«(Competition – Concentrations – Admissibility – Pay-TV markets and digital interactive television services – Serious doubts as to compatibility with the common market – Commitments in the course of the first phase of examination – Time-limits – Amendment of commitments – Insufficiency of commitments)»

1.. Actions for annulment – Natural or legal persons – Measures of direct and individual concern to them – Decision declaring a notified concentration compatible with the common market – Third-party undertaking which is a direct competitor in a neighbouring market to the dominated market and which participated in the administrative procedure – Admissibility (Art. 230, fourth para., EC)

2.. Procedure – Application initiating proceedings – Procedural requirements – Summary of the pleas in law relied on – Pleas in law not set out in the application – Reference to arguments put forward in the administrative procedure – Inadmissible (Rules of Procedure of the Court of First Instance, Art. 44(1)(c))

3.. Competition – Concentrations between undertakings – Assessment of compatibility with the common market – Creation or strengthening of a dominant position – No significant impediment to effective competition – Permissible (Council Regulation No 4064/89, Art. 2(2))

4.. Competition – Concentrations between undertakings – Investigation by the Commission – Examination according to the impact on the market of the operation in question (Art. 81 EC; Council Regulation No 4064/89, Art. 2)

5.. Competition – Concentrations between undertakings – Investigation by the Commission – Commitments entered into by the undertakings concerned likely to make the notified concentration compatible with the common market – Commitments as to conduct – Permissible (Council Regulation No 4064/89, Art. 2(2) and (3))

6.. Competition – Concentrations between undertakings – Investigation by the Commission – Adoption of a decision declaring a notified concentration compatible with the common market without initiating the Phase II procedure – Condition – No serious doubts – Commitments entered into by the undertakings concerned likely to dispel the doubts which have arisen and to make the notified concentration compatible with the common market – Economic assessments – Discretion – Judicial review – Subject-matter – No manifest error of assessment (Council Regulation No 4064/89, Art. 6(1) and (2))

7.. Competition – Concentrations between undertakings – Investigation by the Commission – Commitments entered into by the undertakings concerned likely to make the notified concentration compatible with the common market – Commitments appearing essentially to relate to adopting conduct which does not infringe Article 82 EC – Commitments not entirely without interest (Art. 82 EC)

8.. Competition – Concentrations between undertakings – Administrative procedure – Commitments entered into by the undertakings concerned – Modifications notified beyond time-limit – Commission taking into account modified commitments and finding the concentration to be compatible with the common market – Permissible (Commission Regulation No 447/98, Art. 18(1))

9.. Competition – Concentrations between undertakings – Investigation by the Commission – Commission's obligations vis-à-vis qualifying third parties – Communication, for prior comment, of the final terms of the commitments given by the undertakings concerned – None (Council Regulation No 4064/89, Arts 6(1)(c) and 18(4))

JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber) 30 September 2003 (1)

((Competition – Concentrations – Admissibility – Pay-TV markets and digital interactive television services – Serious doubts as to compatibility with the common market – Commitments in the course of the first phase of examination – Time-limits – Amendment of commitments – Insufficiency of commitments))

In Case T-158/00,

applicant,

v

defendant, supported by

interveners,

APPLICATION for annulment of Commission Decision SG (2000) D/102552 of 21 March 2000 (Case COMP/JV.37), which declared the proposed concentration by which BSkyB acquired joint control of KirchPayTV to be compatible with the common market and with the Agreement on the European Economic Area, pursuant to Article 6(1)(b) of Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings (OJ 1989 L 395, p. 1),

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Third Chamber),

composed of: M. Jaeger, President, K. Lenaerts and J. Azizi, Judges,

Registrar: D. Christensen, Administrator,

having regard to the written procedure and further to the hearing on 9 January 2002,

gives the following

1.Pay-TV market

2.Market in digital interactive television services

3.Market in the acquisition of broadcasting rights

4.The commitments

1.Standing of the applicant to bring the action

Arguments of the parties

Findings of the Court

Existence of some competition between free television and pay-TV

Future convergence between free television and pay-TV due to digitalisation

Effect of the merger on digital interactive television services

Applicant's participation in the FUN project

Acquisition of broadcasting rights

2.The requirements of Article 44(1) of the Rules of Procedure

1.First plea: error of assessment of the facts in regard to Article 2(3) and (4) of Regulation No 4064/89

Arguments of the parties

Findings of the Court

2.Second plea: infringement of Article 6(2) of Regulation No 4064/89

Arguments of the parties

Findings of the Court

3.Third plea: insufficiency of commitments

Observations on the commitments as a whole

Arguments of the parties

Findings of the Court

Specific observations on certain commitments

Access for third parties to the Kirch platform (commitments 1 to 3)─ Arguments of the parties

─ Findings of the Court

─ Arguments of the parties

─ Findings of the Court

─ Arguments of the parties

─ Findings of the Court

─ Arguments of the parties

─ Findings of the Court

─ Arguments of the parties

─ Findings of the Court

─ Arguments of the parties

─ Findings of the Court

─ Arguments of the parties

─ Findings of the Court

─ Arguments of the parties

─ Findings of the Court

─ Arguments of the parties

─ Findings of the Court

Observations criticising the lack of certain indispensable commitments

Lack of a commitment to have the d-box decoder equipped with a common interface

─ Arguments of the parties

─ Findings of the Court

Lack of a commitment concerning possible links between BetaResearch and Deutsche Telekom

─ Arguments of the parties

─ Findings of the Court

Lack of a commitment requiring the separation of programmes, technology and equipment

─ Arguments of the parties

─ Findings of the Court

4.Fourth plea: alleged procedural irregularity resulting from failure to initiate the procedure under Article 6(1)(c) of Regulation No 4064/89

Arguments of the parties

Findings of the Court

5.Fifth plea: unacceptable curtailment of the rights of third parties to participate in the procedure

Arguments of the parties

Findings of the Court

On those grounds,

THE COURT OF FIRST INSTANCE (Third Chamber),

hereby:

Jaeger

Lenaerts

Azizi

Delivered in open court in Luxembourg on 30 September 2003.

H. Jung

K. Lenaerts

Registrar

President