Case C-42/01

Portuguese Republic

v

Commission of the European Communities

(Community control of concentrations between undertakings – Article 21(3) of Council Regulation (EEC) No 4064/89 – Protection by Member States of their legitimate interests – Competence of the Commission)

Summary of the Judgment

1. Competition – Concentrations between undertakings – Examination by the Commission – Requirement for Member States to communicate any public interest envisaged in the third subparagraph of Article 21(3) of Regulation No 4064/89 – Power of the Commission to rule as to the compatibility of such an interest with Community law, notwithstanding the absence of communication

(Council Regulation No 4064/89, Art. 21(3), subparas 2 and 3)

2. Acts of the institutions – Statement of reasons – Obligation – Scope – Decision in a context known to the addressee – Summary statement of reasons is sufficient

(Art. 253 EC)

1. The third subparagraph of Article 21(3) of Regulation No 4064/89 on the control of concentrations between undertakings cannot be interpreted as meaning that, in the absence of any communication of the interests, other than those set out in the second subparagraph of Article 21(3), protected by the national provisions, the Commission may not rule by decision on the compatibility of those interests with Community law.

If, in the absence of any communication by the Member State concerned, the Commission were reduced to the sole option of bringing an action for failure to fulfil obligations under Article 226 EC, it would be impossible to obtain a Community decision within the short time-limits laid down by Regulation No 4064/89, with a consequent increase in the risk that such a decision would be taken only after national measures had already irretrievably prejudiced the merger with a Community dimension. Moreover, such an interpretation would render the third subparagraph of Article 21(3) of the said Regulation ineffective by giving Member States the possibility of easily circumventing the controls enacted by that provision.

It follows that, for the power to review public interests other than those specified in the second subparagraph of Article 21(3) of the said regulation, conferred on the Commission by the third subparagraph of Article 21(3), to be effective, the Commission must be recognised as having the power to rule by decision as to the compatibility of those interests with the general principles and other provisions of Community law, whether or not those interests have been communicated to it.

Whilst it is true that non-communication by the Member State concerned may make the Commission’s task more uncertain and complex, in that the Commission might have difficulty identifying the interests protected by the national measures, the fact remains that the Commission always has the possibility of asking the Member State concerned for information. If, notwithstanding that request, the Member State does not provide the information requested, the Commission may take a decision on the basis of the information which it has at its disposal.

(see paras 54-58)

2. The statement of reasons required by Article 253 EC must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent Community court to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 253 EC must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question.

Therefore, if adopted in a context that was well known to the Member State concerned, that is in an action against it for failure to fulfil obligations, a Commission decision in relation to a proceeding under Article 21 of Regulation No 4064/89 on the control of concentrations between undertakings, in the course of which that Member State has not supplied the least indication as to the compatibility with Community law of the public interests which the measures which are the subject of the said decision aim to protect, may be reasoned in a summary manner.

(see paras 66, 69-70)

JUDGMENT OF THE COURT (Full Court) 22 June 2004 (1)

(Community control of concentrations between undertakings – Article 21(3) of Council Regulation (EEC) No 4064/89 – Protection by Member States of their legitimate interests – Competence of the Commission)

In Case C-42/01,

applicant,

v

defendant,

APPLICATION for the annulment of Commission Decision C(2000) 3543 final-PT of 22 November 2000 in relation to a proceeding under Article 21 of Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings (Case No COMP/M.2054 – Secil/Holderbank/Cimpor),

THE COURT (Full Court),

composed of: V. Skouris, President, P. Jann, C.W.A. Timmermans, A. Rosas, C. Gulmann, J.-P. Puissochet and J. N. Cunha Rodrigues, Presidents of Chambers, A. La Pergola, R. Schintgen, N. Colneric and S. von Bahr (Rapporteur), Judges,

Advocate General: A. Tizzano,

after hearing oral argument from the parties at the hearing on 9 September 2003,

after hearing the Opinion of the Advocate General at the sitting on 22 January 2004,

gives the following

‘Concentrations with a Community dimension as referred to by this Regulation shall be notified to the Commission not more than one week after the conclusion of the agreement, or the announcement of the public bid, or the acquisition of a controlling interest. That week shall begin when the first of those events occurs.’

‘1.

2.…

3.Public security, plurality of the media and prudential rules shall be regarded as legitimate interests within the meaning of the first subparagraph.

Any other public interest must be communicated to the Commission by the Member State concerned and shall be recognised by the Commission after an assessment of its compatibility with the general principles and other provisions of Community law before the measures referred to above may be taken. The Commission shall inform the Member State concerned of its decision within one month of that communication.’

‘The interests underlying the decision of the Portuguese Minister of Finance dated [5] July 2000, as reformulated on 11 August 2000, which were not communicated to the Commission, contrary to Article 21(3) of [the Merger Regulation] are not compatible with Community law.’

On those grounds,

THE COURT

hereby,

Skouris

Jann

Timmermans

Rosas

Gulmann

Puissochet

Cunha Rodrigues

La Pergola

Schintgen

Colneric

von Bahr

Delivered in open court in Luxembourg on 22 June 2004.

R. Grass

V. Skouris

Registrar

President