«(Competition – Concentrations – Admissibility – Commitments in the course of the first phase of examination – Serious doubts as to compatibility with the common market – Partial referral to national authorities)»

1.. Competition – Concentrations – Investigation by the Commission – Adoption of a decision declaring a concentration compatible with the common market without initiating the Phase II procedure – Condition – Absence of serious doubts – Commitments entered into by the undertakings concerned likely to make the notified concentration compatible – Assessments of an economic nature – Margin of discretion – Review by the Court – Purpose – No manifest error of assessment (Council Regulation No 4064/89, Art. 6(1))

2.. Procedure – Intervention – Plea in law not raised by the applicant – Inadmissible (EC Statute of the Court of Justice, Art. 37, third and fourth paras; Rules of Procedure of the Court of First Instance, Art. 116(3))

3.. Procedure – Expedited procedure – Whether account to be taken of a plea first raised at the hearing – Infringement of the rights of the defence (Rules of Procedure of the Court of First Instance, Arts 76a and 116(4))

4.. Competition – Concentrations – Assessment of compatibility with the common market – Commitments entered into by the undertakings concerned likely to make the notified concentration compatible – Requirement of compatibility with Article 81 EC – Commitment to grant trade-mark licences containing a clause requiring the licensee to concentrate sales on the territory of a Member State – Whether permissible (Art. 81(1) and (3) EC; Council Regulation No 4064/89, Art. 2(1))

5.. Competition – Concentrations – Administrative procedure – Commitments entered into by the undertakings concerned – Modifications notified after the time-limit – Account taken by the Commission of the modified commitments in order to find the concentration compatible with the common market – Whether permissible – Conditions (Commission Regulation No 447/98, Art. 18(1); Commission Notice on remedies acceptable under Regulations No 4064/89 and No 447/98, para. 37)

6.. Actions for annulment – Natural or legal persons – Measures of direct and individual concern to them – Decision to refer the examination of a concentration to the competent national authorities – Third-party undertaking (Art. 230, fourth para., EC; Council Regulation No 4064/89, Art. 9(3))

7.. Actions for annulment – Natural or legal persons – Measures of direct and individual concern to them – Decision to refer the examination of a concentration to the competent authorities of a Member State – Third-party undertaking (Art. 230, fourth para., EC: Council Regulation No 4064/89, Art. 9(3))

8.. Competition – Concentrations – Investigation by the Commission – Referral of the examination of a concentration to the competent authorities of a Member State – Conditions – Review by the Court – Scope (Council Regulation No 4064/89, Art. 9(2)(a))

9.. Competition – Concentrations – Investigation by the Commission – Decision to refer the examination of a concentration to the competent authorities of a Member State – Discretion of the Commission – Review by the Court – Limits (Council Regulation No 4064/89, Art. 9(3))

10.. Competition – Concentrations – Investigation by the Commission – Decision to refer the examination of a concentration to the competent authorities of a Member State – Conditions – Risk of a fragmented assessment of a single transaction – Irrelevant (Council Regulation No 4064/89, Art. 9(2) and (3))

11.. Competition – Concentrations – Referral of the examination of a concentration to the competent authorities of a Member State – Obligations imposed on those authorities – Limits (Art. 10 EC; Council Regulation No 4064/89, Art. 9)

12.. Competition – Concentrations – Referral of the examination of a concentration to the competent authorities of a Member State – Effects – Exclusive competence of the national authorities to rule on the concentration – Commission may not bind the national authorities as to their substantive findings (Council Regulation No 4064/89, Art. 9(2) and (3))

13.. Acts of the institutions – Statement of reasons – Obligation – Scope – Decision to refer the examination of a concentration to the competent authorities of a Member State (Art. 253 EC; Council Regulation No 4064/89, Art. 9(2)(a) and (3))

JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber) 3 April 2003 (1)

((Competition – Concentrations – Admissibility – Commitments in the course of the first phase of examination – Serious doubts as to compatibility with the common market – Partial referral to national authorities))

In Case T-119/02,

applicant, supported by

intervener,

v

defendant, supported by

interveners,

APPLICATION for annulment of, first, the Commission's decision SG(2002)D/228078 of 8 January 2002, based on Article 6(1)(b) and Article 6(2) of Regulation No 4064/89 and Article 57 of the Agreement on the European Economic Area, not to oppose the concentration between SEB and Moulinex and to declare it compatible with the common market and with the Agreement on the European Economic Area, subject to compliance with the proposed commitments (Case COMP/M.2621 ─

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

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

Registrar: J. Plingers, Administrator,

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

gives the following

...

1.The undertakings concerned

2.National proceedings

3.Procedure before the Commission

1.The relevant product markets

2.The relevant geographical markets

3.Importance of the trade marks

4.Competition analysis

5.Commitments of the parties to the concentration

1.The claim for annulment of the Approval Decision

The first plea: insufficiency of the commitments offered by SEB during the Phase I procedure

(a) Preliminary observations

(b) Licences permit parallel trade in SEB products under the Moulinex trade mark

Arguments of the parties

Findings of the Court

(c) The duration of the licences and of the post-term sales ban is manifestly too short

Arguments of the parties

Findings of the Court

(d) Failure to include France, where competition concerns are the most serious

Arguments of the parties

Findings of the Court

(e) Failure to take into account the geographical impact of the scattering of licences

Arguments of the parties

Findings of the Court

(f) Possibility of different licensees for different Member States

Arguments of the parties

Findings of the Court

(g) Possibility of the renegotiation of commitments following the outcome of the appraisal by the French authorities

Arguments of the parties

Findings of the Court

(h) The absence of a licence in Italy, Spain and Finland

Arguments of the parties

Findings of the Court

(i) Sharing of the market for the Moulinex trade mark

Arguments of the parties

Findings of the Court

(j) Conclusion as to the first plea

The second plea: the commitments were not proposed in time

(a) Arguments of the parties

(b) Findings of the Court

Conclusion as to the claim for annulment of the Approval Decision

2.The claim for annulment of the Referral Decision

Admissibility

(a) Direct and individual concern of the applicant

Arguments of the parties

Findings of the Court

─ Direct interest

─ Individual concern

─ Conclusion

(b) Compliance of the application with the formal requirements of the Rules of Procedure

Arguments of the parties

Findings of the Court

(c) Conclusion as to admissibility

Substance

(a) The first and second pleas: infringement of the principles underlying Article 9 of Regulation No 4064/89 and an unreasonable deviation from the practice established in relation to that article

Arguments of the parties

Findings of the Court

(b) The third plea: infringement of Article 6(1)(c) and (2) of Regulation No 4064/89 in so far as the Referral Decision undermines the Approval Decision

Arguments of the parties

Findings of the Court

(c) The fourth plea alleging infringement of Article 253 EC or, alternatively, of the principle of proper administration

Arguments of the parties

Findings of the Court

On those grounds,

THE COURT OF FIRST INSTANCE (Third Chamber)

hereby:

Lenaerts

Azizi

Jaeger

Delivered in open court in Luxembourg on 3 April 2003.

H. Jung

K. Lenaerts

Registrar

President