [1992] ECR I-2487; and Air France v Commission, cited in 11 — Cited in footnote 4. footnote 4.

44. I attach greater importance to the argument which the Commission derives from the fact that the appellants only 47. This case is not so much about whether submitted their request to the Commission the call to act, which was dated four months after the competent national 11 September 2001, was late, but about authority had taken a decision whether the request submitted on 25 May 2001 by Schlüsselverlag and Others was not in itself already out of time, with the consequence that an action for failure to act is inadmissible. I sympathise with the Commission's point of view. It is signifi- cant in that regard that the general struc- ture of Regulation No 4064/89 is char- 45. It is clear from the Court's case-law acterised by the requirement of speed (strict that the call to act must be made within a time-limits) and legal certainty for traders. reasonable period of time after it has In my view, that applies not only to the become clear that the institution is not procedures following a notification, but prepared to act or shows no intention of also to a request from a third party who is acting. What is reasonable depends on the of the opinion that a concentration has a actual case. In any event, the case-law Community dimension and that the Com- makes it clear that waiting too long may mission must therefore examine it. Such a have the consequence that the subsequent request by a third party must therefore be action for failure to act is declared inad- made within a reasonable period of time. missible. 13 That is especially true if a national pro- cedure has already been initiated. What is reasonable can vary from case to case. In 13 — Case 59/70 Netherlands v Commission [1971] ECR 639, paragraphs 15 to 19. this case, however, the appellants waited

49. In the light of the foregoing, I propose that the Court should:

(1) dismiss the appeal;

(2) order the appellants to pay the costs.

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